News: CJ Exclusives

Cooper Appeals TVA Suit to U.S. Supreme Court

AG’s office claims appeal ‘of exceptional importance’ to N.C. health

The next stop for North Carolina Attorney General Roy Cooper’s pollution-control lawsuit against the Tennessee Valley Authority could be the U.S. Supreme Court.

In filings submitted last week, Cooper asked the nation’s highest court to review a ruling by the 4th U.S. Circuit Court of Appeals last year that upended North Carolina’s case against the multistate utility.

Cooper gained a landmark victory in 2009 when a federal district court judge required TVA to install emissions control devices on four of its coal-fired power plants. But a three-judge panel of the appellate court reversed that decision in July. The reasoning: accepting Cooper’s argument that TVA emissions constitute a public nuisance would allow judges to apply overly vague standards to the issue.

Cooper’s petition to the Supreme Court says the appeal “is of exceptional importance,” in part because of health risks to North Carolina citizens due to pollution from TVA’s Tennessee and Alabama power plants.

“At issue is whether people in North Carolina will continue to due as a result of TVA’s excess emissions — even though these deaths could be readily averted by installing and operating modern pollution control equipment,” wrote Cooper’s lawyers in the appeal.

A policy report published in 2008 by the John Locke Foundation disputed Cooper’s health claim contention, arguing that actual health benefits reaped by additional pollution-control measures would be “a tiny fraction of the amount claimed by the Attorney General’s experts.”

Cooper’s petition also argues that the 4th Circuit ignored past decisions by appellate courts and the Supreme Court when it reversed the lower court’s ruling last year.

The nine justices on the Supreme Court now have the option of accepting or rejecting the appeal. In the latter case, the 4th Circuit’s ruling would stand. The high court receives thousands of petitions each year but accepts only a fraction of them.

Cooper’s office has invested $7.7 million in the lawsuit so far.

For a copy of the state’s petition (PDF), click here.

David N. Bass is an associate editor of Carolina Journal.