As a harsh late afternoon sun beat down on Asheville’s city sidewalks Wednesday, July 27, a crowd of about 100 people gathered outside the Buncombe County Courthouse bearing signs with slogans like “Gas is so last century,” “Declare a climate emergency,” and “Solar is sexier.” Two of them held aloft artistic representations of a bee and polar bear, orange paper flames encircling a nearby flagpole.

Western North Carolina residents recently made it clear they do not support Duke Energy Progress’s request for a 15 percent rate increase for its customers.

As required by law, the North Carolina Utilities Commission conducted a public hearing to gather input on the corporation’s request. More than a dozen people testified during the quasi-judicial hearing held in Franklin, and a majority of the speakers were against any increase at all.

In response to public opposition to its proposed 45-mile Foothills Transmission Line, Duke Energy has settled on a revised plan that will eliminate the need for the transmission line and Campobello substation.

Western North Carolina for now has dodged concerns that it was getting short shrift in a legal settlement intended to compensate the region for air pollution blowing in from dirty coal plants operated by the Tennessee Valley Authority in neighboring states.

A group of activists arrested for civil disobedience during protests of Duke Energy’s new coal plant last year have been let off the hook for a second time.

Activists were arrested for trespassing in two separate demonstrations last year, one in front of Duke’s headquarters in Charlotte and one in front of N.C. Governor Beverly Perdue’s mansion in Raleigh. Civil disobedience was a planned part of both protests challenging the construction of a new coal plant in WNC by Duke.

One of the organizers behind both events was Avram Friedman of Sylva, the executive director of the Canary Coalition, a statewide air quality advocacy group. Friedman is also waging his second run this year for state political office with a challenge to Rep. Phil Haire, D-Sylva.

Prosecutors this month dismissed the charges stemming from the protest in Raleigh. The charges stemming from the Charlotte protest, which involved 43 people on Earth Day last April, had been dropped as well.

Those arrested were preparing a “necessity defense” to prove their action was justified, Friedman said.

“The ‘necessity defense’ holds that defendants intentionally committed a crime in order to prevent a much greater harm,” Friedman explained. “Duke Energy and cooperating state officials are perpetrating great and unnecessary harm against public health, the environment and the economy of all North Carolinians by constructing a new coal-burning power plant that will produce massive quantities of toxic air and water pollutants for the next 50 years.”

The exonerated defendants maintain that the Cliffside plant is not needed to meet North Carolina’s future energy demand, but is only being constructed to increase Duke Energy’s profits at the expense of the citizens of North Carolina, Friedman said.

Friedman points to expansion by Duke Energy last year outside its core service territory. Duke signed a contract to provide 1,000 megawatts to five energy co-ops in South Carolina and has another contract in the works to provide 600 megawatts outside its service area in South Carolina.

The new coal plant, if completed, will provide only 800 megawatts of capacity. The sale of power outside its service area shows that Duke Energy already has a huge surplus of power and is merely building the new plant to fuel expansion and increase profits, despite the negative economic and health impact of the plant, Friedman said.

North Carolina ratepayers face an increase in their utility bills next year, partially to pay for construction of the new Cliffside power plant.

Friedman is running for office to bring the issue to public light, including complicity of state officials and leaders to allow the plant’s construction.

The state should turn down Duke Energy’s request for a nearly 13 percent hike in utility rates and instead encourage the giant utility to do a better job with the revenues and power-creation capacity it already owns.

There are several good reasons to turn down the request, but perhaps most relevant is the state of the nation’s economy and the utility’s dogged pursuit of more electricity customers and more business at a time when nearly everyone is searching for ways to cut their energy usage. Instead of building additional capacity and seeking new customers, Duke should be modernizing its system, spending more on green energy, and encouraging the public to make use of every energy savings technology that exists.

The proposed rate hike includes a 13.5 percent residential hike increase and a 4.8 percent increase for fuel costs, meaning families served by the utility would see an 18 percent jump in their power bills in 2010. Duke says it needs the money to modernize equipment, help pay for the new Cliffside coal plant and to help service its debt load.

But there are problems with the request, and nearly all of them came up at a public hearing before the Utilities Commission that was held Sept. 22 in Franklin. The overwhelming opinion at that meeting —including that from the Public Staff, a part of the Utilities Commission that represents consumers — was against allowing Duke to implement the increase.

According to Duke, it sold 2 percent less power in 2008 than in 2007 to its North Carolina customers, and company projections are that electricity use will continue to decline. Many would see that as a good sign that we are becoming more energy efficient and that the greenhouse gases associated with burning coal for electricity are in decline. Duke, however, is seeking to expand its business to new areas in South Carolina.

It has already agreed to sell wholesale power to five co-ops, a decision that prompted South Carolina’s state-owned Santee Cooper utility to scrap plans for a new coal plant in the Florence area. North Carolina regulators say Duke’s phased plan for selling power to the co-ops should protect this state’s consumers from rate hikes linked to the sale, but Duke critics argue that the South Carolina deal comes at the expense of people in this state. When Duke is asking for a rate increase to help build a new plant in North Carolina at the same time energy usage here is decreasing, the link to the selling of power to South Carolina is hard to overlook.

Of course there’s also the issue of the Cliffside plant in and of itself. Building dirty, polluting coal-fired power plants is simply out of step with today’s consumers.

Of course, the timing of the rate hike request could not be worse. Unemployment is at 9.8 percent nationally, foreclosures are still occurring at an alarming rate, and many of those who have jobs have taken pay cuts or a reduction in hours. Duke wants to prepare for the future, but at this time almost every business in the country is hunkering down and trying to hold on. It’s the wrong time to push a rate hike on families, small business, industry and local governments.

No matter how you spin this proposal, it doesn’t look any better. The Utilities Commission needs to tell Duke Energy that the proposed rate hike is a bad idea that it won’t approve.

Swain County commissioners expressed their disapproval of an 18 percent hike in electric bills being sought by Duke Energy to pay for construction of a new coal plant.

Most of Jackson, Macon and Swain counties get their power from Duke.

In a resolution passed unanimously last week, commissioners protested the rate hike on the grounds that this region is partially supported by hydropower, a far cheaper form of power.

Duke has 10 hydropower dams straddling five rivers in the region. Swain County commissioners said they had always been told by Duke that the electric rates in the region would be lower than elsewhere because of those hydropower operations.

The water is free, unlike the fuel that powers coal, natural gas or nuclear plants. Duke’s rates are currently 31 percent below the national average. Other than annual adjustments to cover fluctuating fuel costs, there hasn't been an baseline rate increase since 1991.

Swain County forwarded its resolution to the N.C. Public Utility Commission, which holds final say on a rate increase.

As a regulated monopoly, Duke cannot raise power rates without permission from the N.C. Utility Commission. Duke operates under a profit ceiling. However, Duke claims that it needs to raise rates to cover the construction costs of a new $2.4 billion coal plant being built near Hickory and the increased cost of coal. The company has another $2 billion in capital investments in new power lines and pollution controls on plants.

Of the 18 percent hike, 13.5 percent would cover capital costs for projects like the new coal plant while 4.5 percent is intended to cover the increased costs of coal, according to Avram Friedman, director of the Sylva-based Canary Coalition. One theory is that Duke is asking for a bigger rate increase than it expects to get in anticipation of bargaining down.

Friedman proposes an alternative solution: don’t build the new coal plant.

Duke says the new coal plant is needed to meet the future demand for electricity. Friedman says the public should scale back its appetite for power. Instead of building a new coal plant, the money should be invested in energy efficiency programs and renewable energy, Friedman said.

“The Utility Commission must stop allowing Duke Energy to waste customers’ money while risking an environmental and health tragedy,” Friedman said. “North Carolina wants to be part of the national surge toward energy efficiency and clean power that is creating thousands of jobs everywhere.”

A bill passed by the state legislature in 2007 allowed utilities to start billing ratepayers to front money for new plants while still under construction. Previously, utilities couldn’t enact a rate hike tied to a new power plant until that plant came on-line. It forced utilities to secure financing for new plants through the financial markets rather than on the backs of rateplayers. Under the old financing rules, Friedman doubts the coal plant would have been built.

Friedman was among 43 arrested for a peaceable mass demonstration against the coal plant at Duke Energy’s headquarters in Charlotte on Earth Day this April, going down in history as the largest act of nonviolent civil disobedience on climate change in the country.

A recent court victory by the state of North Carolina will require the Tennessee Valley Authority to reduce emissions at four coal-fired power plants close to the state line and the Great Smoky Mountains National Park. Once these modifications are complete, it should substantially help clean the air we breathe every day. But we hope this decision is a tipping point in the long-term effort to force utilities, manufacturers and others to make use of the latest technologies as this country makes the move toward cleaner, smarter, and less use of polluting fossil fuels.

The TVA has long been a poster child for companies that embrace a philosophy whereby the environment always plays second fiddle to economics. Although some of its plants were modernized over the years, the utility giant also regularly relied on technicalities in the 1970 Clean Air Act to keep from meeting the law’s stated principles. Those interpretations of the law allowed TVA to modernize its plants without installing the newest pollution-control technologies.

That meant Western North Carolina and east Tennessee residents never benefited from the Clean Air Act as we should have. The dirty air from the giant coal-fired utility plants became the major contributor to dirty air that obscured mountain views, damaged trees, streams and wildlife, and led to asthma and other pulmonary-related illnesses in many residents, especially children and the elderly.

The court ruling could become very symbolic in the effort to convince other utilities and private companies to do a better job of cleaning their emissions and reducing them. North Carolina’s court case was preceded by the passage of its own Clean Smokestacks Act in 2002. North Carolina’s two utility giants — Progress Energy and Duke Energy — forged a compromise with legislators. The utilities would clean up their emissions while being allowed to slightly raise power bills to pay for the work. In other words, citizens paid to clean up their air.

The TVA ruling comes just as the Bush Administration is leaving office. That administration’s wars in the Middle East and its economic policies grabbed most of the headlines over the last eight years, but it also did little to lead with new ideas about energy and pollution. In fact, it continually sided with corporate lobbyists who argued to maintain the loopholes in the Clean Air Act.

The Obama administration is promising a different strategy. Our dependence on imported oil is seen as a foreign policy liability and our energy policy is viewed as outdated. By moving toward greener technology, smarter energy use and less reliance on coal and oil, jobs will be created and we will become the world leader in the emerging new energy industries.

North Carolina acted on its own to clean up its act, and TVA had to be ordered to do the right thing. In both cases, the right decision was made. Perhaps this victory for residents of Western North Carolina is symbolic of a new era where the flashpoint between the economy and energy doesn’t always mean sacrificing the environment. That would be a welcome change.

It was the ultimate David and Goliath battle. North Carolina officials, fed up with coal-fired power plants pumping pollution into their state, took on the nation’s largest public power company — the Tennessee Valley Authority — and won.

The landmark ruling, handed down Jan. 13 in federal court in Asheville, forces TVA to spend more than $1 billion upgrading emissions controls on four of the company’s coal-fired power plants that are located within 100 miles of the North Carolina border.

The lawsuit called on TVA to clean up nine plants, but the ruling will only apply to the four closest to the state’s border. Such a lawsuit has been in the state’s game plan for years. But first, the state had to clean up its own utilities, achieved with the NC Clean Smokestacks Act in 2002. The act was intended to give North Carolina the “moral high ground” to demand TVA do the same. The act directed the attorney general to use all resources, including litigation, to demand emissions reductions from polluting plants in other states.

Attorney General Roy Cooper referred to the state’s lawsuit as “a last resort” after requests to get TVA to clean up failed.

The outcome of the lawsuit marks a crucial victory for Western North Carolina in particular, a region that has long born the brunt of TVA’s damaging effects. Air pollution here has damaged lungs, clouded vistas, poisoned fish and pumped soil and water with toxic chemicals.

“TVA is responsible for decreasing the health of this entire region,” said Will Harlan, an ultra-athlete and executive editor of Blue Ridge Outdoors magazine who testified at the trial. “They’ve had many opportunities to modernize their equipment and install pollution control devices at low costs, and every time they’ve chosen to skirt the law, find loopholes, and put profit over public health. It’s finally catching up to them — the public is not standing for it anymore.”

A varied legacy

TVA wasn’t always seen as the bad guy. When the authority was established in 1933, it was hailed for bringing electricity to rural Appalachia, and along with it jobs and prosperity. Although many locals resented TVA for manipulating their natural resources, it can be easy to turn a blind eye to something potentially harmful if it’s supporting one’s livelihood, says Avram Friedman, a Sylva resident and the director of the Canary Coalition, a clean air advocacy group based in Western North Carolina. Just look at some of today’s examples.

“They’re aware of it, but still see the dollar signs,” said Friedman. “You go down to Forest City and a lot of people are employed by Duke Energy, and it’s a tremendous boon to the economy, so they’re blinded by the health effects. People in Canton are in denial about the impact of Blue Ridge Paper.”

But the same technology that was hailed for improving life in rural Appalachia has also made the region’s residents sick. Alarmingly, North Carolina ranks fourth in the nation in terms of the number of deaths (1,800 each year) linked to power plant particulates, according to information on the North Carolina Division of Air Quality’s Web site.

Asthma is the most common illness linked to power plant pollution. One in three children in Western North Carolina have experienced an asthma attack, according to statistics quoted by Friedman.

But it was the terrifying experience of a healthy adult — Harlan — that experts at the trial relied on as they attempted to prove the direct link between TVA’s air pollution and health problems.

Harlan was an unlikely victim. He has no history of the disease, and as an ultra-distance runner he possesses healthier lungs than most of the population. But on a 72-mile run through the Great Smoky Mountains National Park, Harlan’s breathing became labored and he felt a heavy tightness in his chest.

“My breathing got really bad to the point where I could barely walk,” Harlan recounts. “It was really scary.”

Alone and stumbling over rocks in the dark, Harlan couldn’t make it to the shelter where his wife was waiting with food and water five miles away. He waited out the attack, then finished his run the next morning. Immediately, Harlan set out to find what had caused his bizarre experience.

The several specialists Harlan visited concurred that he had suffered a pollution-induced respiratory attack. Unbeknownst to Harlan, there had been an ozone warning in effect for the Park the day of his run.

The attorney general’s office heard about Harlan’s experience and asked him to be a witness in the trial against TVA.

“Up until this point it had been a lot of numbers. This helped put a face on the effects of air pollution,” Harlan said.

The strategy proved damning to TVA’s case. The attorneys didn’t challenge Harlan’s testimony, instead opting to get him off the stand as quickly as possible.

“Evidence and statistics are easily debated, but they don’t’ want to see that human side, because that can be really eye opening,” Harlan said. “They’d rather keep it in the realm of facts and statistics.”

TVA’s expert epidemiologist tried to cast doubt on the link between air pollution and illness. He “expressed skepticism about whether exposure to (particulate matter) results in adverse cardiopulmonary effects,” according to the final ruling handed down by Federal Court Judge Lacy Thornburg.

The judge didn’t buy it.

“The court believes that TVA’s experts’ suspicion of this conclusion is unwarranted, indeed, their skepticism runs counter to the vast majority of scientific studies,” the ruling states.

Despite Thornburg’s ruling, Harlan says TVA officials were still reluctant to take responsibility for harming the health of citizens in WNC.

“There was no remorse,” he said.

Environmental carnage

The silent witnesses to the devastating effects of TVA’s air pollution — streams, forests, and animals — played an equally integral role in the trial.

“North Carolina alleges that airborne particles from TVA’s electricity generating plants enter North Carolina in unreasonable amounts threatening ... the beauty and purity of a vast natural ecosystem,” Thornburg stated in his ruling.

Even plants in the Great Smoky Mountains National Park suffer the harmful effects of ozone pollution. Research at Purchase Knob in the Haywood County section of the park has linked high-elevation ozone to leaves withering and yellowing, and the plants producing fewer seeds for reproduction.

Impacts on the ecosystem are all to familiar to scientists like Bill Jackson, an air resource specialist with the U.S. Forest Service based in Asheville. According to Jackson, some of the most harmful effects are observed in the region’s streams and rivers. Sulfur dioxide released by coal burning power plants creeps into watersheds and erodes important elements like calcium and magnesium that help keep acidity levels low.

“We have taken quite a few water samples in WNC, and we have documented watersheds that do not have a buffering capacity,” said Jackson. “The acid neutralizing capacity should be a large, positive number. We have streams that when we take measurements, they’re negative.”

If a stream is too acidic, it’s no longer a conducive environment for the many organisms that live there. The smallest organisms, like algae, are the first victims. If the algae dies, insects that rely on it as a food source are threatened.

“And of course we have fish feeding on the insects, and this chain occurs,” says Jackson.

Fish are common victims of pollutants from coal-burning plants. Fish hatcheries in Cherokee have reportedly attributed die-offs in the trout population to sulfur dioxide emissions.

In September, the Department of Environment and Natural Resources issued a warning that mercury linked to coal-burning plants had contaminated the fish, particularly walleye, in Fontana Lake. It was devastating news to locals like Leonard Winchester, whose daily fishing routine and diet were disrupted by the warning.

Winchester, who ate the fish several times a week, was so concerned he sent off blood samples to be checked for mercury contamination. Luckily, he was OK, but has significantly scaled back how much walleye he eats.

“Before I ate a huge plate of walleye, nothing else. There were all these fixings my wife insisted on making but I ate the walleye. The rest I left sitting there,” Winchester said. “Now it might be a little more rationale. I eat two or three pieces of walleye and some of that other stuff.”

He also throws back large walleye, instead keeping the smaller ones with less mercury accumulation in their flesh. Winchester believes the mercury was coming from TVA plants, carried over the mountains in rain clouds. He hopes mercury levels will go down now that TVA has to clean up.

But according to Jackson, the environmental impacts of TVA’s air pollution may, in some cases, be irreversible.

“Some watersheds will improve. Others will not,” he said.

Seeing through the haze

Though it may take a while to see noticeable improvements from TVA’s emissions controls, one change will take effect quickly, says Jackson — namely, improved visibility in the mountains.

Over the years, a growing cloud of haze caused by particulates from coal-burning power plants has slowly enveloped the Smokies, making it difficult to see a long distance. Since 1948, visibility has dipped from an average of 73 miles to 25 miles, according to the National Park Service.

The impact of decreased visibility on the economy of the mountain region was a critical part of North Carolina’s suit against TVA. The state argued that the haze caused by TVA’s air pollution was costing the state billions of dollars in tourism revenue.

But the views will clear quickly once TVA installs the emission controls mandated in the lawsuit, Jackson said.

“Improvements in visibility start occurring within days that the pollution control devices are operating,” he said. “If we could shut off all the coal fired power plants, in two or three days visibility everywhere would be absolutely fantastic.”

Even though TVA is only putting controls on four power plants, “you will see a difference,” Jackson said. “You’ll have more days that are clearer and that you can see further.”

A day in court

In the beginning, Harlan and many others harbored doubts that North Carolina could really win its case against TVA.

“I knew that the TVA had been getting away with things for years,” Harlan said. “There were not a lot of previous cases that had succeeded in stopping TVA from doing whatever it wanted. I knew the cards were stacked against us, and I didn’t know if that could be overcome.”

Harlan thinks the case will encourage other states to assert their rights to clean air.

“Now, any state can sue any other state for pollution crossing the border,” he said. “That will lead to federal intervention and force the EPA to take more serious action.”

Friedman says the lawsuit’s impact all depends on how TVA responds to it.

“If they take care of it now, they set a great precedent, but if they spend resources appealing the process, it could go on for years and years,” he said.

But real improvement to air quality will only occur when coal-burning plants are replaced by cleaner technology, said Friedman.

“I think ultimately, what’s really going to have an impact is when we take measures to reduce energy consumption and begin to replace power plants,” he said.

But will consumers demand a move toward alternative technologies? Harlan thinks so, as people become more aware of the detrimental effects of burning coal.

“I think there’s been a very heightened awareness of how coal-fired electricity generation is harming the health of people,” he said.

Power companies are aware of this shift in public perception, Harlan said.

“I think they are realizing that the tide is turning against them, and they’re kind of desperately trying to change their image by promoting clean coal as a way of greenwashing their image,” he said. “I think people are seeing through the latest clean coal gimmick, and it will require (the power companies) to make meaningful changes.”

By Julia Merchant • Staff Writer

Coal-fired power plants and renewable energies took center stage as topics at last Saturday’s lieutenant governor’s debate in Asheville.