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.
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.”