The Sierra Club and the Alabama Environmental Council won a landmark air pollution decision several weeks ago against the Tennessee Valley Authority that didn’t get a great deal of media attention. The Court of Appeals for the Eleventh Circuit ruled that the State of Alabama’s policy not to enforce emission limits at TVA’s Colbert power plant did not – and could not – change federal law, and that the citizens’ suit to enforce the law against TVA should not have been dismissed by the Alabama Federal District Court. While this case received very little media attention, in my opinion, it was most significant.
In the case, the citizen groups alleged that TVA had over 8900 violations of rules prohibiting emissions of dark smoke (“opacity”). In its ruling the court of appeals knocked TVA’s central defense was that because the state of Alabama gives TVA around 1,700 free air pollution violations every year before taking any enforcement action, citizens were prevented from suing TVA for those violations.
The court rejected that argument and described the situation this way: “It’s a brassy argument. The court stated:
TVA points to nothing in the record that gives the slightest support for the notion that ADEM in proposing the 20% opacity limitation, or EPA in approving it, counted on industries getting away with more pollution than stated in the limitation because of ineffective enforcement.
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