Court: TVA can 'ignore' EPA order

Court: TVA can 'ignore' EPA order

By CHARLES SEABROOK
cseabrook@ajc.com

The Tennessee Valley Authority "is free to ignore" enforcement orders from the Environmental Protection Agency to clean up pollution at several of its coal-fired power plants, a federal appeals court in Atlanta ruled Wednesday.

The decision from a three-judge panel of the 11th Circuit Court of Appeals did not address the merits of the government's case against TVA, so it shed little light on a string of similar pollution-enforcement actions against utilities, including Southern Co.

Instead, the ruling focused on procedure, saying that for EPA to prevail, it must sue TVA in federal district court and prove its charges. "Until then, TVA is free to ignore [the EPA's orders] without risking the imposition of penalties for noncompliance," the court said. EPA has already taken other utilities to court, but it treated TVA, a federal corporation, differently.

EPA referred inquiries to the Justice Department, which said that the two agencies will pore over the decision to determine their options. TVA officials had no immediate comment.

In the case, EPA charged that the TVA made major improvements at seven of its aging coal-burning plants but did not install required pollution controls as required by a provision of the Clean Air Act known as "new source review."

The case was closely watched by environmentalists and other utilities.

Environmentalists hoped a ruling against TVA would strengthen the EPA's cases against several other utilities in the South and Midwest, including the Atlanta-based Southern Co., which face allegations similar to those against TVA.

The utilities, including TVA, claim that improvements at their coal-burning plants were routine maintenance and not major expansion, and therefore didn't violate the new-source provision. They wanted a decision for TVA that would ratify that argument.

"We hoped that the ruling would clarify the difference between a major expansion and routine maintenance," said Southern Co. spokeswoman Laura Varn, "but it not do that."

Instead, the ruling centered on the EPA's enforcement methods. Judge Gerald Tjoflat wrote that EPA "manufactured the procedures they employed on the fly, entirely ignoring the concept of the rule of law."

Justice Department spokesman Blaine Rethmeier said Wednesday's decision will have no impact on the other cases, because EPA filed lawsuits against the other utilities.

The court ruled that EPA should regard government-owned TVA as a "private energy company" for enforcement purposes.

Scott Segal, a lawyer for six large utilities, praised the ruling. "This is an unmistakable signal from the 11th Circuit that there are deep procedural problems with the application of the EPA program in the TVA case," he said.

Environmentalists said that even though the ruling did not affect the other new-source cases, it was a setback.

"This ruling — issued on a 'Code Red' day of high smog levels throughout the Southeast — effectively means that TVA is allowed to continue to harm public health in the Southeast, by emitting excessive levels of harmful air pollution from its coal-fired power plants," said Steve Smith of the Southern Alliance for Clean Energy.