A blockbuster settlement involving the Tennessee Valley Authority, NPCA, EPA, and others guarantees clear skies in the Great Smokies’ future.
By Scott Kirkwood
In May 1992, Don Barger began his first week as director of NPCA’s Southeast regional office by walking into the superintendent’s office of the Great Smoky Mountains and asking him, “What’s the number one most important issue affecting your park?” The answer: Air pollution. Nearly 20 years after putting that item at the top of his to-do list, Barger is close to crossing off a major element of that effort, thanks to work from the park’s own researchers, a devoted legal team, the Environmental Protection Agency, and dozens of other local players who have been relentlessly focused on coal-fired power plants operated by the Tennessee Valley Authority (TVA), the area’s chief polluter.
For years, the 11 coal-fired power plants operated by TVA had people wondering if the Smokies were named for air pollution, rather than the naturally occurring mist caused by humid air cooling rapidly in the Appalachian mountaintops. Sulfur dioxide, nitrogen oxide, mercury, and carbon pollution were being spewed into the sky, obscuring the views and filling hikers’ lungs with every breath.
It’s not as if the problem lacked a solution. In 1970, President Richard Nixon signed the Clean Air Act into law, setting emissions standards for pollution from coal-fired power plants and other sources. Amendments passed in 1977 designated certain national parks and wilderness areas as “Class 1 areas,” requiring the highest standard of protection. But equally important, the legislation moved beyond simply capping emissions at the source, and for the first time, set standards to be measured by receptors on the landscape. It was no longer enough to simply cut emissions; the results had to be seen on the ground—or rather, in the sky. New power plants were required to use the best possible technology, and could not cause adverse impacts to Class 1 areas. Older plants made things a little more complicated.
“Lawmakers recognized that it would be difficult to require an entire fleet of coal-fired plants to purchase expensive control equipment overnight, so existing coal-fired plants were essentially grandfathered in,” says Barger. “Plant operators were allowed to keep burning uncontrolled until they had to make major modifications. At that point, they were required to use the best available retrofit technology—in other words, they had to clean it up. Of course, the question then became: What constitutes a modification?”
Even as TVA repaired and modified plants that had been built in the 1950s, the utility insisted the changes were merely Band-Aids, when in fact most would consider them major surgery. Meanwhile, park managers in the Smokies had spent years measuring the impacts of air pollution and had clearly documented “adverse impacts” by around 1992. Yet every time the state of Tennessee was asked to approve a new pollution source permit, it did so, regardless of the Park Service’s evidence that the park was being adversely affected.
In the 1990s, things started to change. A coordinated campaign made the public more aware of air pollution in the region. Cap-and-trade legislation was passed, requiring power plants to cut emissions of sulfur dioxide—and by around 2000 it began to work, lowering pollution and increasing visibility without drastically affecting consumers’ electric bills. An agreement among state and federal agencies in Tennessee effectively forced the state to acknowledge that by issuing a permit for new source, it essentially disagreed with the Park Service’s data regarding the effects on the park. Meanwhile, those older power plants kept getting older.
Then, in 2000, NPCA filed a lawsuit, insisting that TVA was in direct violation of the 1977 amendments to the Clean Air Act requiring that older plants be upgraded with modern pollution controls. Our Children’s Earth Foundation and the Sierra Club were co-plaintiffs.
“We began the litigation to see if we could get an answer to the question: How do we get these older coal-fired plants retired or cleaned up?” says Barger. “Most of these plants were built in the ‘50s and ‘60s, in anticipation of a 30-year lifespan, so by the time the 1980s rolled around, TVA had to replace miles and miles of tubing, and make other serious modifications to keep them viable, yet they maintained that they didn’t have to clean them up.” The debate over the definition of “modification” was surfacing all over the country, of course; NPCA’s suit focused solely on TVA’s plants, which are polluting the national parks. But as the legal case rose up the court system on various appeals, it became clear that any decision made by a higher court could affect other polluters as well.
Finally, on April 14th of this year, a blockbuster settlement was announced. TVA will phase out 18 units at coal-fired power plants by 2018 and install modern pollution controls on 36 additional units, permanently retiring an unprecedented 2,700 megawatts of dirty coal-fired electricity. (For more, see sidebar, this page.) This settlement constitutes one of the largest pollution reduction agreements in U.S. history and will dramatically improve air quality in Great Smoky Mountains National Park.
“I credit TVA for making the right decision,” says Barger. “On the one hand, we had to sue them for a decade to get them to do the right thing, but they are also faced with the challenge of providing low-cost power to 8.5 million rate payers. Meanwhile, their old plants were just getting older, the impacts on the park were indisputable, and they understood we were not going to back off. In the end, I believe TVA’s leaders made the right move for their business, their customers, and the environment.”
Much of the credit for the success goes to the team of lawyers who took on the work pro bono. NPCA’s general counsel, Libby Fayad, led the work of George Hays, William Moore, Wade Davies, Reed Zars, and Mike Costa, none of whom was employed by huge legal firms that weresimply tapping a fraction of their workforce; each took a huge risk in forging ahead on a case that might very well have earned them nothing. But at every point, every appeal, every new hurdle thrown up by TVA’s army of lawyers, they believed the facts were in favor of the national park, and kept at it, sometimes at great personal risk. In the end, TVA agreed to pay a portion of their fees, but local residents and park visitors will always owe them a huge debt of gratitude for their time and their incredible dedication to the cause.
Now that the agreement is in place, how quickly will it make a difference for hikers in the Smokies?
“We got into this mess incrementally and we’re going to get out of it incrementally,” says Barger. “But if you look at the huge gains that were made in the last ten years when sulfur dioxide limits were enforced, you can see that reductions lead to immediate effects. This agreement has a prescription, a timetable, and a penalty for going beyond the time table, and it’s all enforceable in court. We have a guarantee that the progress that we made over the last decade is going to continue into the next decade.”
It’s true, the work is not yet done, but victories like this one are rare, so Barger and others are taking the opportunity to breathe it in.
“On Monday morning, I crawled out of a tent after four days and three nights of carrying a 44-pound pack through the Smokies, huffing and puffing and breathing very deeply,” says Barger. “And my home is just a few miles from the Bull Run coal-fired plant. So in a very personal sense I know about the intense long-term damage being inflicted on this area, the biological diversity that we’re supposed to be protecting, and the absolute need to ratchet down those pollutants. It all seemed like a really intractable issue when I got involved two decades ago, but this victory proves that persistence pays off in the end.”