Not in My Backyard! The pollution showdown btw N.Carolina & Tennessee

[iNow]

Ever had a neighbors tree branch hang over your fence and on to your property? Perhaps the shade from the branch killed plants in your garden, or maybe it ruined the siding of your home. You have a right to cut the parts of the branch which cross your property line, sometimes with the caveat that you do so in a way which doesn't damage the vitality of the tree itself.

 

Why is it any different with clean air? When you live by the border of a state or country which emits carcinogenic agents into the air, should you not have recourse to have that addressed without being forced to flee? Do you not have justification and right to ensure that this air gets cleaned up so you and your family do not get sick from it?

 

 

In perhaps the ultimate case ever of NIMBY (not in my backyard), there is a showdown precisely along these lines peculating [EDIT] meant percolating[/EDIT] through the courts. It seems that North Carolina is not too happy about dying due to coal plants in Tennessee, nor about an appeal's court having overturned the original injunction to add clean technology to those plants.

 

 

 

http://www.scotusblog.com/blog/2010/09/08/major-fight-on-airborne-pollution/

 

The state of North Carolina is pressing the Fourth Circuit Court to reconsider a ruling overturning a mandate for pollution controls on out-of-state power plants.

 

Arguing that a federal appeals court has raised an environmental threat that could linger “for generations to come,” the state of North Carolina on Wednesday asked for a new look at states’ options for limiting airborne pollution coming across their borders from out-of-state power plants.

 

<...>

 

At issue is a federal judge’s order requiring TVA — the government’s huge power-generating project — to spend upwards of $1 billion to install new pollution-control equipment on four coal-fired power plants in Tennessee and Alabama. Those plants are within 100 miles of North Carolina’s border, and that state contended that its citizens and its environment are seriously threatened by particulate matter and ozone that is spread downwind from the four plants’ smokestacks.

 

Relying on the anti-nuisance laws of those states, North Carolina’s lawsuit in a federal court in North Carollina sought an order aimed at all 11 of TVA’s plants that burn coal in their generators. The federal judge, however, concluded after a trial that the order for immediate installation of new control equipment should be confined to the four plants nearest to North Carolina.

 

<...>

 

Urging en banc rehearing, the state argued that the Circuit Court decision conflicts directly with a Supreme Court ruling in 1987 — International Paper Co. v. Ouellette — holding that, when pollution crosses state lines, a lawsuit based on common-law nuisance may be pursued, provided it is based on the law of the pollution-originating state.

 

 

Here is a more thorough take on the matter via .pdf:

 

 

http://www.kslaw.com/Library/publication/8-10Law360Buster,Butterfield.pdf

 

Following a bench trial, the federal district court in North Carolina had issued an injunction requiring the immediate installation of additional air emissions controls at four Tennessee Valley Authority power plants. By even North Carolina’s estimate, installation of these controls would have cost in excess of $1 billion. In a decision with significant ramifications to the evolution of modern public nuisance law, the Fourth Circuit reversed [that injunction, remanding the case with instructions to dismiss the action in its entirety].

 

<...>

 

While the facts of North Carolina v. Tennessee Valley Authority are distinguishable in certain respects from those typically found in a garden-variety environmental nuisance case, the language and reasoning used in the Fourth Circuit’s decision applies just as well to most environmental tort claims and thus is significant for that reason.

 

<...>

 

These arguments are certain to be repeated by defendants in future environmental toxic tort cases. In every common law nuisance action involving allegations of harm to persons or property from substances in the environment, the court must determine whether the levels of substances released to the environment and present on plaintiff’s property are actionable. This is true irrespective of whether the plaintiff seeks damages or injunctive relief, because in either case the court is setting a standard by which conduct is to be governed. The Fourth Circuit here joins the numerous other courts that have held that unless substances exceed regulatory levels, there can be no action for nuisance. In so holding, the Fourth Circuit has gone further than any other court to date in articulating the strong legal and public policy basis for such a rule. The decision in North Carolina v. Tennessee Valley Authority may therefore well be a harbinger of rulings to come from other courts confronted with this issue.

 

 

 

Where do you, my posting partners of various ideologies on liberty and environmentism land on this issue?

What do YOU think this means and how do YOU think it should go?

 

Is this perhaps the iron fist of big government control coming down to squash free market enterprise and business, or is it just plain common sense and a small step toward avoiding the illness and self-detriment our energy choices cause us as a species in this quickly changing world?

Edited September 9, 2010 by iNow

[Pangloss]

Why is it any different with clean air? When you live by the border of a state or country which emits carcinogenic agents into the air, should you not have recourse to have that addressed without being forced to flee? Do you not have justification and right to ensure that this air gets cleaned up so you and your family do not get sick from it?

 

In perhaps the ultimate case ever of NIMBY (not in my backyard), there is a showdown precisely along these lines peculating through the courts. It seems that North Carolina is not too happy about dying due to coal plants in Tennessee, nor about an appeal's court having overturned the original injunction to add clean technology to those plants.

 

I'm a bit confused by the opinion that they have a right to pursue this, but that it's also a case of NIMBY, which is a pejorative.

 

But sure, I agree that they have the right to pursue it. If the evidence is scientifically sound then changes should take place. As I understand it coal power can be quite dirty, and if output is falling on residents and inadequate precautions are being taken then that needs to be addressed.

[iNow]

I'm a bit confused by the opinion that they have a right to pursue this

Perhaps reviewing the .pdf linked in the OP would ameliorate that.

 

It's not there for decoration, you know. Here's another to help: http://environmentalappealscourt.blogspot.com/2008/02/state-of-north-carolina-v-tennessee.html

[Pangloss]

So you were just being sarcastic, and don't think their claim is warranted? It's just a case of NIMBY, their health problems are not real, and they shouldn't be asking for change?

[iNow]

Maybe a rational person could reply the OP? I have no idea what Pangloss is talking about now.

[Sisyphus]

I think what Pangloss means is that "NIMBY" is a pejorative term implying a hypocritical position: I want this to exist, just not near me (even though it has to be near somebody in order to exist). Since you seem to support the lawsuit, also calling it NIMBY is confusing. I'm guessing you just didn't mean in it that sense.

 

How about we not be so quick to insult people when we don't immediately understand one another?

[iNow]

How about we talk about the subject raised in the OP? How about that?

[jackson33]

Is this perhaps the iron fist of big government control coming down to squash free market enterprise and business, or is it just plain common sense and a small step toward avoiding the illness and self-detriment our energy choices cause us as a species in this quickly changing world? [/Quote]

 

iNow, assuming this is you point; TVA, is "big government" (they own TVA) and if they are operating in a manner not permitted "free market enterprise" (apparently what NC is claiming), then IMO, there is a problem. Otherwise called "targeted" compliance and not advisable.

 

If your point is "use of alternative energy sources and the promotion of", then your point has not been made clear and the OP comment "Not in My Backyard!", somewhat hard to understand. However as a "species" and for at least 100 years, we have been exploring alternative sources for energy, for a variety of reasons, making a great deal of headway in many areas, personally my favorite 'geothermal'.

 

As for the NC actions, it smells of a political agenda but with in their rights. I would think China/India are guilty of polluting many international areas directly and indirectly the world, if that's important to you. You already know my opinions on AGW, if that's your point, IMO we're still with in the range for nature to handle any problems, while maybe some of the species can and will be affected.

[ParanoiA]

I have to side with North Carolina on this. I'm sorry if it costs TVA bunches of money to not poison their neighbor's air, but it's not compelling to cite hardship to trump someone's rights - or a state full of someones.

 

It's kind of nice to see the federal government being invoked in a matter that absolutely is theirs to resolve, though.

[JohnB]

Interesting situation.

 

I have to agree with the reversal though. If the TVA is compying with all relevent statutory requirements, then they really have no case to answer. Any other conclusion will make society unmanageable.

 

There are emission standards for cars too. What is to stop somebody from suing Ford over city pollution even though their cars meet the standards? The same principle applies.

 

For that matter, what would be the point of having any form of pollution standards at all if they can be overridden by the whim of a judge?

 

Frankly it stinks of political point scoring. If North Carolina was even remotely serious they would not be accepting electricity from those power stations and would have shut down all vehicular and air traffic in the State as both are terribly polluting. Somebody is trying to score points with their constituents somewhere by showing that they are "doing something".

 

Or it could be a new take on the old "passive smoking" campaign.

Edited September 10, 2010 by JohnB

[iNow]

Or it could be a new take on the old "passive smoking" campaign.

And this is sort of how I see it, just writ on much larger scale. We know for a fact that the smoke and soot and other particulates are carcinogenic, and the idea is that they don't have a right to poison the air I breathe... Even when that poison is coming from a neighboring state.

[JohnB]

Not quite what I meant. While I agree with the principle from the anti smoking campaign I've always thought the passive smoking bit was overblown. A busdriver gets lung cancer. Was it really the passengers smoking or simply 25 years of driving stinking deisel buses through polluted cities? Is it really passive smoking causing the non smokers to get lung disease, or mostly from simply living in stinking, polluted cities?

 

Like it or not, the passive smoking campaign gave authorities an "out". Blaming smokers was a lot easier and cheaper and had far less risk than actually taking action and cleaning up the polluters in their own back yards.

 

In this case North Carolina gets the "out". By pushing the case in the terms iNow describes, NC gets to blame a lot of problems on the pollution from the TVA. NC is therefore absolved of responsibility for action within its own territory.

 

None of the above is meant to argue against passive smoking btw, it certainly has an effect. However, if a Local, State or Federal Authority is given the choice that a rise in health complaints is due to poor and poorly enforced pollution standards (ie. It's the fault of the relevent authority) or due to "smokers".........Yeah, it's really hard to pick which way they will jump, isn't it?

[iNow]

I've always thought the passive smoking bit was overblown. A busdriver gets lung cancer. Was it really the passengers smoking or simply 25 years of driving stinking deisel buses through polluted cities? Is it really passive smoking causing the non smokers to get lung disease, or mostly from simply living in stinking, polluted cities?

What makes you think they are mutually exclusive? There is solid data that passive smoke increases incidence of cancer. Nobody is saying there are not other sources of cancer, only that the known ones we can avoid should, in fact, be avoided.

 

 

 

Like it or not, the passive smoking campaign gave authorities an "out". Blaming smokers was a lot easier and cheaper and had far less risk than actually taking action and cleaning up the polluters in their own back yards.

Huh? If we CAN clean something up, why shouldn't we? Because there are other bigger problems, you suggest we should ignore the smaller ones? That doesn't make sense, John.

 

 

In this case North Carolina gets the "out". By pushing the case in the terms iNow describes, NC gets to blame a lot of problems on the pollution from the TVA. NC is therefore absolved of responsibility for action within its own territory.

Again, not sure where you're coming from. NC is not requesting scrubbers be added to the smoke stacks be added in Tennessee instead of cleaning up their own factories, but in addition to it. What makes you think this is an either/or proposition?

 

 

However, if a Local, State or Federal Authority is given the choice that a rise in health complaints is due to poor and poorly enforced pollution standards (ie. It's the fault of the relevent authority) or due to "smokers".........Yeah, it's really hard to pick which way they will jump, isn't it?

And I'm saying that it makes sense to clean up the air wherever we can. I'm saying I don't want that crap in my backyard, so if they can clean it up, they should... even though there are ALSO other big problems out there.

[JohnB]

iNow, I don't actually disagree with you, but I think you missed my point. It's not what was done, but how and why it was done.

 

Look around and see how the campaign was used to create a class of "untouchables". Segregated as to where they are allowed to go. It wasn't about cleaning up the air, it was about who to blame. (Granted that laws differ from place to place and my home State might be a bit more draconian than most.) A lot of the things I have no problem with. As a smoker (who is trying to quit) I hated people smoking in restaurants and other enclosed eateries. On more than one occasion I've asked smokers whether they would rather smoke outside or eat the ciggie they're smoking while I'm dining. But does it really make sense to ban smoking in sidewalk cafes where you are 3 feet from pollution belching trucks? Really?

 

Sydney isn't a heavily polluted city, yet air tests show that while driving in peak hour there the pollution levels inside a car are some 9 times the legal limit for a building. So which is doing the most damage? The 2-3 hours a day that people spend in a highly polluted environment while commuting or the smoker that sits near them for 5 minutes when they have a cup of coffee?

 

It's about getting bang for your buck. As an analogy, some Australian States have annual vehicle checks to keep the clunkers off the roads, my State doesn't. Figures tell us that vehicle defects are responsible for less than 1% of traffic accidents so we don't bother. Drink drivers are responsible for 40% of accidents so we spend the money getting them off the roads instead. Get the clunkers off the roads and reduce the carnage by 1%, or get the drunks off the road and reduce it by 40%, it's not a hard choice.

 

I view the way the passive smoking campaign was done as a distraction. Having seen a few, I know that those nice, pink, healthy lungs that we saw in TV ads didn't belong to people who lived in a city. All people who live in cities have lungs full of crap smokers or no, the only real difference is that smokers lungs have more crap in them. But that's not how it is depicted, is it? The entire message was that non smokers would have pink, healthy lungs if it wasn't for the nasty smokers around them.

 

According to Cancer Research UKthe most common lung cancer in non smokers is adenocarcinoma. This is now the most common lung cancer in the US and its rate is rising. Since the rise in that form of cancer in smokers is linked to low tar ciggies and that smokers therefore drag more deeply on the cigarette, what would cause the rate to rise in non smokers? (Remember also that general smoking rates have declined.)

 

If I was a betting man, I'd bet quite heavily that the rise in adenocarcinoma in non smokers is due to the rise in the number of people exercising. Jogging, walking and generally getting a good cardio workout makes you breathe more heavily and so they are drawing the general crap deeper into their lungs while they work out.

 

I'm not saying that it has to be a case of "either or", but if we're serious about cutting cancers and general illness in our societies, let's go for the big ones first. Remove the most dangerous things first. Cleaning the air in our cities so that the most dangerous thing is passive smoking would be wonderful, because the air would be clean again.

 

A final thing to chew on. I saw some interesting figures some years ago that showed the incidence of lung cancer in both smokers and non smokers was inversely proportional to income. Why this should be so is obvious and it clearly points to where we should be taking action compared to where we are taking action.

 

Again, I'm not saying "either or", but I think that the emphasis has been misplaced.

 

And I'm saying that it makes sense to clean up the air wherever we can. I'm saying I don't want that crap in my backyard, so if they can clean it up, they should... even though there are ALSO other big problems out there.

Agreed. I'm willing to bet though that NC will use this to show that they're "doing something" and use it as a distraction to prevent people noticing that they're not actually doing something about their own backyard.

 

With most forms of polluting, I find way too much "Blane Game" and smoke and mirrors rather than real progress. I know there has been progress, pollution is down from the 70s, but we should have done better and I'm disappointed.

Edited September 23, 2010 by JohnB

[iNow]

iNow, I don't actually disagree with you, but I think you missed my point.

I think it's quite possible that I still am missing it. Are you suggesting that mandating cleaners on smoke stacks at coal plants doesn't give enough "bang for the buck" in terms of impact to air quality? Are you saying that it's misplaced effort to focus on cleaning coal plants and we should focus elsewhere?

 

I'm really not sure what you're saying now that we're talking about second hand smoke, joggers, and exhaust pipes from delivery vans.

 

 

Tennessee coal plants spew smoke into the air which is shared by neighboring states like North Carolina.

North Carolina passed an injunction to mandate scrubbers on those smokestacks.

A judge tried to overturn it and limit the injunction to only 4 of the original 11.

 

 

So, the question is, how do people feel about all of this? Good idea? Bad idea? Could be done another way? If so, how?

 

Agreed. I'm willing to bet though that NC will use this to show that they're "doing something" and use it as a distraction to prevent people noticing that they're not actually doing something about their own backyard.

How do you figure this? Aren't they cleaning the air which they breath by mandating scrubbers on smokestacks? I guess I'm unsure how you can suggest they're "not actually doing something."

[JohnB]

I think it's quite possible that I still am missing it. Are you suggesting that mandating cleaners on smoke stacks at coal plants doesn't give enough "bang for the buck" in terms of impact to air quality? Are you saying that it's misplaced effort to focus on cleaning coal plants and we should focus elsewhere?

It is hard to articulate what I mean without sounding like an "either or" situation.

 

I sort of find it strange to be mandating scrubbers on smoke stacks 200 miles away while diesel rigs belch clouds of black smoke at every gear change. The distant smoke stacks have an effect, yes, but the semis are closer and much more immediate to the populations health. That's what I mean by misdirection.

 

It's like when a river flows through a number of States (or Shires in our case.) Each authority is far most vocal about water quality where the river comes in than they are about water quality when it leaves.

 

If NC had pure and pristine air, then they can complain all they want because that makes sense. But complaining about smokestacks 200 miles away while your cities are full of black smoke belching trucks strikes me as a bit silly.

 

I find most govs would use this type of thing to show that they are "doing something" (by making someone else do something) while at the same time hiding the fact that they are doing very little themselves. Smoke and mirrors.

 

Does that make it a bit clearer?

Edited September 23, 2010 by JohnB

[divagreen]

It is hard to articulate what I mean without sounding like an "either or" situation.

 

I sort of find it strange to be mandating scrubbers on smoke stacks 200 miles away while diesel rigs belch clouds of black smoke at every gear change. The distant smoke stacks have an effect, yes, but the semis are closer and much more immediate to the populations health. That's what I mean by misdirection.

 

It's like when a river flows through a number of States (or Shires in our case.) Each authority is far most vocal about water quality where the river comes in than they are about water quality when it leaves.

 

If NC had pure and pristine air, then they can complain all they want because that makes sense. But complaining about smokestacks 200 miles away while your cities are full of black smoke belching trucks strikes me as a bit silly.

 

I find most govs would use this type of thing to show that they are "doing something" (by making someone else do something) while at the same time hiding the fact that they are doing very little themselves. Smoke and mirrors.

 

Does that make it a bit clearer?

 

Pfft.

 

NC made it illegal to smoke in most public places in January 2010. RJ Reynolds has been downsized and demoralized due to the popular bent of environmental sympathies. (Think of the local tobacco farmers as far as an inquiry into the local economy and the impact of such.) So no more economic smokescreens, so to speak, haha.

 

Big trucks? Is that your argument? There are emissions control on vehicles and factories, however an allowance seems to be made for the grandfathering clause, which is a biggey, but that has been in use less and less, as systemic maintenance requires further renovation.

 

Kind of what they are doing on the borders...

[iNow]

Does that make it a bit clearer?

Absolutely, and thank you for clarifying so well.

 

I guess I'm reluctant to accept the overall premise, though, until you somehow at least demonstrate that North Carolina is, in fact, failing to take other actions to mitigate the aforementioned air quality and pollution problems. Until then, it's like scolding a child for "maybe" failing to do their homework.

 

 

Btw - I finally got the chance to try Australian honey while in Singapore these past 2 months for work. Holy crap! You were totally right! New Zealand honey is pretty nice, too. Sorry... Off-topic. B)

[JohnB]

I guess I'm reluctant to accept the overall premise, though, until you somehow at least demonstrate that North Carolina is, in fact, failing to take other actions to mitigate the aforementioned air quality and pollution problems.

Will this do?

 

Raleigh, N.C. — As the Triangle grows, traffic grows, and so grows air pollution.

 

Currently, the area does not comply with the Environmental Protection Agency's standards for air quality.

 

"Our air pollution problems don't come from factories, they primarily come from cars," said John Hodges-Copple, the planning director for the Triangle J Council of Governments,

 

You might also be interested in the various cases here that cover the last 10 years or so. NC sprays E. Coli infected sewage around people homes and then calls for scrubbers on stacks 200 miles away on the grounds of "Health"? It's spelt H-Y-P-O-C-R-I-T-E-S.

 

The bottom line is that if you look at the crud infested skyline of any city, the crap that the citizens are breathing in every minute of every day and ask yourself "What is causing this and how can we fix it?". Your answer won't be about stopping smokers or putting scrubbers on smokestacks 200 miles away will it?

 

I'm only picking on NC here because they chose to make an issue of it. I believe that every gov in the Western world has dropped the ball on this. Every Federal and State gov, including my own. The emmission standards for 2030 should have been brought in by 1990. We limit smokers for "Health" reasons, NC wants the scrubbers for "Health" reasons, but these measures won't make a dent in the amount of general crud in the air that is making people sick. Diesel exhaust contains more and more carcinogenic chemicals than cigarette smoke, if you really want to do something for "Health" reasons, then tackle the big ones, don't just fiddle fart around the edges to make bugger all difference.

 

 

That's my home city on a bad morning. (Although there's probably a fair bit of natural fog in there) If our gov was really out to improve the air quality and health of the citizens, would they;

a/ Ban smoking completely?

b/ Put scrubbers on the powerplants 200 miles away?

c/ Do something about the bloody cars and trucks?

 

What they will actually do is;

d/ Make a big noise about reducing "passive" smoking while creating a maligned underclass for everybody to hate (which stops people from realising just how much they dispise politicians) and make a big noise about putting scrubbers on the smokestacks 200 miles away to give people "clean air". Meanwhile the city still chokes on it's own muck.

 

*Sorry for the rant, but it's something that bugs the sh*t out of me. The passive smoking campaign was done in such a way that many now believe that the only reason non smokers get lung cancer is because of smokers. This means that time and effort is wasted bashing smokers rather than actually pressuring to clean up the muck in the air that is causing respiratory diseases.

 

iNow, which honey did you get? Capilano is our basic shop brand and a sort of generic mix. Or did you get one of the more specialty honeys? I get some from a family that lives in the rainforest about 1/2 an hours drive away, just wonderful.

[iNow]

Will this do?

 

 

 

You might also be interested in the various cases here that cover the last 10 years or so. NC sprays E. Coli infected sewage around people homes and then calls for scrubbers on stacks 200 miles away on the grounds of "Health"?

Not really, no. Doesn't really do, as I knew the answer to my question before asking it.

 

I could just as easily point to all that North Carolina DOES do to support the environment and help the public's health, and that would essentially counter the point. Where we get into a bit of a sticky situation is in how we arbitrarily categorize some actions as helpful and others as just window dressing.

 

Anyway, I more or less agree with your point, as you do mine, and you just have some preconceptions about governments emphasizing what is easy over what maximizes impact. I think the issue in this thread is about more than health, though. It's also about global climate, since those smokestacks on the coal plants contribute pollution AND soot AND AGW gasses.

 

Here's more on what NC is doing to help the environment. I'm not defending them or trying to pretend they are the most amazing environmental government on the planet or anything, just offering a simple counter:

 

http://www.environmentnorthcarolina.org/results

 

 

 

iNow, which honey did you get?

Not sure, but it was not Capilano... I know that. I actually picked up 3 or 4 different ones. I'm in Hong Kong now for a little while, and I've got them in my locked suitcase ready for transport.