Alabama is leading the fight against a federal court ruling that would undercut state authority to regulate its own groundwaters and would result in debt to the Tennessee Valley Authority (TVA), causing rate increases that could leave many customers in Alabama and other states unable to afford electricity.
Joined by Kentucky Attorney General Andy Beshear, Alabama Attorney General Steve Marshall filed an amicus brief on Tuesday evening in the U.S. Circuit Court of Appeals for the Sixth District arguing a federal judge’s order to excavate a coal ash pond in Tennessee “usurps States’ authority to regulate groundwaters” in the case of Tennessee Clean Water Network v. TVA.
According to the brief: “The lower court’s remedy, ordering closure of the Gallatin ash ponds by excavation and removal, would cost approximately $1.8 billion to 4.0 billion. As TVA will pass this cost on to its captive utility customers, such a costly remedy will have an unanticipated, immediate, and profound impact on utility ratepayers. If this Court upholds the lower court’s remedy, and closure-by-removal is subsequently applied throughout the Sixth Circuit, the resulting costs to utility customers would be astronomical, costing in the tens-of-billions of dollars.”
Under the Clean Water Act (CWA), Congress designated states as the main controllers of groundwater pollutants.The issue, however, is whether or not “hydrological connectivity” (the theory that the groundwaters might connect to navigable waters) could extend federal control to groundwater pollutants. Using this approach, a lower court has ordered that the TVA clean up a coal ash pond at its Gallatin coal plant using a close-by-removal procedure rather than the TVA’s preferred close-in-place method.
“Not only is this matter clearly designated for state rather than federal regulation and the proposed remedy unnecessary and overwhelmingly costly, but the theory of hydrological connectivity could be extended to ridiculous circumstances,” said Marshall.
“For example, owners of large parking lots could find themselves subject to CWA citizen suits as storm water runoff mixes with petroleum products discharged by cars parked on pavement, and may make its way into groundwater and eventually ‘navigable water.’ The same logic extends to runoff from state, county and municipal roads and highways.”
16 other states are joining Alabama and Kentucky in support of the brief: Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming.