UNC law professor’s legal brief prompts TVA reform

With 30 days and the help of nearly 100 UNC students, professor Donald Hornstein was able to help North Carolinians breathe a little easier.

Hornstein and his students prepared a brief supporting North Carolina’s claims that air pollution from Tennessee Valley Authority coal plants was causing harm to the state’s economy and residents.

The brief was meant to be taken to the U.S. Supreme Court as part of the state’s case, but in a historic settlement North Carolina and TVA announced they would compromise without going to court.

The authority, a U.S. government-owned energy company, agreed to immediately implement changes that could transform the way it produces electricity by 2017.

The dispute between the state and the authority began in 2006 when N.C. Attorney General Roy Cooper decided to sue the company, claiming pollutants from four of its plants near the North Carolina border were contaminating the state’s air and causing health problems for its citizens.

Hornstein said pollutants, such as nitrogen oxide and mercury, coming from the authority’s coal-fired plants have damaged much more than the state’s economy and scenery.

Chemical emissions from the four plants have been linked to the early deaths and birth defects of some North Carolinians, he said.

Nearly five years and two court decisions later, Hornstein was asked by officials at the department to write an amicus brief on the case, which would supplement the state’s argument and help convince the Supreme Court to hear its plea.

Hornstein said because the state has to keep a good relationship with the fourth circuit court — which dismissed the state’s case against the authority ­­— he was able to take on issues in his brief the state could not.

“I completely supported the state,” Hornstein said. “My principal strategy was to focus on the things we could do that the state had touched on but was not able to develop as strongly as we could.”

The state called on Hornstein to conduct research and complete what he referred to as a “friend of the court effort,” for state justice officials.

With the help of some of his students, the professor worked at “light speed” to complete the amicus brief in 30 days.

Hornstein said 15 law students and nearly 100 undergraduate students from his environmental law and policy class researched topics including the history of the case and the Supreme Court justices’ voting records on environmental policy.

Third-year law student Elizabeth Gregory said the opportunity to work with Hornstein on such a historic case was an amazing way to gain firsthand experience.

“Here is an example of how professors and everyday people can really make a big difference in the life of the state, and it was a huge opportunity to be a part of that,” Gregory said.

Gregory, who is studying media law, said she researched several of the Supreme Court justices and their voting histories on environmental and administrative law.

“You tailor the brief to the justices,” she said. “You’re trying to convince the judges that you know aren’t on your side and make them think twice about the issue.”

One of Hornstein’s former students, Doug Debaugh, helped organize the students’ efforts on the project.

“I started working at the law school afterward so I was the one person who was there throughout the whole thing,” Debaugh said.

“TVA had been in trouble with EPA and other environmental groups over the years and the settlement that was announced was far bigger than our lawsuit alone precipitated,” Hornstein said.

He said the authority will shift some of its focus to alternative energy sources such as nuclear power and natural gas and that the changes will benefit the environment and ultimately lower the cost of energy for the authority’s customers.

Gregory said Hornstein goes out of his way to devote extra time and attention to his students.

Gregory said, “His passion for what he does is so evident, and by working with professor Hornstein students are able to gain firsthand experience in the things they’re interested in.”

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