Valley So Low: One Lawyer's Fight for Justice in the Wake of America's Great Coal Catastrophe

by Jared Sullivan

Over the next week, he learned that TVA and local police had kept out more than just lawyers. Officers briefly detained members of United Mountain Defense, an environmental group, after they tried to enter the disaster area and collect samples.

In the U.S., federal agencies, such as TVA, are shielded from most private lawsuits under sovereign immunity, a doctrine derived from English common law that’s rooted in the idea that the state cannot commit a legal wrong.

Cold streams drain these weather-worn mountains, which are older than the rings of Saturn, and race through deep, wild gorges, cut away over the course of some three hundred million years.

The region’s crushing poverty challenged whether a democracy could care for its people, and whether the American experiment had vigor and vitality.

Before the waters rose, TVA used eminent domain to force out twenty thousand families whose homesteads would disappear beneath the rising reservoirs; their stories of losing their land would become part of Southern folklore.

TVA later became, and remains, the federal government’s sole producer of tritium, a radioactive isotope that’s a critical component of every warhead in the U.S. nuclear arsenal.

In 1959, Congress agreed to let TVA, desperate for cash, issue bonds and self-finance its operations through electricity sales. This decision meant that TVA no longer needed taxpayer dollars, but this change—this grave compromise—put profits, instead of the public interest, at the center of its concerns for the first time. As TVA’s coal-fired power plants came online, it gradually lost interest in or outright abandoned its other efforts.

The company’s conservative, Brooklyn-born founder, Joseph Jacobs, once wrote that “environmentalists, in their elitist arrogance, often do more harm than good.” Yet his company earned billions of dollars remediating environmental disasters.

By 1973, the plant there and TVA’s other coal-fired facilities contributed 53 percent of all toxic sulfur-dioxide emissions in the southeastern U.S. and 14 percent of all such emissions nationwide, though its customers comprised less than 1 percent of the population.

He had helmed TVA since 2006 and pulled nearly $4 million a year in total compensation, making him the highest-paid federal employee.

(Congress had excused TVA from having to follow government salary limits about a dozen years earlier.)

One immediate obstacle was that the EPA didn’t consider coal ash hazardous waste, thanks to decades of coal-industry lobbying.

A report that contained this information was long withheld from the public by the George W. Bush administration, which had been friendly to both the oil and coal industries.

Jacobs staff had insisted that the fly ash posed no legitimate threat to the workers, yet they’d worried among themselves that the stuff had inundated their office trailer.

To Jim Scott, it was obvious why TVA hadn’t publicized everything it knew about fly ash: then, as now, fly ash was marketable, and acknowledging its hazards might hurt TVA’s ability to sell

In a report, written by none other than Jacobs Engineering, the four federal agencies determined that the sediment at the bottom of the Clinch and the lower Emory contained such large quantities of radioactive waste and posed such a threat to public health that they forbade any activity that would disturb the river bottom, such as building a dock, without a special permit. Moreover, the four federal agencies presumed that any sediment dredged from the waters would contain at least some radioactive material, and they vowed to avoid any activity that would disturb the sediment. But in 2008, the coal-ash disaster had done just that, overwhelming the Emory River and stirring up the river bottom.

But it was also about whether the working class could beat the C-suite; whether “hillbilly lawyers,” as Dupree called them, could beat elite corporate defense attorneys; and about whether strong evidence could beat fat pocketbooks. Perhaps above all, though, the case was about whether the federal government had failed its people.

Following the trial, Representative Peter DeFazio, a Democrat from Oregon who served as the committee chair, promised to inquire further into TVA’s handling of the Kingston cleanup. Nothing came of it. DeFazio and other members of his committee accepted campaign donations from Jacobs Engineering in the months after the federal jury’s verdict in the workers’ case, as did Tennessee representative Chuck Fleischmann, whose district included the city of Kingston. The Senate also did nothing. The EPA did nothing, the White House did nothing, the state of Tennessee did nothing. The Tennessee Bureau of Investigation said it would launch an investigation but, in the end, did nothing.