Lex Rex: The Case for Reforming

The Tennessee Valley Authority

In 1644, Scottish theologian Samuel Rutherford published Lex Rex or in English “The Law is
King.” Those two little words summarize the theory behind American democracy. No one, not even the
king himself, is above the law. When the law is hijacked and government is allowed to do whatever it
pleases, the foundations of liberty are undermined. Unfortunately, this great principle of freedom has
been ignored by an organization known as the Tennessee Valley Authority. It is because the TVA
threatens our security, health, and liberty that my partner Joshua and I stand resolved: that the United
States Federal Government should significantly reform its environmental policy.

Observation I. Definitions

Reform: to put or change into an improved form or condition

http://www.merriam-webster.com/dictionary/reform

Environmental Policy: Environmental Policy defines how environmental concerns are approached from
a governmental or organizational perspective, often with the goal of addressing and solving
environmental problems. [The Environmental Education Dictionary [a monster company]

“Environmental Policy: Educational and Career Outlook” May 20,

2004, http://www.enviroeducation.com/majors-p ... y.html#Top]

Tennessee Valley Authority: The Tennessee Valley Authority (TVA) is a federally

owned corporation in the United States created by congressional charter in May 1933 to
provide navigation, flood control, electricity generation, fertilizer manufacturing, and economic
development in the Tennessee Valley.

http://dictionary.babylon.com/tennessee_valley_authority/

Observation II. Inherency

Under this observation we would like to point out one fact of the status quo:

The TVA uses Federal Authority to dodge accountability.

Environmental Integrity Project, a nonpartisan, nonprofit organization established in March of 2002 by

former EPA enforcement attorneys to advocate for more effective enforcement of environmental laws,
Outside the Law, Restoring Accountability to the Tennessee Valley Authority,
http://www.environmentalintegrity.org/pdf/newsreports/EIP_TVA_Report_FINAL.pdf December, 2009
TVA is a federal utility that uses its “quasi-federal agency” status to shield itself from accountability for
environmental mishaps and noncompliance…. In addition, the Justice Department (DOJ) and U.S.
Environmental Protection Agency (EPA) have been reluctant to enforce environmental laws at TVA coal
plants.

Why can justice not be brought to the TVA? The report goes on to explain why stating:

Under the unitary executive theory, DOJ cannot sue another federal agency since both are part of the
same government, and such a lawsuit would conflict with DOJ’s duty to provide legal representation to
both federal agencies. This theory has roots in earlier Executive Orders, No. 12,146 and No. 12,088 ,
issued over 30 years ago, that encourage federal agencies to resolve disputes outside the courtroom.
However, TVA has independent litigating authority, and does not rely on DOJ for its defense. TVA hires
private law firms to defend against litigation, just like any other private utility.

We will now turn our attention to the impacts of the status quo in:

Observation III. Harms

Because it cannot be held legally accountable, the TVA has gained for itself a poor track record of
dealing with environmental concerns. Specifically, there are three areas in which the TVA has
failed to uphold federal environmental standards:

Failure #1: The Clean Air Act.

The Tennessee Valley Authority has repeatedly violated the Clean Air Act.

The Institute for Southern Studies, End TVA’s Special Treatment Under the Law Environmentalists Urge
Obama, http://www.southernstudies.org/2009/12/end-tvas-special-treatment-under-law-enviros-urge-
obama.html, December, 2009

Among the illegal actions pointed to in the letter were violations of Clean Air Act permitting
requirements at over a dozen of TVA's coal-fired units and the bypassing of pollution controls at three
different TVA coal plants. TVA failed to report these actions as required -- actions that ultimately
resulted in over 2 million pounds of unreported emissions being dumped into the air.

The increased pollution from TVA smokestacks causes 15,000 annual illnesses.

News Sentential Staff, TVA-NC Suit over Emissions Goes to Trial on Monday,
http://www.knoxnews.com/news/2008/jul/09/tva-nc-suit-over-emissions-goes-trial-monday/, July 9, 2008

TVA’s smokestacks constitute a “public nuisance.” The North Carolina attorney general’s office claims
out-of-state power-plant emissions are responsible for an estimated 15,000 illnesses in North Carolina
each year.

Failure #2: The Clean Water Act.

The TVA has violated federal water quality standards.

Environmental Integrity Project, a nonpartisan, nonprofit organization established in March of 2002 by
former EPA enforcement attorneys to advocate for more effective enforcement of environmental laws,
Outside the Law, Restoring Accountability to the Tennessee Valley Authority,
http://www.environmentalintegrity.org/pdf/newsreports/EIP_TVA_Report_FINAL.pdf December, 2009

EIP examined toxic pollutant discharges from TVA’s 11 coal-fired power plants, and found that TVA
regularly discharges toxic pollutants into surface waters at levels far exceeding federal Water Quality
Criteria standards. Although TVA releases large amounts of toxic pollutants, TVA’s arsenic discharges
are of particular concern.

(The report later outlines the impact of heightened arsenic levels)

Arsenic is a known carcinogen and ingestion of even low levels “can cause nausea and vomiting,
decreased production of red and white blood cells, abnormal heart rhythm, damage to blood vessels, and a
sensation of “pins and needles” in hands and feet.

Failure #3: Coal Ash Management.

On December 22, 2008, a large TVA coal ash pond collapsed, spilling thousands of gallons of toxic
sludge into the environment. The disaster was analyzed by:

Dave Cooper, “The Worst Environmental Disaster since Chernobyl”,

http://kentucky.sierraclub.org/newsroom/newsletter/pdf/news0209.pdf, in a February, 2009
article said:

“I believe that this huge and terrible catastrophe may be the worst man-made environmental
disaster since Chernobyl. It is difficult to grasp the immense size of this toxic nightmare.TVA
released 5.3 million cubic yards (one billion gallons) of coal waste into tributaries of the
Tennessee River, the drinking water source for Chattanooga and communities downstream in
Alabama, Tennessee and Kentucky. The Exxon Valdez spill was 11 million gallons. It will take
approximately 250,000 truck loads to haul away the ash. If workers fill one dump truck every
5minutes and work 24-7, it will take about 2.5 years to clean up the mess.”

Who is at fault for the spill? The spill finds it source in the lack of accountability within TVA.

Tennessee Valley Authority Inspector General, Review of the Kingston Fossil Plant Ash Spill,
http://oig.tva.gov/PDF/09rpts/2008-12283-02.pdf, July, 2009

Our review disclosed attitudes and conditions at the TVA’s fossil fuel plants that emanate from a culture
that impacted the way TVA handled coal ash. Over the last 9 months, the OIG has conferred with the
TVA board and TVA management about what we perceive to be systemic problems that have their
genesis in the culture. While we recognize that there is no one culture at the TVA, and instead there are
subcultures that vary from one organization to another within TVA, there are common themes we find
antithetical to the level of transparency and accountability expected of a government utility.

This is important, for larger spills could also occur at other TVA plants.
Environmental Integrity Project, a nonpartisan, nonprofit organization established in March of 2002 by
former EPA enforcement attorneys to advocate for more effective enforcement of environmental laws,
Outside the Law, Restoring Accountability to the Tennessee Valley Authority,
http://www.environmentalintegrity.org/pdf/newsreports/EIP_TVA_Report_FINAL.pdf December, 2009

Although the coal waste spills at Kingston and Widows Creek grabbed media headlines, TVA operates
much larger coal waste impoundments and ponds with even greater potential to cause environmental
damage. Most of TVA’s CCW surface impoundments and ponds are larger than Kingston, and some are
more than three times larger than Kingston’s coal waste disposal area. In addition, many of TVA’s coal
waste impoundments are unlined, and pollutants can leach into ground or surface waters.

When my partner and I discovered these injustices, we were burdened with the need to act. We would
now like to present to you our plan to solve the harms of the status quo.

Observation IV. Plan

A. Mandates
i. Executive orders 12,146 and 12,088 shall be clarified to allow the Department of Justice
and the Environmental Protection Agency to bring legal suits against the Tennessee
Valley Authority.
ii. All environmental regulations and legislation shall hereby apply to the Tennessee Valley
Authority. Immunity from such regulations for the TVA shall henceforth be denied.
B. Our plan shall be carried out by the President of the United States and Congress and enforced by
U.S. court system.
C. Funding shall come from General Federal Revenues.
D. The Affirmative team reserves the right to clarify and expand on this plan as needed in future
speeches.

Observation V. Solvency
The Affirmative plan would empower the DOJ and EPA to bring the TVA under environmental
regulations.

Environmental Integrity Project, a nonpartisan, nonprofit organization established in March of 2002 by

former EPA enforcement attorneys to advocate for more effective enforcement of environmental laws,
Outside the Law, Restoring Accountability to the Tennessee Valley Authority,
http://www.environmentalintegrity.org/pdf/newsreports/EIP_TVA_Report_FINAL.pdf December, 2009

A directive from the White House or Justice Department, clarifying that the unitary executive theory and
related Executive Orders do not apply to TVA, will help EPA and DOJ take necessary enforcement
actions to bring TVA into compliance with federal environmental laws.

Judge, please join my partner and I as we seek to place accountability on the Tennessee Valley Authority
by affirming the resolution, for no one is above the law. Thank you and I am now open for questions by
the Negative team.