Back in November we blogged about undercompensation of condemnees, in the context of United State ex rel TVA v. Powelson, where the U.S. Supreme Court expressed its unjustified concern that indemnifying property owners whose land was being taken by eminent domain for a TVA hydroelectric dam would create tension with the people’s interest in public improvements (see Hydroelectric Dams – Build them Up or Tear them Down?, 11/16/08). We noted that this judicial concern was unfounded because as it turned out, the TVA made a bundle on its dams, and so did its industrail customers who got to enjoy electric power at a cost that was 30-50% below prevailing rates. We also noted that after exhausting its hydroelectric dam geerating capacity, the TVA went on to build large coal-burning electric power generating plants, which in turn required massive strip mining of coal, that produced the familiar environmental problems.
Now it turns out that we left something out. When you operate coal-fired power generation plants, you also produce ash, and TVA did that too — in prodigious quantities. See Shaila Dewan, At Plant in Coal Ash Spill, Toxic Deposits by the Ton, N.Y. Times, Dec. 30, 2008, at p. A13. From this story we learn that one year’s worth of ash produced by one of those plants produces 45,000 pounds of arsenic, 49,000 pounds of lead, 1.4 million pounds of barium, 91,000 pounds of chromium, and 140,000 pounds of manganese. And, of course, these plants have been operating for many years.
All that toxic glop descended on the surrounding area when a few days ago the earthen dike containing the ash heap of a TVA power plant, gave way, and 5.4 million cubic yards of the stuff flowed out, covering some 300 acres, in an area 40 miles west of Knoxville. As yet, the TVA has no estimate of the cost of the needed cleanup or how long it will take to accomplish it. Our reading of the news dispatches reporting this calamity fails to indicate that anyone on the goverrnment side is rushing in to compensate the affected landowners. We are not holding our breath on that one, and it seems like a fair bet that the affected owners will have to lawyer up and sue the government to collect. It also seems likely that when it comes to assessing damages, we may again hear the judicial lament that indemnifying the affected property owners will create tension between indemnifying them and the “people’s interest” in public projects. It seems to us that the “people’s interest” in public projects does not include the “right” to cover hundreds of acres of other people’s land with a toxic glop.
The Los Angeles Times (Richard Fausett, After Tennessee Ash Spill, Cleanup and Worry, Jan. 1, 2009, available at www.latimes.com ) reports that “a tide of litigation” has already begun. Stay tuned.