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March 23, 2009

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If the law is a reflection of the will of the people, TVA should tread very carefully in their decision whether or not to appeal the NC case.

TVA sought sovereign immunity thinking it could bowl over any plaintiff and it usually did just that. But the District Court judge threw that defense out. Just the intimation of the power of the “king” is intimidating; TVA has gotten away with much more than it should have. It has the federal thumb of power over 80,000 square-miles of exclusive TVA territory and its millions of inhabitants.

Because the TVA is such a different political animal I have termed it a separate and distinct government entity, hence a parallel government.

Today, TVA’s reputation in the eyes of many is far from being good; in fact, I believe its reputation and credibility is the worst in its 75 year history. To appeal the NC pollution case would be tantamount to being run out of town on a rail by much of the “taxed” ratepayers in the Valley. Higher rates, incompetent management and gross wastefulness are only a few recent examples of TVA’s ineptitude.

I had hoped (hope doesn’t win legal cases) that somehow that NC case could also turn on the constitutionality of the TVA. As best I can determine, the Supreme Court never has ruled on that, only on narrow but peripheral issues.

TVA is an anomaly of the U.S. Constitution, different from all other federal agencies and charged erroneously from the start to be something it never could be – a flexible corporation with the power of eminent domain. (The FDR “rule”.)

Please keep me posted on TVA’s decision of whether or not they will appeal the NC case and the basis for it. TVA carries a large contingent of lawyers and does not hesitate hiring counsel. Oh, the millions wasted on unnecessary litigation!

While the present discussion is on the finer points of nuisance law, the bigger one should be on the constitutionality of the 1933 TVA Act.

Ernest Norsworthy
emnorsworthy@earthlink.net

My website is http://norsworthyopinion.com for more on the TVA.

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