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SCOTUS: Tennessee Valley Authority can be sued over safety

| May 6, 2019 | Defective Products |

Back in January, we discussed a report that many workers were injured or killed after cleaning up a coal ash spill that contaminated the Clinch and Emory rivers. An unlined containment pond at the Tennessee Valley Authority (TVA) Kingston Fossil Fuel Power Plant in Roane County (TN) leaked, sending over 1.5 million tons of coal ash to flood 300 acres.

Of 900 workers who spent years cleaning up the spill, 200 are seriously or terminally ill and at least 30 have died. They were not issued containment equipment, but wore regular gear as they dealt with the noxious sludge, which contained lead, mercury, arsenic and radium.

In another case, a recreational fisherman was injured and his passenger killed when the boat he was in struck a downed TVA power line. He tried to sue the TVA, but the government-sponsored entity claimed it was covered by sovereign immunity.

The doctrine of sovereign immunity holds that the federal government can’t be sued unless Congress authorizes it by statute. However, the 1946 Federal Tort Claims Act allows people to sue the government for certain harmful acts by its agents. To qualify, the agent’s act must have been required, not discretionary.

Recently, the U.S. Supreme Court heard the case of the injured fisherman. The government, defending the TVA’s position, argued that the agency is covered by the Federal Tort Claims Act and sovereign immunity.

The TVA argued that the doctrine of sovereign immunity should apply because the agency is a government-sponsored corporation that exercises limited governmental powers. (It has eminent domain and law enforcement powers.) It argued for a broad application of the sovereign immunity doctrine. Moreover, it said that sovereign immunity protection is necessary to prevent “grave interference” with its governmental functions.

The Supreme Court unanimously disagreed. First, the court noted that the TVA is covered by a “sue and be sued” statute, which essentially acts as a Congressional waiver of sovereign immunity. Next, they pointed to the fact that the TVA primarily performs a commercial function, producing electrical power, and that it was engaged with that function when the boat struck the downed power line. When a government corporation is acting in a merely commercial capacity, the justices ruled, it cannot claim sovereign immunity.

If such a corporation insists that it was carrying out a governmental function that should not suffer “grave interference,” it faces a high bar — it must “clearly show” that immunizing it from lawsuits is necessary. However, since the lower courts did not consider the “grave interference” argument, the case was sent back down to the lower court for a hearing.

The net result is that the TVA is vulnerable to negligence lawsuits when their actions, discretionary or not, injure people.