468 F.2d 1164 (6th Cir. 1972), 72-1138, Environmental Defense Fund v. Tennessee Val. Authority

Docket Nº:72-1138.
Citation:468 F.2d 1164
Party Name:ENVIRONMENTAL DEFENSE FUND et al., Plaintiffs-Appellees, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellants.
Case Date:December 13, 1972
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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468 F.2d 1164 (6th Cir. 1972)

ENVIRONMENTAL DEFENSE FUND et al., Plaintiffs-Appellees,

v.

TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellants.

No. 72-1138.

United States Court of Appeals, Sixth Circuit.

December 13, 1972

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Thomas A. Pedersen, Knoxville, Tenn., for defendants-appellants; Robert H. Marquis, Beauchamp E. Brogan, Justin M. Schwamm, T. V. A., Division of Law, Knoxville, Tenn., on brief.

Jon T. Brown, Washington, D. C., for plaintiffs-appellees; Wallace L. Duncan, Arthur J. Gajarsa, Washington, D. C., on brief; Edward Lee Rogers, East Setauket, N. Y., Lawrence R. Reno, Denver, Colo., of counsel.

Before WEICK, McCREE and MILLER, Circuit Judges.

McCREE, Circuit Judge.

We consider the validity of a preliminary injunction issued against the Tennessee Valley Authority (TVA) and its officers and agents at the behest of three organizations and an individual asserting that they will be irreparably harmed if the TVA continues construction of the Tellico Project on the Little Tennessee River without filing the environmental impact statement specified in section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4332(2)(C). 1 We conclude

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that the injunction properly issued.

The Tellico Project is described in the opinion of the District Court, 339 F.Supp. 806 (E.D.Tenn.1972)

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, and we will therefore summarize only the facts pertinent to the issues presented in this appeal. 2

The Little Tennessee River rises in the mountains of western North Carolina and flows northwesterly to its confluence with the Tennessee River in eastern Tennessee. On the Tennessee, just north of the mouth of the Little Tennessee, is the Fort Loudon Dam and Reservoir. The Tellico Project involves the construction of a dam on the Little Tennessee below its mouth. The dam is to be an earth embankment with a concrete spillway, and when it is operational (in 1975), it will impound the Little Tennessee and create a reservoir 33 miles long. In lieu of a navigation lock, an 850-foot-long navigation canal will connect the Tellico Reservoir with the Fort Loudon Reservoir. And, a nine-foot-wide navigable channel will extend 30 miles up the Little Tennessee from the Tellico Dam to a point three miles downriver from the existing Chilhowee Dam. TVA will acquire 38,000 acres of land for the project, of which 16,000 acres of Little Tennessee bottomland will be inundated by the reservoir, including 2,100 acres of the present river bed.

The purpose of the project is to foster the economic development of the three Tennessee counties through which the Little Tennessee flows. TVA has estimated that the commercial water transportation to be provided by the 30-mile channel will result in private investment of $265 million in new commercial enterprise in the Tellico area over the next 25 years and the concomitant creation of 6,600 new jobs. It also asserts that the project will provide additional flood control, electric power, and recreation in the area. Further, a planned community of 50,000 people is envisioned for the area. At the project's inception, TVA placed the benefit-cost ratio at 1.4:1.

The District Court found that the free-flowing stretch of the Little Tennessee to be impounded "is acknowledged to be the largest and best trout fishing water east of the Mississippi River." 339 F.Supp. at 808. There are several sites of major historical and archaeological significance along the banks and bottomland of the Little Tennessee, such as Fort Loudon, which was built by the English in 1756, and former Cherokee Indian villages that include the ancient capital of the Cherokee nation. The District Court found that "[t]hese archeological stores are virtually untapped." 3 The court further found

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that the river is the "likely habitat" of one or more of seven rare or endangered fish species, that it exists in a pristine state, and that all these benefits will be destroyed by its impoundment, as will much valuable farm land. 339 F.Supp. at 808.

The Congress appropriated the initial funds for the project on October 15, 1966, and the TVA authorized construction on November 8, 1966. The original cost estimate of the project was $42.5 million, and TVA's current figure is $69 million. 4 The project has not been altered in scope or design since its approval, and the Congress has appropriated funds for it in each year since 1966.

The effective date of the NEPA is January 1, 1970. Construction of the Tellico Project began in March 1967, and the concrete portion of the dam was completed in February 1969. In June 1969, the relocation of roads and bridges was begun, and in July 1969 construction of a steel span bridge across the Little Tennessee was commenced in anticipation of the relocation of U.S. Highway 411. By January 1970, 45% of the land needed for the project had been acquired and $19 million had been expended. The project was about one-third completed by that date. By January 1971, the steel span bridge had been completed, and, in November 1971, TVA began excavation work in preparation for constructing the earthfill portion of the dam. By January 1972, the time of the hearing in this case, two-thirds of the required property had been purchased; a total of $29 million had been spent on the project; five to eight miles of new road, of the 30 miles eventually to be relocated, had been constructed; and construction had begun on all major components of the project except the navigation canal.

On June 18, 1971, TVA filed a draft environmental impact statement with the Council on Environmental Quality. This statement was later characterized by the District Court as consisting "almost entirely of unsupported conclusions." 5 339 F.Supp. at 809. Two months after the statement was filed, this lawsuit was initiated.

Plaintiffs first sued in the United States District Court for the District of Columbia on August 11, 1971. On October 13, 1971, that court dismissed the action without prejudice on the ground of improper venue. Plaintiffs then, on December 2, 1971, filed suit in the Northern District of Alabama, and that

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court on December 21 transferred the case to the Eastern District of Tennessee pursuant to 28 U.S.C. § 1404(a).

The action was brought against TVA and its chairman, Aubrey J. Wagner, by three organizations and an individual landowner. Jurisdiction of the court was invoked under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1970), and under 28 U.S.C. §§ 1331 (a), 1337 and 1361. The complaint sought declaratory and permanent injunctive relief against the construction of the Tellico Project on the basis of asserted violations of sections 101 and 102 of the NEPA; section 9a of the TVA Act, 16 U.S.C. § 831h-1 (1970); 33 U. S.C. § 701a (1970); 16 U.S.C. § 469a (1970); the Fifth and Ninth Amendments to the Constitution; and the federal common law relating to the public trust doctrine. On January 3, 1972, plaintiffs moved for a preliminary injunction against any further construction activity on the Tellico Project until defendants should have filed an adequate environmental impact statement. A hearing was held on this motion on January 7 and 10, 1972, in which both sides presented evidence. At the conclusion of the hearing, the court granted plaintiffs' motion except with respect to defendants' completion of road-building operations that had progressed to the stage at which road-surfacing was necessary to prevent large-scale soil erosion. The court also permitted certain mapmaking and reporting activities to proceed. Following the denial of defendants' motion to suspend the preliminary injunction pending disposition of their appeal, defendants prosecuted this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) (1970).

I

As a preliminary matter, the recent decision of the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), which was handed down after the District Court issued the preliminary injunction in this case, requires a brief discussion of plaintiffs' standing to maintain this suit. Plaintiffs Trout Unlimited and Association for the Preservation of the Little T have alleged that many of their members have used the Little Tennessee for various purposes and wish to preserve the river to protect its fish, wildlife, surroundings, and water quality. Plaintiff Environmental Defense Fund, although asserting that some of its members live in Tennessee, has not alleged that any of its members have derived personal benefit from the river or have used the river in any way. Plaintiff Thomas Burel Moser has alleged that he is a resident and landowner in the Tellico Project area and that his land is being condemned by TVA for the project. All of the organizational plaintiffs have asserted that they are maintaining this action in pursuit of their organizational objectives and purposes, on behalf of their members, and on behalf of all United States citizens who are interested in the protection and enhancement of our natural environment and resources.

Plaintiffs Trout Unlimited, Association for the Preservation of the Little T, and Thomas Moser have clearly met the standing requirements of section 10 of the Administrative Procedure Act, 6 5 U.S.C. § 702 (1970), as that section has been interpreted in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). These plaintiffs have alleged the requisite "injury in fact" that the Court found to be lacking in Sierra Club, supra. And, the injuries they assert are...

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