Buck Mountain Cmty. Org. v. Tennessee Valley Auth.

• Decision Date: 18 May 2009
• Docket Number: Case No. 2:08-cv-0040.
• Parties: BUCK MOUNTAIN COMMUNITY ORGANIZATION, an unincorporated association, Bower Johnston, and Harold Boswell, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

629 F.Supp.2d 785

BUCK MOUNTAIN COMMUNITY ORGANIZATION, an unincorporated association, Bower Johnston, and Harold Boswell, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.

Case No. 2:08-cv-0040.

United States District Court, M.D. Tennessee, Northeastern Division.

May 18, 2009.

Brian Howard Paddock, Paddock & Mastin, Cookeville, TN, Gary A. Davis, Gary A. Davis & Associates, Hot Springs, NC, Rebecca C. Kaman, Gary A. Davis & Associates, Hot Springs, NC, for Plaintiffs.

Brent R. Marquand, Tennessee Valley Authority, Knoxville, TN, W. Brantley Phillips, Jr., Bass, Berry & Sims, Nashville, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court is the defendant's Motion to Dismiss and for Summary Judgment (Docket No. 44), to which the plaintiffs have responded (Docket No. 57), and the defendant has replied (Docket No. 61). Also pending is the plaintiffs' Motion for Summary Judgment (Docket No. 48), to which the defendant has responded (Docket No. 53), and the plaintiffs have replied (Docket No. 60). In considering those motions, it appeared to the court that the plaintiffs' claims may be moot, and the court ordered the parties to file supplemental briefs addressing the mootness issue, which they did. (Docket Nos. 67 and 68.)

For the reasons discussed herein, the court finds that the plaintiffs' claims are not moot but that the defendant is entitled to summary judgment with respect to all of the plaintiffs' claims.

BACKGROUND

In this case, the court is called upon to review the decision of the defendant, Tennessee Valley Authority ("TVA"), to construct a 5.5-mile 161-kV transmission line connecting TVA's existing transmission system to a new 161-kV electric substation built by the Upper Cumberland Electric Membership Corporation ("UCEMC") in Algood, Putnam County, Tennessee.¹ Construction of the new transmission line required the taking, by eminent domain, of permanent easements from certain property owners, the construction of access roads, and the erection of numerous steel poles for power lines in an area of hardwood forest, caves, springs, residences, and farms along Buck Mountain. The plaintiffs in this matter are Buck Mountain Community Organization, an unincorporated association with members in the Buck Mountain Community whose property is directly affected by the new transmission line, and Bower Johnston and Harold Boswell, individuals who are residents of Putnam County and whose property is directly affected by the new transmission line.

In 2006, UCEMC informed TVA that it planned to build a new 161-kV electric substation in Algood, Tennessee and requested that TVA provide a new 161-kV transmission line to connect the planned new Algood substation to TVA's existing transmission system. To that end, UCEMC submitted to TVA a study, entitled "One Ownership Study, Upper Cumberland EMC, Algood Substation," purporting to justify the need for both the new substation and for a new transmission line connecting the new substation to TVA's existing transmission system. In response to UCEMC's request, TVA established a web site containing information about the proposed transmission line, a map of alternative routes, and feedback mechanisms. TVA also conducted its own study of need, entitled "Project Justification Data, Algood, Tennessee 161-kV Substation, Upper Cumberland Electric Membership Corporation (UCEMC), Provide 161-kV Delivery Point."

On February 6, 2007, TVA held an open house in Algood, Tennessee to address the need for the proposed transmission line, alternative route locations, the potential impacts of the proposed transmission line on residential and commercial development, health, the environment, and cultural resources. Approximately 175 people attended the open house, which was followed by a public comment period.

TVA released a draft Environmental Assessment ("EA") on November 23, 2007. In the course of a subsequent comment period, TVA received sixty-nine comments from forty-five different individuals and organizations, including the plaintiffs, regarding the draft. Additionally, the plaintiffs submitted a report prepared by Peter Lanzalotta (the "Lanzalotta Report") that contained another analysis of the need for the project. On May 8, 2008, TVA issued a final EA and a Finding of No Significant Impact, concluding that it was not required to prepare an Environmental Impact Statement ("EIS"). The EA is a substantial document, comprising over ninety pages, seven appendices, and two addenda.²

The EA states that TVA "is proposing to supply electric power to [the planned new Algood] substation by building approximately 5.5 miles of new 161-kilovolt (kV) transmission line (i.e., a `tap line') that would connect the planned substation to TVA's existing West Cookeville-Peavine Transmission Line."³ The EA articulates three reasons as to why the project is necessary: the fact that the existing West Cookeville 161-kV substation, which is the primary power source for the Cookeville and Algood area, was projected to be above capacity by summer 2008; the fact that the existing Algood 69-kV substation was projected to be above capacity by summer 2008; and the fact that the existing West Cookeville-East Cookeville-Algood 69-kV transmission line was projected to be above capacity by summer 2008. In considering the need for the project in the EA, TVA evaluated historical load data, including summer load data from 2007 that was not available at the time it issued the draft EA. TVA concluded that, without a new transmission line to connect UCEMC's planned new Algood substation to TVA's existing transmission system, the system would be at "a high risk of interruption," particularly during periods of high usage, that this risk was projected to increase over time, and that the system could face overloads "as early as summer 2008."

In a chapter entitled "Alternatives Including the Proposed Action," the EA discusses, at length, two alternatives: the "No Action Alternative" and the "Action Alternative." Under the "No Action Alternative," TVA would not construct the proposed transmission line, and the system "would continue to operate with a high risk of interruption in certain situations." Under the "Action Alternative," TVA would construct the proposed transmission line, which would "provide service to UCEMC's planned substation, would help meet the growing electric power needs in the Algood area, and would improve the reliability of the Algood power supply." The EA also discusses, in addition to these two alternatives, a number of other alternatives that TVA had considered but ruled out for a variety of considerations. Moreover, the EA discusses the process by which TVA identified and evaluated possible routes for the proposed transmission line and identifies a route referred to as "Alternative Route 1" as that with the least impact overall. After describing the No Action and Action Alternatives to the project and the various alternative routes, the EA concludes that the Action Alternative is TVA's "preferred alternative" and that Alternative Route 1 is its "preferred route." The EA states that, if the proposed transmission line were not constructed, the existing infrastructure "would likely become overloaded in the short term," which would "lead to equipment failures and outages with brownouts and blackouts in the area," reducing the reliability of the transmission system to "unacceptable levels."

The EA acknowledges that construction of the proposed transmission line would result in certain "unavoidable adverse impacts," including "the loss of [over thirty-five acres of] forest area and associated wildlife populations; increased forest fragmentation; removal of the tree canopy at stream crossings; restrictions on future land use within the right-of-way; and changes to the visual character within the local area." The EA further specifies the particular environmental conditions that could be affected by the project, including terrestrial wildlife and vegetation, aquatic life, threatened and endangered species, surface water, groundwater and geology, flood plains, wetlands, natural areas, historical and archaeological resources, visual and aesthetic quality, recreation, and socioeconomics. The EA evaluates the consequences of the project on those environmental conditions and concludes that the project would not result in any significant impacts. To the extent that the project could have some adverse environmental impacts, the EA lists a number of mitigation measures to be taken by TVA, including following best management practices and environmental quality protection specifications, not using heavy equipment or vehicles in certain areas, performing additional field surveys with regard to a particular species of endangered bat, and, potentially, delaying construction if bats were found during those additional surveys.

Finally, the EA includes a section that addresses the comments received by TVA during the comment period, including comments challenging TVA's determination of project need and the Lanzalotta Report submitted by the plaintiffs, as well as comments pertaining to both project and route alternatives and to the environmental impacts of the project.

The plaintiffs filed this lawsuit on May 20, 2008, shortly after TVA issued the EA. The plaintiffs assert that the process by which TVA decided to proceed with construction of the proposed transmission line violated its obligations under the National Environmental Policy Act ("NEPA") and seek a declaratory judgment declaring TVA's actions unlawful under NEPA and its implementing regulations. Specifically, the plaintiffs allege that TVA acted arbitrarily or capriciously in determining that the project was necessary, in evaluating alternatives to the project, in evaluating alternative routes, and in evaluating the environmental impacts of the project and concluding that the project would not have any significant...