Bullwinkel v. U.S. Dep't of Energy

• Decision Date: 17 January 2013
• Docket Number: No. 11–1082–JDB–EGB.,11–1082–JDB–EGB.
• Citation: 899 F.Supp.2d 712
• Parties: Gary BULLWINKEL, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

899 F.Supp.2d 712

Gary BULLWINKEL, Plaintiff,

v.UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants.

No. 11–1082–JDB–EGB.

United States District Court,

W.D. Tennessee,

Eastern Division.

Aug. 13, 2012.

Order Denying Reconsideration Jan. 17, 2013.

Gary Bullwinkel, Somerville, TN, pro se.

Peter Kryn Dykema, Ayako Sato, Peter Kryn Dykema, U.S. Department of Justice, Washington, DC, Gary A. Vanasek, U.S. Attorney's Office, Memphis, TN, John E. Slater, Maria Victoria Gillen, Tennessee Valley Authority, Thomas C. Doolan, University of Tennessee, Knoxville, TN, Steven A. Hart, Elizabeth P. McCarter, Office of the Attorney General Special Litigation, Nashville, TN, for Defendants.

ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE TVA DEFENDANTS

J. DANIEL BREEN, District Judge.

Before the Court is the motion for summary judgment filed by Defendant Tennessee Valley Authority (“TVA”) and its president, Thomas Kilgore (collectively, the “TVA Defendants”). (Docket Entry (“D.E.”) 76.) For the reasons stated herein, the motion is GRANTED. Count 1 of the amended complaint is DISMISSED, Count 12 of the amended complaint is DISMISSED as to the TVA Defendants, and the TVA Defendants are terminated as parties to this action.

On April 8, 2011, the Plaintiff, Gary Bullwinkel, a resident of Somerville, Tennessee, filed a pro se complaint pursuant to, inter alia, the Administrative Procedure Act, 5 U.S.C. §§ 701–05; the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq.; and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (D.E. 1.) Plaintiff filed an amended complaint as of right on April 19, 2011. (D.E. 5.) On September 27, 2011, the TVA Defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, supported by a statement of undisputed facts, a legal memorandum, various documents, and the declarations of Jon M. Loney, Charles P. Nicholson and Billy W. Adams, Jr. (D.E. 76–81.) On October 18, 2011, Plaintiff submitted his pleadings, consisting of a response to the TVA Defendants' statement of material facts and a legal memorandum. (D.E. 85.) The TVA Defendants filed a reply on November 3, 2011. (D.E. 88.)

Rule 56 provides in pertinent part that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Gecewicz v. Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir.2012). “In analyzing a motion for summary judgment, [courts are to] construe all evidence in the light most favorable to the non-moving party.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Dugle ex rel. Dugle v. Norfolk S. Ry. Co., 683 F.3d 263, 267 (6th Cir.2012) (quoting Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505) (internal quotation marks omitted), reh'g & reh'g en banc denied (Aug. 2, 2012).

A party who does not have access to evidence necessary to respond to a summary judgment motion must file an affidavit under Federal Rule of Civil Procedure 56(d). See Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th Cir.2002).¹ Judicial review of NEPA decisions proceeds under the APA, Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 964 (6th Cir.2009); see also Sierra Club v. Slater, 120 F.3d 623, 630–31 (6th Cir.1997) (“NEPA does not authorize a private right of action.... We have long recognized that federal courts have jurisdiction over NEPA challenges pursuant to the APA and so have many other courts[.]”), reh'g & suggestion for reh'g en banc denied (Oct. 15, 1997), and review of APA decisions is based on the administrative record, 5 U.S.C. § 706; Slater, 120 F.3d at 638. In this case, Plaintiff did not file a Rule 56(d) affidavit, and his motion to supplement the record (D.E. 151) was filed months after briefing on the instant motion was complete.² Therefore, the Court will address the merits of the TVA Defendants' motion.

In his amended complaint, Plaintiff sued the TVA because of its certification of an industrial megasite in Haywood County, Tennessee (the “West Tennessee Megasite” or “Megasite”) in 2006. (D.E. 5 ¶¶ 56–64.) ³ Count 1 asserted a claim against the TVA under NEPA and the APA arising from its use of categorical exclusions in its megasite certification program in general and, specifically, on the West Tennessee Megasite. ( Id. ¶¶ 92–93.) The prayer for relief asked the Court, inter alia, to

3. Order Defendant TVA [to] cease its TVA Megasite Certification and Marketing program until a comprehensive NEPA process as required by [Council of Environmental Quality (“CQ”) ] regulations is conducted.

4. Order Defendant TVA [to] withdraw the West Tennessee Megasite Certification and cease its marketing of the West Tennessee Megasite until the comprehensive NEPA process as required by USDA–RUS and CEQ regulations is conducted.

( Id. ¶¶ 3–4.)

Bullwinkel also sued the TVA because of its involvement in the Welcome Center and Solar Farm.⁴ TVA plans to purchase the power produced by the Solar Farm. ( Id. ¶¶ 16, 105, 107.) Although the amended complaint is less than clear, Count 12 appeared to assert a claim against the TVA Defendants arising from their failure to identify and coordinate the Solar Farm and Welcome Center and its associated transmission lines as a connected action with the West Tennessee Megasite. ( Id. ¶¶ 139–41.)

The Supreme Court has summarized the operation of NEPA as follows:

Signed into law on January 1, 1970, NEPA establishes a national policy to encourage productive and enjoyable harmony between man and his environment, and was intended to reduce or eliminate environmental damage and to promote the understanding of the ecological systems and natural resources important to the United States. NEPA itself does not mandate particular results in order to accomplish these ends. Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions. At the heart of NEPA is a requirement that federal agencies

include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

This detailed statement is called an Environmental Impact Statement (EIS). The [CEQ], established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement. The CEQ regulations allow an agency to prepare a more limited document, an Environmental Assessment (EA), if the agency's proposed action neither is categorically excluded from the requirement to produce an EIS nor would clearly require the production of an EIS. The EA is to be a concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS. If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a finding of no significant impact (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment.

Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756–58, 124 S.Ct. 2204, 2209–10, 159 L.Ed.2d 60 (2004) (internal citations, alterations & quotation marks omitted).

TVA is guided in its NEPA compliance by the regulations promulgated by the CEQ, 40 C.F.R. §§ 1500.1–1508.28 (2010), and by its own NEPA procedures (“TVA NEPA Procedures”).⁵ With the approval of the CEQ, TVA enacted twenty-eight categorical exclusions for “[c]ategories of actions [that] do not normally have, either individually or cumulatively, a significant impact on the quality of the human environment and require neither the preparation of an EA nor an EIS.” (TVA NEPA Procedures § 5.2, TVA AR 27); see also Decl. of Jon M. Loney dated Sept. 14, 2011 (“Loney Decl.” ¶ 4, D.E. 77.) The categorical exclusions include “[t]echnical and planning assistance to State and local organizations”(TVA NEPA Procedures § 5.2.2, TVA AR 27), “[p]rocurement activities” ( id. § 5.2.4, TVA AR 27), and “[a]ny action which does not have a primary impact on the physical environment” ( id. § 5.2.27, TVA AR 28). ⁶ “By excluding from formal review actions which have no or only insignificant effects on the health of the environment, the use of categorical exclusions allows TVA to focus its attention and resources under NEPA on actions which arguably have a greater impact on the environment, and helps prevent unnecessary delays of TVA actions.” (Loney Decl. ¶ 5.)

The following facts are pertinent to this motion:

1. Part of TVA's mission under the TVA Act of 1933, as amended, 16 U.S.C. §§ 831–831ee (2006 & Supp. III 2009), is to foster the development of the Valley Region.⁷

2. TVA works with local communities and governments to attract industry to encourage employment and economic growth. ( See16 U.S.C. §§ 831u, 831v (2006); Declaration of Billy L. Adams, Jr., dated Sept. 22, 2011 (“Adams Decl.”), ¶ 2, D.E. 79.)

3. The megasite...