Environmental Defense Fund v. Tennessee Valley Auth., Civ. A. No. 7720.

• Decision Date: 25 October 1973
• Docket Number: Civ. A. No. 7720.
• Citation: 371 F. Supp. 1004
• Parties: ENVIRONMENTAL DEFENSE FUND and Thomas Burel Moser v. TENNESSEE VALLEY AUTHORITY.
• Court: U.S. District Court — Eastern District of Tennessee

371 F. Supp. 1004

ENVIRONMENTAL DEFENSE FUND and Thomas Burel Moser v. TENNESSEE VALLEY AUTHORITY.

Civ. A. No. 7720.

United States District Court, E. D. Tennessee, N. D.

October 25, 1973.

Jon T. Brown, Wallace L. Duncan, Duncan & Brown, Washington, D. C., Robert L. Echols, Nashville, Tenn., Lawrence R. Reno, Reno & Judd, Denver, Colo., Edward Lee Rogers, East Setauket, N. Y., Julian D. Butler, Butler & Potter, Huntsville, Ala., for plaintiffs.

Robert H. Marquis, Gen. Counsel, Tennessee Valley Authority, Legal Dept., Beauchamp E. Brogan, Beverly S. Burbage, Tennessee Valley Authority, Legal Dept., Knoxville, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

This action was commenced to enjoin the Tennessee Valley Authority from completing construction of the Tellico Dam Project. Plaintiffs allege violation of the National Environmental Policy Act,¹ the National Historic Preservation Act,² and the Federal Water Pollution Control Act Amendments of 1972.³

On January 11, 1972, this Court enjoined defendants from continuing further construction of the project. From September 17 through September 20, 1973, the trial on the merits was held. For the reasons indicated in the remainder of this opinion, we conclude that the preliminary injunction entered previously should be dissolved.

I. Background

The general background of this litigation, the parties involved, and the history of the project are set forth in our memorandum of January 11, 1972.⁴ This litigation stems from the construction of a concrete and earthfill dam near the mouth of the Little Tennessee River. TVA will ultimately acquire thirty-eight thousand acres for development of the project. Sixteen thousand, five hundred acres will be inundated upon completion of the reservoir; the remaining acreage will be developed for industrial, commercial, residential, and recreational purposes. The project plan also contemplates the creation of a new city, Timberlake, with a population of fifty thousand persons.

The project calls for the impoundment of the first thirty-three miles of the Little Tennessee River. The river and its environs present an extremely attractive setting, and are the source of thousands of annual fishing and boating trips. The area contains rich agricultural land with approximately twenty-five thousand, five hundred acres of the total acreage taken in land use Classes I, II, III. Fort Loudoun, an eighteenth century English fortification, is located on the south bank of the river. This historic site will be saved from inundation but will lose its river setting. Historically, the river bottomland is also important as the ancestral homeland of the Cherokee Indians. Several early Indian villages have been identified, including Chota and Citico and considerable archeological work has been underway for the past few years.

The Tellico Project is a multi-purpose water resource and regional development project. The reservoir and connecting canal with Fort Loudoun reservoir will serve to develop navigation, flood control, and electric power generation. Other direct benefits claimed by the project are recreational development, fish and wildlife use, water supply, shoreline development, and redevelopment. The project was first authorized by Congress on October 15, 1966. Construction on the concrete portion of the dam began March 7, 1967 and was completed on March 28, 1969. To date, $45,465,000 has been appropriated for the project, and over $35,000,000 has been spent. The current estimated project cost is $69,000,000.

II. National Environmental Policy Act

Our original order granting a preliminary injunction against TVA was based on its failure to comply with NEPA. On February 10, 1972, TVA filed with the Council on Environmental Quality the final impact statement covering the Tellico Project. Plaintiffs contend that this statement is still deficient under sections 102(2)(C) and (D) of NEPA. Further, they argue that TVA has not complied with section 102(2)(B) of the Act and that the decision to proceed with the project was arbitrary and capricious.

A. Section 102(2)(C) of NEPA 42 U.S.C. § 4332(2)(C)

The final environmental impact statement comprises three volumes totaling approximately 600 pages. Volume I contains the final impact statement, the draft statement, agency and individual comments, and TVA's response thereto. Volume II gives supporting data for the material presented in the final statement. The final volume reproduces in full a critical report by a study group at The University of Tennessee dealing with TVA's economic analysis. TVA, in part 3 of this volume, responds to this report.

Plaintiffs contend that the final EIS fails to discuss certain impacts of the project and inadequately discusses other impacts. Among the areas that plaintiffs argue are inadequately covered by the statement include the failure to contain a critical economic analysis; failure to discuss the cultural and historic impacts of the project; failure to discuss in detail the human impacts of family relocation; failure to discuss agricultural and related losses; failure to evaluate the uniqueness of the Little Tennessee River; and failure to discuss the shoreline development resulting from completion of the project. Plaintiffs also argue that several reasonable alternatives were not discussed in detail and that the EIS ignored discussion of the environmental impacts of the alternatives.

Section 102(2)(C) requires in part that all federal agencies shall—

"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." 42 U.S.C. § 4332(2)(C)

An impact statement must discuss in detail the significant environmental impacts resulting from the proposed project. Environmental Defense Fund v. Corps of Eng. of United States Army, 348 F.Supp. 916, 933 (N.D.Miss. 1972); Sierra Club v. Froehlke, 359 F. Supp. 1289 (S.D.Tex.1973). The EIS must be written so that it

"`. . . is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.' The reason for this standard is that impact statements must assist in rational, thoroughly informed decision making by officials higher up in the agency chain-of-command, including the Congress, the Executive and the general public, some of whom may not possess the technical expertise of those who evaluate the impact and prepare environmental statements. . . ." Sierra Club v. Froehlke, 359 F.Supp. 1289, p. 1342 (S.D.Tex. 1973).

The alternatives available to a proposed action and their discussion should be searching. It is stated in Sierra Club v. Froehlke, supra, that:

"While agencies must consider alternatives to the `fullest extent possisible,' the search for appropriate alternatives need be neither `exhaustive' nor speculative and remote. Although only those `reasonably available' need be considered, the discussion and consideration cannot be superficial, but must be thoroughly explored . . ." at pg. 1344.

The fact that the Tellico Project was authorized and approximately one-half completed prior to the enactment of NEPA are factors which must be weighed in determining the scope of reasonable alternatives available to the project. Environmental Defense Fund v. Corps of Eng. United States Army, 470 F.2d 289 (8th Cir. 1972), cert. den., 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973); Environmental Defense Fund v. Tennessee Val. Auth., 468 F.2d 1164, 1179 (6th Cir. 1972).

1. Historical and Archeological Discussion

Testimony at trial for plaintiffs attacked the sufficiency of the statement's treatment of the historical and archeological loss to be incurred by completion of the project. Two sections in the body of the final impact statement deal with these impacts⁵ and a supplemental section further details the discussion.⁶

Plaintiffs' witness stated that the project area is the most important archeologically in Tennessee. It was his opinion that the EIS minimized this importance. The most significant impacts in this regard will be the inundation of several Indian villages built during the occupation of the region by the Cherokee and other earlier peoples. Similarly, Fort Loudoun, an eighteenth century English fortification, will be disjoined from its historic setting by the resulting reservoir.

The impact statement recognizes that the area is of considerable archeological value and that to some degree these values will be adversely affected by the project.⁷ TVA has, as is noted in the statement, initiated and financed archeological teams to survey the area.⁸ Already more than five hundred thousand artifacts have been unearthed. Chota, a recently identified Cherokee village, will be preserved through filling.⁹ Fort Loudoun will be likewise preserved, but it will lose its river setting.

Three nationally known archeologists have reviewed the statement's treatment of this topic and feel the discussion is adequate.¹⁰ Dr. Guthe of the University of Tennessee, who is in charge of the salvage surveys and excavations of the area, testified that he has reviewed the EIS and feels that it contains an objective detailed discussion of the significant impacts of the project concerning this topic. The controversy in this area concerned the emphasis to be placed on the loss. Little evidence was presented...