Tenn. Envtl. Council v. Tenn. Valley Auth.

• Decision Date: 01 August 2014
• Docket Number: No. 3:13–CV–374–TAV–HBG.,3:13–CV–374–TAV–HBG.
• Citation: 32 F.Supp.3d 876
• Parties: TENNESSEE ENVIRONMENTAL COUNCIL, Tennessee Scenic Rivers Association, Sierra Club, and Center for Biological Diversity, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

32 F.Supp.3d 876

TENNESSEE ENVIRONMENTAL COUNCIL, Tennessee Scenic Rivers Association, Sierra Club, and Center for Biological Diversity, Plaintiffs
v.
TENNESSEE VALLEY AUTHORITY, Defendant.

No. 3:13–CV–374–TAV–HBG.

United States District Court, E.D. Tennessee.

Signed Aug. 1, 2014.

32 F.Supp.3d 880

Abigail Dillen, Bridget M. Lee, Earth Justice, New York, NY, Delta Anne Davis, Nashville, TN, John T. Suttles, Myra Dean Blake, Chapel Hill, NC, Joshua R. Stebbins, Sierra Club, Washington, DC, Mary Melissa Whittle, EarthJustice, Philadelphia, PA, Nathan Travis Moore, Nashville, NC, for Plaintiffs.

Maria Victoria Gillen, Tricia L. Roelofs, Tennessee Valley Authority, Knoxville, TN, for Defendant.

MEMORANDUM OPINION

THOMAS A. VARLAN, Chief Judge.

This civil action is before the Court on cross motions for summary judgment. Defendant Tennessee Valley Authority (“TVA”) has filed a Motion for Judgment on the Administrative Record [Doc. 46] and plaintiffs have also filed a Motion for Summary Judgment on the Administrative Record and Request for Hearing [Doc. 50]. Plaintiffs have responded in opposition to defendant's motion [Doc. 52], and defendant replied [Doc. 54]. Defendant has also responded in opposition to plaintiffs' motion [Doc. 56], and plaintiffs have replied [Doc. 57]. After careful consideration of the parties' arguments, the record in this case, and the relevant law, the Court will GRANT defendant's motion for summary judgment on the administrative record and DENY plaintiffs' motion for summary judgment.¹

I. Background

Plaintiffs commenced this action on April 25, 2013, challenging TVA's failure to undertake required environmental analysis under the National Environmental Policy Act (“NEPA”), in connection with its decision to extend the life of the Gallatin Fossil Plant (the “Gallatin Plant” or “the Plant”) [Doc. 1 ¶ 1]. Plaintiffs are non-profit and volunteer organizations, incorporated both inside and outside of Tennessee, with members and volunteers who live, work, and recreate around the Gallatin Plant, and who assert that they will be directly harmed by the alleged continued water and air pollution that will result from the Life Extension Project of the Plant [Id. ¶¶ 9–23].

The Gallatin Plant, located in Sumner County, Tennessee, is a coal-fired plant that burns approximately 12,350 tons of coal a day [Id. ¶ 40]. The Plant serves as a base load on TVA's power generation system and generates electricity for the greater Nashville area, sufficient to supply 480,000 homes [Doc. 47]. The Plant, which has been operating for fifty-four years without pollution controls, produces a combined 231,500 tons of fly ash and bottom ash waste, as well as toxic pollutants to water surfaces [Doc. 1 ¶¶ 43–47].

In June 2011, defendant entered into settlement agreements with four states and three environmental agencies, including plaintiff Sierra Club, to cure alleged violations of the Clean Air Act [Doc. 47; Doc. 51]. These agreements were entered into a Consent Decree, approved by this Court [Id. ]. Under the Consent Decree, defendant was, with respect to the Gallatin Plant, required to: “(1) install[ ] an FCD system to reduce sulfur dioxide emissions

32 F.Supp.3d 881

and an SCR system to reduce nitrogen oxides emissions, with requirements to reduce particulate matter emissions; (2) repower[ ] the units with renewable biomass; or (3) retir[e] the units” [Doc. 51]. Defendant was also required to reduce air pollution from the Gallatin Plant by December 31, 2017 [Id. ]. To comply with the Consent Decree and new regulations promulgated by the United States Environmental Protection Agency (“EPA”), defendant elected to reduce emissions at the Gallatin Plant by installing emission controls [Doc. 47].

On August 18, 2011, the TVA Board of Directors approved the installation of “dry scrubbers, baghouses, a selective catalytic reduction system, and associated equipment” at the Gallatin Plant, with a budget of up to $1.1 billion [AR Doc. 1]. The Board resolution further expressly provided that the “implementation of the Board action will be subject to satisfactory completion of all required environmental reviews under [NEPA] and other applicable environmental reviews” [Id. ].

Before entering into the Consent Decree, defendant generated an Integrated Resource Plan (“IRP”) and an associated Environmental Impact Statement (“EIS”) for the IRP [See AR Docs. 10, 11, 12]. The IRP “sought to further diversify TVA's generation resources by expanding energy efficiency and demand side options, pursuing cost effective renewable energy, increasing the contribution of nuclear and natural gas generation and reducing its reliance on generation from older, coal-fired power plants” [Doc. 47]. The IRP and associated EIS, however, did not make facility-specific decisions, and provided that specific environmental reviews would be conducted before final implementation decisions were made [Doc. 51]. Based on the goals identified in the IRP, defendant analyzed the Gallatin Life Extension Project (the “Gallatin Project”) in an Environmental Assessment (“EA”) [Doc. 47].

Defendant prepared and released a draft EA for the Gallatin Project in October 2012 [AR Doc. 6]. Defendant also published three requests for public comments in local newspapers [See AR Docs. 3, 4, 5]. Defendant released the draft EA for a thirty-day public comment period, subsequently extended it for an additional fourteen days, and accepted late comments, giving the public a total of sixty-one days to comment on the draft EA [Doc. 47]. In March 2013, defendant released a final EA, [AR Doc. 7], and on March 11, 2013, defendant released a Finding of No Significant Impact (“FONSI”) [AR Doc. 8].

Plaintiffs subsequently brought this action asking the Court to invalidate defendant's decision to undertake the Gallatin Project and enjoin defendant from taking any further action to implement the Gallatin Project until it has complied with NEPA [Doc. 1 ¶ 6]. Plaintiffs assert that defendant has violated NEPA by: (1) predetermining the NEPA result; (2) committing resources before completing the NEPA process; (3) failing to prepare an EIS for the Gallatin Project; (4) failing to consider a legitimate no-action alternative; (5) failing to examine reasonable alternatives to the Gallatin Project; (6) improperly segmenting its analysis of the project; and (7) failing to allow for public comment [Doc. 1].

II. Standard of Review

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “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). The moving party bears the burden of establishing that no genuine issues of material fact exist.

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Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.1993). All facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir.2002). “When reviewing cross-motions for summary judgment, [the Court] must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.”Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir.2003).

“Once the moving party presents evidence sufficient to support a motion under Rule 56, the non-moving party is not entitled to a trial merely on the basis of allegations.” Curtis Through Curtis v. Universal Match Corp., Inc., 778 F.Supp. 1421, 1423 (E.D.Tenn.1991) (citing Catrett, 477 U.S. at 317, 106 S.Ct. 2548 ). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249, 106 S.Ct. 2505. Nor does the Court search the record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

“Summary judgment ... is a particularly useful method of reviewing...