Young v. Tennessee Valley Authority

• Decision Date: 24 September 1979
• Docket Number: No. 77-1243,77-1243
• Citation: 606 F.2d 143
• Parties: 9 Envtl. L. Rep. 20,713 William M. YOUNG and Faith Adams Young, Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 143

606 F.2d 143

9 Envtl. L. Rep. 20,713

William M. YOUNG and Faith Adams Young, Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellees.

No. 77-1243.

United States Court of Appeals, Sixth Circuit.

Argued April 9, 1979.

Decided Sept. 24, 1979.

Robert B. Pyle, Leroy J. Ellis, III, Nashville, Tenn., William E. Garner, Scottsboro, Ala., for plaintiffs-appellants.

Herbert S. Sanger, Jr., Gen. Counsel, Tennessee Valley Authority, Charles A. Wagner, III, Justin M. Schwamm, Clay S. Davis, Jr., Charles W. Van Beke, Knoxville, Tenn., for defendants-appellees.

Before EDWARDS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.

WEICK, Circuit Judge.

This appeal involves the legal question whether the Tennessee Valley Authority (TVA) has authority under the Tennessee Valley Authority Act of 1933, 16 U.S.C. § 831 Et seq., to construct the Hartsville nuclear powered electric generating plant on a site located on the Cumberland River near Dixon Springs, Tennessee, outside the watershed of the Tennessee River. We hold that the TVA does possess such authority and it is supported by its own frequent and long standing construction of the Act and the evidence of ratification thereof by Congress.

The facts are not in dispute. Appellants are owners of a 150 acre farm located in Dixon Springs, Tennessee, near the site of TVA's proposed multimillion dollar Hartsville Nuclear Electric Generating Plant on the Cumberland River. Appellants filed this suit in the District Court for the Middle District of Tennessee seeking to enjoin TVA from performing site preparation for the power plant and to obtain a declaratory judgment that TVA had no statutory authority to condemn land near the Cumberland River or to construct said plant on the Cumberland River. The Cumberland River drains an area adjacent to the area drained by the Tennessee River and its tributaries. Although the Cumberland and Tennessee Rivers converge and flow close to one another for some distance before both empty into the Ohio River, see United States ex rel. TVA v. Two Tracts of Land, 456 F.2d 264 (6th Cir.), Cert. denied, 409 U.S. 887, 93 S.Ct. 108, 34 L.Ed.2d 143 (1972), it is admitted that the Cumberland River is not a tributary of the Tennessee River. The proposed plant is located well within the TVA's statutorily defined 80,000 square mile service area. When oral argument of the appeal was heard before this court on April 9, 1979, the plant was 15% Completed.

The District Court denied the motion for an injunction and dismissed appellant's complaint for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). The only question of law before this court is whether the Tennessee Valley Authority has authority under the Tennessee Valley Authority Act of 1933 to construct power plants outside the watershed of the Tennessee River.

The TVA was created

For the purpose of maintaining and operating the properties now owned by the United States in the vicinity of Muscle Shoals, Alabama, in the interest of the national defense and For agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins . . . . 16 U.S.C. § 831 (Emphasis added.)

The statutes granting the TVA authority to condemn property and to construct power plants are 16 U.S.C. §§ 831c(i) and (j) which read in pertinent part as follows:

(i) Shall have power to acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects at any point along the Tennessee River, or any of its tributaries, and in the event that the owner or owners of such property shall fail and refuse to sell to the Corporation at a price deemed fair and reasonable by the board, then the Corporation may proceed to exercise the right of eminent domain, And to condemn all property that it deems necessary for carrying out the purposes of this chapter . . . . (Emphasis added.)

(j) Shall have power to construct such dams, and reservoirs, in the Tennessee River and its tributaries, as in conjunction with Wilson Dam, and Norris, Wheeler, and Pickwick Landing Dams, now under construction, will provide a nine-foot channel in the said river and maintain a water supply for the same, from Knoxville to its mouth, and will best serve to promote navigation on the Tennessee River and its tributaries and control destructive flood waters in the Tennessee and Mississippi River drainage basins; And shall have power to acquire or construct power houses, power structures, transmission lines, navigation projects, and incidental works in the Tennessee River and its tributaries, and to unit the various power installations into one or more systems by transmission lines. (Emphasis added.)

The phrasing of both paragraphs is certainly ambiguous. In paragraph (i) the phrase "at any point along the Tennessee River, or any of its tributaries" can be read to modify the words "navigation projects" or it can be read to modify the entire preceding list of words including the words "power houses." If the phrase is read to modify the entire list, then TVA's power to condemn is narrow and confined to condemnation "at any point along the Tennessee River, or any of its tributaries." If the phrase modifies only "navigation projects," as TVA contends, then TVA's power to condemn is broad and only condemnation of land for navigation projects is confined to "any point along the Tennessee River, or any of its tributaries." Similarly, in paragraph (j) the phrase "in the Tennessee River and its tributaries" can be read to modify only the words "incidental works," as TVA contends, so that only incidental works constructed by TVA must be actually located In the Tennessee River and its tributaries, or the phrase can be read to modify the entire preceding list including the words "power houses." Congress could easily have used the phrase "on the banks of the Tennessee River or its tributaries" or the phrase "within the territory drained by the Tennessee River or its tributaries," instead of the phrase "in the Tennessee River and it tributaries" in paragraph (j), or, conversely, Congress could easily have more clearly stated that TVA was free to construct power plants anywhere, so long as said plants were demonstrably constructed to achieve Congress' express purpose of fostering agricultural and industrial development in the Tennessee River Valley and the larger service area, however the Act contains no such clear statement.

Appellants concede that TVA has the authority under paragraph (i) to "condemn land in Wyoming at its Morton Ranch in order to obtain uranium for its nuclear reactors" (Appellant's Reply Brief at 7), thus appellant in one instance has adopted TVA's broad construction of paragraph (i), yet appellant contends that TVA lacks authority under similar ambiguous language in paragraph (j) to construct a power house outside the Tennessee River watershed. The parties agree that the TVA can build dams and navigation projects only on the Tennessee River or on one of its tributaries.

In considering the legality of agency action under an enabling statute, we do not write on a clean slate. Ordinarily, a court should give great weight to the frequent, consistent, and long standing construction of a statute by an agency charged with its administration. See e. g. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978); E. I. du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 54-55, 97 S.Ct. 2229, 53 L.Ed.2d 100 (1977); Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 409-10, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975); NLRB v. Boeing Co.,412 U.S. 67, 74-75, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Particularly this is true with respect to a statute which is reasonably susceptible of two different interpretations. The construction of a statute by those agencies charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress with knowledge of the facts has consistently taken no steps to prohibit or curtail the administrative actions; but has approved them. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The record indicates that locations for TVA power plants historically have been chosen for economic reasons, such as minimizing the cost of fuel transportation and construction costs. The construction and operation of power plants and the distribution of electric energy generated therefrom requires expertise which should be accorded deference by the courts. The TVA Act in issue must be liberally construed to carry out the purposes of Congress which are, Inter alia, to promote interstate commerce and the public welfare. 16 U.S.C. § 831dd; United States ex rel. TVA v. Welch, 327 U.S. 546, 551, 66 S.Ct. 715, 90 L.Ed. 843 (1946).

The legislative history of the Act contains no clear guidance. H.R. 5081, the original house bill, set forth the TVA's authority to acquire land and to construct "dams, reservoirs, power houses, power structures, and navigation projects, in the Tennessee River and its tributaries." The Senate amendment contained no such equivalent provision. The Act was recast into its present form and adopted by Congress with almost no explanation. The conference committee inserted the words "incidental works" at the end of the list presently contained in section 4(j), however, we do not consider such insertion, without more, clearly to support either construction.

TVA concedes that dams and reservoirs must be located on the Tennessee River or its tributaries. See H.R.Rep. No. 130, 73d Cong., 1st Sess. 16-20 (1933); H.R.Rep. No. 48,...