Sherwood v. Tenn. Valley Auth.

956 F.Supp.2d 856

Donna W. SHERWOOD, et al., Plaintiffs,

v.TENNESSEE VALLEY AUTHORITY, Defendant.

No. 3:12–CV–156.

United States District Court, E.D. Tennessee.

July 23, 2013.

Donald K. Vowell, Vowell and Associates, Knoxville, TN, for Plaintiffs.

Brent R. Marquand, Edwin W. Small, Richard E. Riggs, David D. Ayliffe, Tennessee Valley Authority, Knoxville, TN, for Defendant.

MEMORANDUM OPINION

THOMAS A. VARLAN, Chief Judge.

This civil action is before the Court on defendant Tennessee Valley Authority's (“TVA”) Motion for Summary Judgment on Count II (the NEPA Count) of the Second Amended Complaint [Doc. 129]. Plaintiffs filed a response [Doc. 139], and defendant replied [Doc. 147]. After careful consideration of the parties' arguments, the record in this case, and the relevant law, the Court finds the motion well taken and will dismiss the NEPA claim.

I. Background

Plaintiffs commenced this action on or about April 3, 2012, as a result of TVA's allegedly new vegetation management policy, which plaintiffs submit requires the removal of all trees, by cutting or using herbicide, that have a mature height of fifteen feet or taller within TVA's 15,900 mile transmission line right-of-way [Doc. 1].¹ Plaintiffs are citizens and residents of Tennessee [Doc. 170 ¶ 1]. Defendant TVA “maintains high voltage electric transmission lines to conduct electricity from sites where the electricity is generated to sites where the electricity is consumed, throughout a seven state region[,] including Tennessee” [ Id. ¶ 6].²

In their second amended complaint, plaintiffs brought four claims, designated as “counts”: an injunction based upon common law (easements, trespass, conversion of property, and taking of property without compensation) (“Count I”); declaratory and injunctive relief based upon defendant's failure to make the environmental impact statement required by the National Environmental Policy Act (“NEPA”) prior to implementing the new policy (“Count II”); declaratory and injunctive relief under the Administrative Procedure Act (“APA”) for defendant's failure to engage in notice and comment rulemaking (“Count III”); and declaratory and injunctive relief under the APA for arbitrary and capricious action (“Count IV”) [ Id. ¶¶ 94–125]. In response, TVA filed a motion to dismiss Counts I, III, and IV, and a motion for summary judgment with respect to Count II [Docs. 65, 129]. Plaintiffs filed a motion to amend the complaint, which asked for leave to assert additional causes of action and to include additional plaintiffs [Doc. 83].

Considering the motion to dismiss and motion to amend together, the Court granted the motion to dismiss and granted in part and denied in part the motion to amend, finding plaintiff could include certain individuals as additional plaintiffs but could not assert additional causes of action against TVA [Doc. 162]. Plaintiffs thus filed a third amended complaint, which sets forth additional factual paragraphs and asserts noncompliance with NEPA [Doc. 170].

TVA has notified the Court that the filing of the third amended complaint should not moot the pending motion for summary judgment because the sole cause of action in the third amended complaint is for violation of NEPA and is substantially identical to the NEPA cause of action alleged in the second amended complaint [Doc. 173]. Because the Court agrees, and because plaintiffs did not object to TVA's characterization, the Court turns to the merits of the motion for summary judgment. See Graham v. City of Oklahoma City, 859 F.2d 142, 144–45 (10th Cir.1988) (initial motion for summary judgment properly granted where original complaint and amended complaint were “substantially identical” and plaintiff had “adequate notice and sufficient opportunity to meet defendants' arguments contained in the initial motion for summary judgment” (footnote omitted)).

II. Standard of Review for Summary Judgment Motion

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. 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 all 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). “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 federal agency decisions[, as here,] because ‘the sole question at issue [is] a question of law,’ and the underlying material facts are contained in the administrative record.” Lone Tree Council v. U.S. Army Corps of Eng'rs, No. 06–12042–BC, 2007 WL 1520904, at *11 (E.D.Mich. May 24, 2007) (second alteration in original and citation omitted). “The Court's role is to determine whether judgment as a matter of law is appropriate for either party, in light of the standard of review prescribed by [NEPA] and interpretive case law of an agency's decision not to prepare an [environmental impact statement].” Id.

III. Analysis

NEPA is “our basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a), and is designed to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man,” 42 U.S.C. § 4321. To that end, NEPA requires federal agencies to take a “hard look” at the environmental consequences of their projects before taking action. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); 42 U.S.C. § 4332(2)(C). NEPA also requires that federal agencies follow the necessary process in assessing the environmental effects of projects; it does not, however, mandate a specific result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); see also Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227–28, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980). In other words, NEPA's mandate is essentially procedural. Id.

A primary provision of NEPA is the requirement that all federal agencies prepare an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1502.1, 1508.18; Sw. Williamson Cnty. Assn., Inc. v. Slater, 243 F.3d 270, 274 n. 3 (6th Cir.2001). “Major” has no meaning independent of “significantly,” and “actions” “include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals.” 40 C.F.R. § 1508.18. An EIS is the most detailed and comprehensive level of review under NEPA regulations. See40 C.F.R. § 1508.11; see also 40 C.F.R. Part 1502.

Prior to preparing an EIS, the agency may, however, prepare an environmental assessment (“EA”) as a preliminary step in determining whether the environmental impact of the proposed action is sufficiently significant to warrant an EIS. See40 C.F.R. § 1508.9(a)(1). “The EA is to be a ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ ” Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (alterations in original) (quoting 40 C.F.R. § 1508.9(a)). “If, pursuant to [an] EA, an agency determines that an EIS is not required under applicable [regulations issued by the Council on Environmental Quality (“CEQ”) ], 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.” Id. at 757–58, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(e), 1508.13).

In some cases, however, the agency need not go through this...