Sherwood v. Tennessee Valley Auth.

DONNA W. SHERWOOD, ET AL., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.

No. 3:12-CV-156-TAV-HBG

United States District Court, E.D. Tennessee

July 30, 2021

AMENDED ^[1] MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE

This matter is before the Court on defendant Tennessee Valley Authority's (“TVA”) Motion to Dissolve Injunction [Doc. 458], and plaintiffs' Motion to Require TVA to Compile the Administrative Record for Its Decision to Implement Alternative C and/or For Discovery [Doc. 464]. These motions have been fully briefed [Docs. 459, 463, 465 468, 469], and the matter is now ripe for the Court's review. For the reasons stated below, the Court will GRANT TVA's motion to dissolve the injunction [Doc. 458] and DENY AS MOOT plaintiff's motion for the administrative record or discovery [Doc. 464].

I. BACKGROUND

The Court presumes familiarity with this action based on the Court's previous opinions and orders, as well as the Sixth Circuit's opinions. Nevertheless, the Court will provide a brief background of the litigation in this case. This litigation started in 2012, when plaintiffs sued defendant for violating the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370m-12. Plaintiffs alleged that defendant violated NEPA by not preparing and publishing an environmental impact statement (“EIS”) prior to implementing a new policy referred to in this litigation as the “15-foot rule.”^[2] See Sherwood v. Tenn. Valley Auth., 842 F.3d 400, 402 (6th Cir. 2016). After several rounds of litigation in this Court and in the Court of Appeals for the Sixth Circuit, this matter came back before this Court on remand from the Sixth Circuit [Doc. 356].

While this matter was on remand, after the first appeal, defendant moved to dismiss the case as moot [Doc. 232], asserting that it had suspended use of the 15-foot rule and reverted to the right-of-way maintenance practices that were utilized prior to the introduction of the 15-foot rule [Doc. 276, p. 2]. The Court granted defendant's motion and dismissed the case as moot [Docs. 276, 277], and plaintiffs appealed that decision to the Sixth Circuit [Doc. 286].

On that second appeal, the Sixth Circuit provided that even if defendant had formally abandoned the 15-foot rule, “evidence in the record suggests that [defendant] has not reverted back to the right-of-way practices it used before adopting the rule” [Doc. 356, p. 8]. The Sixth Circuit determined that some evidence in the record suggested that the 15-foot rule has some continuing effect and, therefore, that the case was not moot [Id. at 8-9]. The Sixth Circuit found that defendant's “promise to perform NEPA review before changing its buffer-zone maintenance policies is not an adequate assurance that its challenged conduct will not recur” [Id. at 10]. The Sixth Circuit further determined that “the record shows more than a ‘mere possibility' that defendant's challenged conduct will recur (or is continuing)” [Id.]. The Sixth Circuit then remanded the case, providing that this Court should require defendant to compile an administrative record of its decision to implement the 15-foot rule [Id. at 11].

On second remand, defendant ultimately filed a Confession of Judgment in Plaintiffs' Favor [Doc. 377]. In that confession of judgment, defendant consented to entry of a judgment declaring that its implementation of the 15-foot rule violated NEPA [Doc. 377, p. 1]. Defendant also informed the Court that it had published notice in the Federal Register that it was preparing a programmatic, system-wide EIS of its transmission line right-of-way vegetation maintenance practices [Id.].

Based on defendant's confession of judgment, this Court found that TVA's implementation of the 15-foot rule violated NEPA, as well as its implementing regulations, because it was a major federal action significantly affecting the quality of the human environment and was not properly studied under NEPA prior to its implementation [Doc. 425, p. 10]. At that time, the parties disputed various provisions of the proposed injunction, including provisions for when the injunction would dissolve. As to that issue, the parties raised similar arguments to those before the Court today, namely, whether the injunction should dissolve upon TVA's completion of an EIS under NEPA, or whether the Court should retain jurisdiction to review the EIS for NEPA compliance [ Id. at 20-22]. The Court noted that there was precedent to support both positions [Id. at 22-23].

Ultimately, the Court recognized that plaintiffs would face procedural hurdles to challenging the new policy, and further environmental harm could occur while plaintiffs filed a new lawsuit [Id. at 24]. The Court found that these concerns had merit and held that it would retain jurisdiction over the injunction beyond defendant's representation that it had issued an EIS [Id.]. The Court also recognized, however, that TVA could implement a rule “very different” from the 15-foot rule, and, if that occurred, it may constitute a “significant change in factual circumstances” that could warrant dissolving the injunction [Id. at 25 (citing Sierra Club v. U.S. Dep't of Agric., No. 94-CV-4061, 2013 WL 811672, at *17-20 (S.D. Ill. Mar. 5, 2013))].

The Court instructed that: “[o]nce defendant issues a final decision it believes complies with NEPA, the Court will require defendant to file a request for dissolution of the injunction. At that point, plaintiffs will have the opportunity to state their position regarding whether the motion should be dissolved” [Id.]. The Court continued to state that it “would then determine whether there is a change in circumstances that justifies dissolving the injunction without reviewing the EIS” [Id.]. The Court concluded that this approach would ensure defendant's compliance with NEPA [Id.].

Defendant now seeks to dissolve the injunction, on the ground that it has complied with NEPA by preparing a programmatic EIS (“PEIS”)^[3] [Doc. 458]. Plaintiffs oppose defendant's motion to dissolve the injunction [Doc. 463], and instead, move to require TVA to compile the administrative record for its EIS procedure [Doc. 464].

II. STANDARD OF REVIEW

The modification and dissolution of injunctions is governed by Federal Rule of Civil Procedure 60(b)(5). Deja Vu of Nashville, Inc. v. Metro. Gov. of Nashville & Davidson Cnty., 466 F.3d 391, 395 (6th Cir. 2006). In relevant part, Rule 60(b)(5) states that “the court may relieve a party . . . from a final judgment, order, or proceeding [if] . . . the judgment has been satisfied, release, or discharged . . . or it is no longer equitable that the judgment should have prospective application.” Fed.R.Civ.P. 60(b)(5). The party seeking to dissolve an injunction bears the burden of establishing that a change in circumstances, either in fact or law, warrants revisiting or modifying the injunction. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992).

“[A] sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” Id. at 388. “Ongoing injunctions should be dissolved when they no longer meet the requirements of equity.” Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994).

III. ANALYSIS

A. Defendant's Position

Defendant contends that it issued its Final PEIS in August 2019, and, after the statutory comment period, issued the Record of Decision on October 18, 2019 [Doc. 459, p. 3]. Defendant contends that its PEIS regarding its transmission line vegetation management practices complies with NEPA [Id.]. Defendant states that it considered, but eliminated, an alternative that encompassed the type of clearing that existed under the 15-foot rule [Id.]. Instead, defendant opted for “Alternative C: Condition-Based Control Strategy - End-State Meadow-like, Except for Areas Actively Maintained by Others (Compatible Trees Allowed)” [Id. at 4].

Defendant argues that, because it has not implemented the 15-foot rule, and has complied with the procedural requirements of NEPA, the Court's injunction should be dissolved [Id.]. Defendant notes that it made diligent efforts to involve the public at every step of the PEIS's development, including providing extensive opportunity for public comment [Id. at 4-5].

Defendant also contends that the PEIS fulfilled NEPA's procedural requirements [Id. at 5-12]. Defendant notes that, while NEPA sets forth broad environmental goals, its mandate is essentially procedural [Id. at 6]. Defendant contends that NEPA allows agencies to analyze actions programmatically and generically, and subsequent site-specific reviews can then “tier” from a programmatic EIS and incorporate by reference the general discussions in the programmatic documents so as to focus on the issues specific to the site and the action being analyzed in the subsequent review [Id. at 6-7 (citing 40 C.F.R. §§ 1502.4(c)(2), 1508.28]. Defendant states that, because its vegetation management study was a programmatic one, it studied management methods and their environmental impacts across TVA's entire transmission system and will permit subsequent reviews of the management of individual transmission line segments in site-specific reviews [Id. at 8].

Defendant states that, pursuant to 40 C.F.R. § 1502.14(a), it considered, but eliminated from detailed analysis, three management alternatives because they were not practicable or would not achieve TVA's goals for the proposed action including (1) the use of one type of control method across the entire system; (2) allowing landowners to maintain trees on parcels where the landowner primarily maintains the floor; and ...