Between A Dentist, His Front Yard, and the TVA?

NEPA gets into the damndest places. The front yard of 2428 Hidden Lake Circle in Columbia, TN, probably shouldn’t be one of them.

On Tuesday, United States District Judge Kevin H. Sharp, U.S. District Court for the Middle District of Tennessee, ordered, well, the unthinkable.  The judge granted a temporary restraining order—akin to a preliminary injunction—against the Tennessee Valley Authority (TVA) because TVA planned to remove a few trees (see above) from a dentist’s front yard. TVA holds an easement for its power lines there, like it does throughout its 16,000 miles of transmission lines.  And it planned to do so without preparing an environmental impact statement (EIS).

So the judge will hold a bench trial on August 1st on the merits of this kerfuffle, according to an opinion he signed Tuesday.  See Dennis Sigman, D.D.S. v. Tennessee Valley Auth., 2016 WL 2986257 (M.D. Tenn. 2016).  This post considers those merits and the TRO against a national baseline where NEPA relief has grown increasingly hard to come by.

NEPA for a Few Trees?

Ordinarily, the National Environmental Policy Act (NEPA) doesn’t belong in matters this small.  But seeking anything to spare one’s beloved trees can sometimes be worth it.  And there’s always the unconventional.  The good doctor found it in this case: when TVA showed up to cut trees out of their right-of-way, he (reasonably) demanded to know whether they’d considered the environmental impacts of doing so.  Of course, NEPA § 102(2)(C) says only significant impacts can require an EIS.  Would these 14 trees’ loss be a significant environmental impact?

If TVA had its ducks in a row, it should’ve just been a matter of citing what we call a “categorical exclusion” (CATX) for actions having demonstrably minor effects.  What the case may show is that those ducks were all out of line.

Rule or Individuated Action?

The only real question in the case given NEPA § 102(2)(C)’s significance threshold is whether TVA’s tree trimming ought to be aggregated to the level at which the agency makes policies generally or rather can be treated as it came to court: one tree-cutting project on one front yard with minimal environmental impact possible, likely fitting into any of several TVA CATXs.

TVA Transmission System

TVA’s Transmission System

The issue is that, recently, TVA became much more attentive to keeping its transmission corridors tree free. Consider how one Sixth Circuit panel cast the question in a very similar case from late 2014:

Although the TVA has been maintaining the vegetation in its easements for more than seventy years, it has not removed all of the taller, mature trees located within its rights-of-way. The right-of-way specialists have been afforded discretion in deciding which, if any, trees to remove. Budget constraints have further restricted the discretion afforded the specialists.  In recent years, the wisdom of allowing these taller trees to grow within electric transmission line easements was called into question. In August 2003, approximately 50 million people in the Midwest and Northeast portions of the United States suffered a power outage for up to two days. It was later determined that the blackout was caused by a tree that came into contact with power lines. This event set in motion a review of transmission line maintenance programs. According to several documents in the record, in 2007, the North American Electric Reliability Corporation (NERC), a government-certified industry organization that sets reliability standards for the transmission of electricity, established rules for vegetation management around electric transmission lines.

Sherwood v. Tennessee Valley Auth., 590 Fed. Appx. 451, 554-55 (6th Cir. 2014).

TVA’s position on clearing any trees taller than 15 feet was motivated, according to the Sixth Circuit at least, by the fact that failure to heed NERC’s guidance could mean up to $1M per day in fines.  Yet according to the agency, TVA never really did adopt a formal policy after NERC’s updates, a position TVA’s public affairs office maintains still today.  (NERC’s own standards, for a variety of reasons, leave plenty of room to maneuver on compliance.)

In remanding to the district court so that it could seek a proper administrative record, the Sherwood panel at least hinted that adoption of any such agency-wide vegetation management policy affecting 260,000+ acres of easements should’ve prompted TVA to prepare an EIS.  But after that remand, the Sherwood litigation fizzled as moot when TVA agreed that, if there ever was such a policy, it’d been rescinded.  See Sherwood v. Tennessee Valley Auth., 124 F. Supp.3d 779, 785-86 (E.D. Tenn. 2015).

The Standard for a Preliminary Injunction

The standard Judge Sharp applied is nothing if not traditional in cases where a party has moved for an injunction pending trial on the merits.  The four factors weighed were: (1) whether the movant is likely to succeed on the merits; (2) whether the movant will suffer irreparable injury if an injunction is denied; (3) any potential harm the injunction could cause the opposing party or others; and (4) the public interest.  2016 WL 2986257 at *2.  That’s amiably similar to the four factors the Supreme Court held were applicable in the famous NEPA case of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

The first factor—likelihood of success on the merits—towers over the others here, though.  Interestingly, the court also said, citing Sixth Circuit precedent and not Winter, that “[t]hese factors are not prerequisites which must be met, but are interrelated considerations that must be balanced together,” and that a court “is not required to make specific findings concerning each of the four factors used in determining a motion for preliminary injunction if fewer factors are dispositive of the issue.”  Id. at *2.  And that’s pretty clearly not what the Supreme Court held in Winter when it called a preliminary injunction an “extraordinary remedy” and denied the injunction because of the plaintiffs’ failures on factors 2, 3, and 4. See Winter, 555 U.S. at 24-33.  But let’s leave that aside for now.

What is fascinating about ‘likelihood of success on the merits’ here is that Judge Sharp wouldn’t take TVA’s affidavits—or its proposed administrative record—as proof that the agency’s personnel-on-the-ground had made an individuated decision about the dentist’s trees.  The court noted, instead, that the credibility of the TVA personnel who affirmed these facts should be tested in a trial-type proceeding:

If what Plaintiff and his assistant testified to was true, and if [TVA’s agent] made his decision based even in part on the 15-foot rule – points which the court need not decide at this juncture – then it would suggest a violation of NEPA in light of Sherwood. That testimony is sufficient to call for more deliberate investigation and weighs in favor of an injunction.

TVA symbol New DealNotice the use of Sherwood here: as a rule and not as a remand without any conclusive resolution.  And also notice how the plaintiff’s own testimony was sufficient to put the government agency’s word in doubt.  This could be the beginning of a real NEPA saga.  The TVA is an everyday enemy in much of Tennessee.  And Judge Sharp may have just grabbed a thread winding through its NEPA practices worth tugging on really, really hard.  But if not, this dentist just avoided a cavity—in his front lawn—courtesy of NEPA’s being over-extended and under-appreciated.

{Image: 2428 Hidden Lake Circle, Columbia, TN, ©Google Maps StreetView}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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