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Tennessee Valley Auth. v. EPA

ELR Citation: 32 ELR 20407
Nos. Nos. 00-12310 et al., 278 F.3d 1184/(11th Cir., 01/08/2002)

The court holds that it has jurisdiction to review a U.S. Environmental Protection Agency (EPA) Environmental Appeals Board (EAB) decision upholding three EPA orders against the Tennessee Valley Authority (TVA) requiring the TVA to obtain after-the-fact permits for modifications made to many of its coal-fired plants in the past 20 years. EPA argued that the TVA lacks independent authority to bring this action against EPA over the opposition of the Attorney General. However, the court first holds that the decisions of other courts, the language of the TVA Act, Congress' subsequent statements, and the TVA's long history of self-representation without objection from the U.S. Department of Justice support the conclusion that the TVA possesses independent litigation authority. The court also holds that although EPA and the TVA are executive branch agencies whose leaders serve at the pleasure of the president, the case is justiciable. The issue is traditionally justiciable and the dispute presents concrete adversity. In addition, the court holds that the EAB decision is a reviewable final order. The EAB decision represents the "consummation" of its decisionmaking process in this case, and it is one by which rights or obligations have been determined. Similarly, the court holds that the decision is ripe for review even though the TVA did not submit the dispute to the Attorney General or the Office of Management and Budget pursuant to Executive Order Nos. 12146 and 12088. The TVA's failure to comply with the orders does not result in any exhaustion or ripeness problems, and it does not interfere with the separation-of-powers doctrine. Lastly, the court holds that private parties have standing to challenge the EPA orders.

Counsel for Plaintiff
James Fox, General Counsel
Tennessee Valley Authority
83 Dixon Springs Hwy., Carthage TN 37030
(615) 735-1260

Counsel for Defendant
David Gualtieri
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Barkett, J. Before Tjoflat and Wilson, JJ.