Environmental Defense Fund, Inc. v. Tennessee Valley Authority

No. 1130 (E.D. Tenn. December 11, 1972)

In a suit to enjoin construction of the Duck River dam and reservior, the court dismisses constitutional claims, grants summary judgment in favor of defendant's claim under the Tennessee Valley Authority Act, and reserves judgment on a claim alleged under the National Environmental Policy Act (NEPA). The court concludes that (1) neither the Fifth, the Ninth, nor the Fourteenth Amendment contains an enforceable right to personal enjoyment of the natural environment, (2) federal defendants have complied with their statutory responsibility under the TVA Act to give written notice of the project to the Secretary of the Interior, and (3) the plaintiffs' affidavit denying that TVA has complied with all the procedural requirements of NEPA, while insufficient, leaves the issue in dispute.

Counsel for Plaintiff
Jon T. Brown
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

Edward Lee Rogers
Environmental Defense Fund
162 Old Town Road
East Setauket, New York 11733

Robert L. Echols
Bailey, Ewing, Dale & Conner
706 Nashville Bank & Trust Bldg.
Nashville, Tennessee 37201

Counsel for Defendant
Robert Marquis
Tennessee Valley Authority
Knoxville, Tennessee

Lon P. MacFarland
Upper Duck River Development Co.
104 West 7th Street
Columbia, Tennessee 38401

[3 ELR 20332]

Neese, J.

MEMORANDUM OPINION AND ORDER

This is an application for injunctive relief for ecological reasons against the construction by the defendant Tennessee Valley Authority (T.V.A.) of its Duck River project. This project is comprised of the Columbia dam and reservoir, proposed for construction in Maury and Marshall counties, Tennessee,¹ and the Normandy dam and reservoir, proposed for construction in Bedford and Coffee counties, Tennessee.

The remaining claims of the plaintiffs for relief² allege violations by the defendants of: The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq; The Tennessee Valley Authority Act of 1933 (TVA act), § 9a, 16 U.S.C. § 831h-1; 16 U.S.C. § 469a (relating to the notice of the construction of a dam in connection with the preservation of historical and archeological data threatened with such construction); the Constitution, Fifth, Ninth and Fourteenth Amendments; and the public trust doctrine. The defendants T.V.A. and the chairman of its board of directors Mr. Aubrey Wagner moved to dismiss each such claim, on the ground that each fails to state a claim upon which relief can be granted, Rule 12 (b) (6), Federal Rules of Civil Procedure, or, in the alternative, for a summary judgment as to each respective issue, Rule 56 (b), Federal Rules of Civil Procedure.

The plaintiffs fail to state claims upon which relief can be granted, with regard to their respective claims that the language of 16 U.S.C. § 831h-1 requires resulting benefits of both navigation and flood control before the T.V.A. may proceed with a project, and that the defendants are about to violate the public trust doctrine. These matters will be considered together, as the applicable authorities involved pertain with equal force to both.

Whether the Duck River project of T.V.A. may be undertaken is a matter which addresses itself to Congress and not to the courts. As has been stated in this connection:

* * *

* * * [I]t is the sole prerogative of the Congress of the United States to determine if the project is proceeding in accordance with its authorization, and, if not, to determine what, if anything, it wishes to do about it. The Congress has the means to bring such matters to its attention and the power, through appropriations and otherwise, todeal with such problems as it sees fit. * * *

Environmental Defense Fund v. Corps of Eng. of U.S. Army, D.C. Ark. (1971), 325 F. Supp. 749, 754-755 [2]. And, as this Court has observed:

* * *

* * * The necessity and expediency of taking property for public use is a purely political determination for the Legislative Branch. It is not a subject for judicial inquiry, and it requires no hearing. Joslin v. Providence (1923) 262 U.S. 668, 678, 43 S. Ct. 684, 67 L.Ed. 1167, 1176 (headnote 12). After the Legislative Branch has decided the question of public purpose, neither the amount or character of the land to be taken for a project nor the need of particular acreage to complete the integrated plan adopted, are matters for the Judicial Branch. Berman v. Parker (1954), 348 U.S. 26, 35-36, 75 S. Ct. 98, 99 L.Ed. 27 (headnote 14). These basic principles have been followed uniformly. See United States v. Bowman, C.A. 7th (1966), 367 F.2d 768, 770 [4]; United States v. Mischke, C.A. 8th (1961), 285 F.2d 628, 631; also United States ex rel. TVA v. Welch (1946), 327, U.S. 546, 551-552, 66 S. Ct. 715, 90 L.Ed. 843, 848-848 (headnote 3). * * *

United States v. 544 Acres of Land, Etc., Franklin Co., Tenn., D.C. Tenn. (1969), 314 F. Supp. 273, 274 [1, 2], see also 309 F. Supp. 46. Finally, the Supreme Court has established that:

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In passing upon the authority of the T.V.A. we * * * view the entire transaction as a single integrated effort on the part of T.V.A. to carry on its Congressionally authorized functions. * * * [T]he Congressional policy embodied in the Act * * * does far more than authorize the T.V.A. to build isolated dams. The broad responsibilities placed on the Authority relate to navigability, flood control, reforestation, marginal lands, and agricultural and industrial development of the whole Tennessee valley. * * *

United States ex rel. T.V.A. v. Welch, supra, 327 U.S. at 552-553, 90 L.Ed. at 848 (headnote 4).

Thus it is, that the decision whether T.V.A.'s Duck River project, as planned, should be implemented by the defendants, and whether such project infringes the doctrine of public trust, are matters determinable and determined by the Congress. The separation of powers as between the Legislative and Judicial branches of our federal government preclude judicial review of the wisdom of the Congress in making the determinations which it has made. The plaintiffs having failed to state respective claims under 16 U.S.C. § 831h-1 and the public trust doctrine upon which relief can be granted by this Court, the motion of the defendants as to such claims hereby is GRANTED, and the complaint hereby is DISMISSED as to such claims.

Neither is it the proper function of a federal trial court to make a determination that the Constitution, Fifth, Ninth and Fourteenth Amendments, create certain penumbral rights in the plaintiffs and other citizens to the individual enjoyment of an unspoiled environment. This Court is content to adopt on this issue the reasoning of the District Court for the Eastern District of Arkansas, which pointed out:

* * *

The Court is not insensitive to the positions asserted by the plaintiffs * * *. [T]hey contend:

"The right to enjoy the beauty of God's creation, and to live in an environment that preserves the unquantified amenities of life, is part of the liberty protected by the Fifth and Fourteenth Amendments to the Constitution of the United States * * * and is also one of those enumerated rights retained by the people * * * as provided in the Ninth Amendment * * *."

Those who would attempt to protect the environment through the courts are striving mightily to carve out a mandate from the existing provisions of our Constitution. Others have proposed amendments to our Constitution for this purpose. See Toward Constitutional Recognition of the Environment, 56 A.B.A.J. 1061 (Nov. 1970). Such claims, even under our present Constitution, are not fanciful and may, indeed, some day, in one way or another, obtain judicial recognition. But, as stated by Judge Learned Hand in Spector Motor Serv., Inc. v. Walsh, 139 F.2d 809 (2 Cir., 1944):

"Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant."

The Ninth Amendment may well be as important in the development of constitutional law. during the remainder of this century as the Fourteenth Amendment has been since the beginning of the century. But the Court concludes that the plaintiffs have not stated facts which would under the present state of the law constitute a violation of their constitutional rights as alleged * * * in their complaint. The Court's decision on this point gives further emphasis to its statement, supra, that final decisions in matters of this type must rest with the legislative and executive branches of government.

* * *

Environmental Defense Fund v. Corps of Eng. of U.S. Army, [3 ELR 20333]325 F. Supp. at 738-739 [8]; see also Upper Pecos Association v. Stans, C.A. 10th (1971), 452 F.2d 1233, 1236 [3].

The framers of the Fifth, Ninth and Fourteenth Amendments to our Constitution clearly have not guaranteed any right to the personal enjoyment of the environment Nature has provided us. Although a purpose of the Fifth Amendment is to protect citizens from oppressive governmental action, United States v. Cox, D.C. Miss (1965), 342 F. (2d) 167, 170 [1], certiorari denied (1965), 381 U.S. 935, 85 S. Ct. 1767, 14 L.Ed. (2d) 700; United States v. French, D.C. Pa. (1956), 151 F. Supp. 864, 865 [3], and for the security of their personal rights, United States v. Quarles (1955), 350 U.S. 11, 37, 76 S. Ct. 1, 100 L.Ed. 8, 25; United States v. Hocker, 268 F. Supp. 864, 869 [3], affirmed C.A. 9th (1968), 694 F. (2d) 169, certiorari denied (1968), 392 U.S. 944, 88 S. Ct. 2329, 20 L.Ed. (2d) 1406, rehearing denied (1968), 393 U.S. 900, 89 S. Ct. 78, 21 L.Ed. (2d) 194, and the Fourteenth Amendment protects every citizen against the forcible destruction by the Congress of that citizenship, Afroyim v. Rusk (1967), 387 U.S. 253, 267, 87 S. Ct. 1660, 18 L.Ed. (2d) 757, 766 [9-11], if the citizens' right to the personal enjoyment of our natural environment is to be inferred from the plain guaranties those Amendments to confer, that decision must come from a source other than this Court. The plaintiffs, having failed to state a claim on this issue upon which this Court can now grant relief, the defendants' motion as to such claim hereby is GRANTED, and the complaint hereby is DISMISSED as to such claim.

Matters outside the pleadings being presented and not objected to or excluded by the Court, by the claims remaining for consideration, and all parties appearing to have had reasonable opportunity to present all material made pertinent to a motion for a summary judgment by Rule 56, Federal Rules of Civil Procedure, the defendants' motion in the remaining aspects will be treated as one for summary judgment and disposed of as provided in Rule 56, supra. Rule 12 (b), supra.

There appears to be no genuine issue of material fact extant relative to the claim of the plaintiffs that the defendants violated 16 U.S.C. § 469a. Thereunder, the defendants were required to "* * * give written notice to the Secretary of the Interior setting forth the site[s] to be flooded and otherwise changed if such construction is undertaken. * * *" Idem. The plaintiffs concede that such written notice was given by defendants to the Secretary of the Interior.

Upon receipt of such notice, the burden passed statutorily to the Secretary of the Interior, who is directed to "* * * cause a survey to be made of the area proposed to be flooded to ascertain whether such area contains historical and archeological data (including relics and specimens) which should be preserved in the public interest. * * * If, as a result of any such survey, the Secretary shall determine (1) that such data exists in such area, (2) that such data has exceptional historical or archeological significance, and should be collected and preserved in the public interest, and (3) that it is feasible to collect and preserve such data, he shall cause the necessary work to be performed in such area to collect and preserve such data. * * *" Idem. Under 16 U.S.C. § 469a, the Secretary of the Interior, after receipt of the aforementioned written notice, is required to do certain things by statute which theretofore were only discretionary with him. See 2 U.S. Code Congressional and Administrative News (1960) 2404.

The sole duty of the defendants herein under that statute was to give the written notice. There, their duty began and ended; the further responsibility was that of the Secretary of the Interior. There being no genuine issue of fact extant between the parties as to the giving of such notice by the defendants, they are entitled to summary judgment forthwith on this issue as a matter of law. Rule 56 (c), Federal Rules of Civil Procedure. Further, it has been held that this statute creates no private cause of action in favor of the plaintiffs. United States v. 247.37 Acres, D.C. Ohio (1971), __ F. Supp. __ (3 ERC 1098, 1103-1104). Summary judgment on the plaintiffs' claim under 16 U.S.C. § 469a, therefore, will enter. Rule 58 (1), Federal Rules of Civil Procedure.

There may be, however, a genuine issue of material fact extant between the parties relating to the plaintiffs' claim under the NEPA. As to that claim, the defendants contend that NEPA, § 101, 42 U.S.C. § 4331, confers no right on private individuals; that they are entitled to a summary judgment, because the plaintiffs have filed no counteraffidavits opposing the affidavit of T.V.A.'s general manager Mr. Lynn Seeber, in which he stated, essentially, that T.V.A. has met all the procedural requirements of the NEPA; and that, even if given a right of action under the NEPA, the plaintiffs have no standing in this Court, because of their failure to exhaust all the administrative remedies available to them.

The plaintiff Environmental Defense Fund is a nonprofit, public-benefit corporation, incorporated by New York; some of its members reside in Tennessee and are so situated as to be directly affected and injurable by T.V.A.'s Duck River project. The plaintiff Duck River Preservation Association is a non-profit corporation, incorporated by Tennessee; in the main, its members are so situated as to be directly affected and injurable by such project. The individual plaintiffs Messrs. Banks, Shelton, Huffman, Duke and Vaughn are Tennessee citizens and residents of the area affected and injurable by such project. The standing of all the plaintiffs to maintain this action under the NEPA clearly has been established by the Supreme Court. "* * * [A]n organization whose members are injured may represent those members in a proceeding for judicial review. * * *" Sierra Club v. Morton (1972), 405 U.S. 727, __, 92 S. Ct. 1361, 31 L. Ed. 2d 636, 645 [9], cited in Environmental Defense Fund, Inc., et al., v. Corps of Engineers, etc., et al., D.C. Miss. (1972), __ F. Supp. __ (decided August 4, 1972).

The affidavit of Mr. Seeber, offered by the defendants in support of their motion for a summary judgment, states, in effect, that T.V.A. met the procedural requirements of the NEPA. The counteraffidavit of Jon T. Brown, Esq., an attorney of record for the plaintiffs, offered in opposition to the defendants' motion, is to the effect that he has available witnesses who will testify that the impactstatement of T.V.A. "* * * was biased, incomplete and nonobjective. * * *"

To the extent that Mr. Brown's countervailing affidavit undertakes to present facts not within his personal knowledge, it is defective. Local Union No. 490, U.R., C., L. & P. Wkrs. v. Kirkhill Rubber Co., C.A. 9th (1969), 367 F. (2d) 956, 958 [2]. Based upon the representation of such affiant that "* * * an individual who is intimately familiar with the environmental analysis conducted by TVA for the Duck River Project * * *" is "* * * prepared to submit oral or written testimony within the near future * * *" concerning facts within the personal knowledge of such prospective witness, the Court will not at this time grant the defendants a summary judgment on the claim of the plaintiffs that the defendants have not complied sufficiently with the NEPA. However, the plaintiffs must show forthwith by proper counteraffidavits that they have evidence to present on the trial to rebut the evidence which the affidavit of Mr. Seeber demonstrates the defendants have to offer on this claim.

The Court, accordingly, is not deciding any issue of fact on the claim of the plaintiffs that the defendants have violated the NEPA. Affidavits in connection with a motion for summary judgment are to be used to demonstrate that the parties have evidence to present on the trial on a genuine issue of material fact; "* * * not to decide the factual issues which [may] be presented. * * *" McCullough Tool Company v. Well Surveys, Inc., C.A. 10th (1968), 395 F. (2d) 230, 236 [7]. It should be understood by the parties that:

* * *

The mandates of the N.E.P.A. pertain to procedure and not to substance, that is, decision making in a given agency is required to meet certain procedural standards, yet the agency is left in control of the substantive aspects of the decision. The N.E.P.A. creates no substantive rights in citizens to safe, healthful, productive and culturally pleasing surroundings. Instead, the responsible agency is required to take these factors into account at some point before the commencement of the project. * * *

Upper Pecos Association v. Stans, supra, 452 F. (2d) at 1236 [3]. In other words, it is not for this Court at any juncture to superimpose its judgment upon that of T.V.A. and consider whether the Duck River project should go forward or should not go forward; the sole inquiry of this Court is whether the defendants have in fact conformed with the procedural requirements of the NEPA. The present inquiry of this Court is whether the parties really have evidence on this claim which they will offer on the trial constituting a genuine issue [3 ELR 20334] of material fact. Short v. Louisville and Nashville Railroad Company, D.C. Tenn. (1962), 213 F. Supp. 549, 550 [1].

The Court has discovered no effective administrative remedy which the plaintiffs were required to exhaust before attempting to invoke their judicial remedies. "* * * The doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act. * * *" 2 Am. Jur. (2d) 426, Administrative Law, § 595. However: "* * * In order for the exhaustion doctrine to apply there must be a remedy provided through administrative action. * * *" Ibid., 2 Am. Jur. (2d) at 442, § 606. Any such administrative remedy must be an effective one. Marsh v. County School Board of Roanoke County, Va., C.A. 4th (1962), 305 F. (2d) 94, 98 [4]. It is highly doubtful that the opportunity to participate in a public hearing provided the plaintiffs with an effective administrative remedy.

Subject to the provision of the aforementioned counteraffidavit(s), showing that a genuine issue of material fact is extant between the parties, the Court hereby DENIES the defendants' motion for a summary judgment on the claim of the plaintiffs under the NEPA. For economy of time, this action will be assigned for pretrial conference at the first convenient time without prejudice to the defendants' right to continue to rely on their motion for summary judgment on the last-discussed claim, if sufficient counteraffidavits are not forthcoming from the plaintiffs within a reasonable time.

All other matters hereby are RESERVED.

1. Maury and Marshall counties, Tennessee, lie within the Middle District of Tennessee, Columbia Division, 28 U.S.C. § 123 (b) (3); Bedford and Coffee counties, Tennessee, lie within this district and division, 28 U.S.C. § 123 (a) (4).

2. The plaintiffs abandoned their further claim under the Flood Control Act of 1936, 33 U.S.C. § 701 (a).