Environmental Defense Fund v. Tennessee Valley Authority

No. 1130 (E.D. Tenn. March 21, 1973)

The court reconsiders its previous interpretation and holds that NEPA's requirements are not merely procedural, but also necessitate a cost-benefit balancing which gives ample weight to environmental values. The court declines to substitute its judgment for that of TVA as to the necessity of the Duck River dam project. For the earlier opinion of the court, see 3 ELR 20331.

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 20579]

Neese, J.

MEMORANDUM OPINION AND ORDER

This is a civil action to enjoin the defendant Tennessee Valley Authority and its chairman Mr. Aubrey J. Wagner from constructing the Duck River project, which is comprised of the Columbia dam reservoir in Maury and Marshall Counties, Tennessee and the Normandy dam and reservoir in Bedford and Coffee Counties, Tennessee. The plaintiffs have now filed affidavits, demonstrating that there are genuine issues of material fact extant between the parties, see memorandum opinion and order of December 11, 1972 herein, rendering summary judgment improper herein on the plaintiffs' claim under the National Environmental Policy Act of 1969.

The plaintiffs filed a motion to amend their complaint, Rule 15 (a), Federal Rules of Civil Procedure. The defendants' motion for a summary judgement is not regarded as a responsive pleading within the intent of Rule 15(a), supra. Ohio Casualty Ins. Co. v. Farmers Bank of Clay, Ky., C.A. 6th (1949). 178 F.2d 570, 573 [3-5]. The plaintiffs are entitled to amend their pleading once as a matter of course at any time before a responsive pleading is served, Rule 15 (a), supra, and the leave requested, while unnecessary, hereby is GRANTED.

The plaintiffs moved also for the Court to reconsider its previously stated interpretation, to the effect that it is not for this Court at any juncture to superimpose its judgment upon that of the Tennessee Valley Authority and consider whether the Duck River project should, or should not, go forward, the sole inquiry of this Court being whether the defendants have in fact conformed with the procedural requirements of the National Environmental Policy Act of 1969. See memorandum opinion and order of December 11, 1972 herein. This Court announced such an interpretation on the authority of Upper Pecos Association v. Stans, C.A. 10th (1971), 452 F.2d 1233, 1236 [3].

In the meantime a conflict among the circuit courts of appeal has developed on this point. This Court is not advised of any expression on this issue of law from the Sixth Circuit and must decide whether to adhere to the rule established in the Tenth Circuit or to reconsider and follow the one established in the Second, Fourth, Eighth and District of Columbia Circuits. This Court reconsiders and adopts the latter course.

Accordingly, this Court will

* * *

"* * * first determine if the agency reached its decision after a full, good faith consideration of environmental factors. The Court must then determine, according to the standards set forth in §§ 101 (b) and 102 (1) of the [National Environmental Policy] Act, whether 'the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.' * * *"

Environmental Defense Fund v. Corps of Eng., U.S. Army, C.A. 8th (1972), 470 F.2d 289, 300 [13]. Albeit, this Court will limit the standard of its review and not substitute its judgment for that of the Tennessee Valley Authority. Idem.