Tennessee Clean Water Network et al v. Tennessee Valley Authority

Filing 181

MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr on 12/30/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TENNESSEE CLEAN WATER
NETWORK and TENNESSEE SCENIC
RIVERS ASSOCIATION,
Plaintiffs,
v.
TENNESSEE VALLEY AUTHORITY,
Defendant.

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NO. 3:15-cv-00424
JUDGE CRENSHAW

MEMORANDUM OPINION
The Tennessee Clean Water Network and Tennessee Scenic Rivers Association
(“Plaintiffs”) filed a Complaint against the Tennessee Valley Authority (“TVA”) on April 14,
2015, alleging numerous violations of the Clean Water Act (“CWA”) related to TVA’s operation
of a coal-fired power plant about five miles south of the city of Gallatin, Tennessee (“Gallatin
Plant”). (Doc. No. 1.) Over a roughly one-year period beginning on June 15, 2015, TVA filed
five dispositive or partially dispositive motions. (Doc. No. 12; Doc. No. 28; Doc. No. 51; Doc.
No. 57; Doc. No. 102.) On September 9, 2016, the Court entered an Order and Memorandum
Opinion granting TVA’s motions in part and denying them in part, as well as resolving other
outstanding motions and setting a status conference for October 19, 2016. (Doc. No. 139; Doc.
No. 140.) Following the status conference, the Court entered a pretrial order setting pretrial
deadlines including a December 23, 2016, deadline for witness lists, exhibit lists, direct testimony
of expert witnesses, and stipulations. (Doc. No. 142 at 2.) On December 9, 2016—ninety-one
days after the Court’s Order on TVA’s various dispositive motions and exactly fourteen days
before the parties’ December 23, 2016, deadline—TVA filed a Motion to Reconsider (Doc. No.
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154) directed at one aspect of the Court’s earlier ruling, its denial of TVA’s Motion to dismiss
Plaintiffs’ claims for penalties under the CWA (Doc. No. 28). For the reasons discussed below,
TVA’s Motion to Reconsider will be DENIED.
MOTION TO RECONSIDER
On September 1, 2015, TVA moved the Court “to dismiss the claim for civil penalties
asserted against TVA in this case because Congress has not expressly authorized such penalties
against TVA.” (Doc. No. 28 at 1.) TVA argued that it could not be made subject to civil penalties
under the CWA in light of “Congress’s intention that, as a federal government agency and
instrumentality, TVA retains its sovereign immunity from punitive fines and damages absent an
explicit waiver.” (Doc. No. 29 at 6.) TVA relied on the Supreme Court’s holding, in United States
Department of Energy v. Ohio, 503 U.S. 607, 620–26 (1992), that the U.S. Department of Energy
was not subject to penalties under the CWA because the CWA did not clearly abrogate the
government’s preexisting sovereign immunity. TVA argued that as an “executive branch agency”
(Doc. No. 29 at 5) it was entitled to the same protection, despite the fact that it was subject to a
broad waiver of sovereign immunity pursuant to the “sue-and-be-sued” clause found in 16 U.S.C.
§ 831c(b).
The Court rejected TVA’s argument, citing Supreme Court authority for the proposition
that federally formed entities with broad sue-and-be-sued clauses, like TVA, “should generally be
held to have a capacity for ‘liability [that] is the same as that of any other business.’” (Doc. No.
139 at 24 (quoting Franchise Tax Bd. of Cal. v. U.S. Postal Serv., 467 U.S. 512, 520 (1984)). The
Court considered both TVA’s sue-and-be-sued clause as well as the CWA itself, concluding that
“[t]he CWA . . . evinces no intent to change the scope of TVA’s well-established waiver of

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sovereign immunity.” (Id. at 25.) The Court accordingly denied TVA’s request to dismiss any
claims for CWA penalties against it.
TVA now asks the Court to reconsider that decision. TVA concedes that the Federal Rules
of Civil Procedure provide no basis for such a motion, but argues that the Court should nevertheless
consider its argument pursuant to the Court’s authority, under Fed. R. Civ. P. 54(b), to revise its
interlocutory rulings “at any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.” See Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F.
App’x 949, 959 (6th Cir. 2004) (“District courts have authority both under common law and Rule
54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final
judgment.”). Plaintiffs respond that this Court has previously held that Local Rule 7.01(b) imposes
a 14- or, at most, 21-day limitation on the filing of motions to reconsider. See Simpson v. U.S.
Bank Nat’l Ass’n, No. 3:13-CV-00325, 2013 WL 3224341, at *2 (M.D. Tenn. June 25, 2013).
Plaintiffs note also that the timing of TVA’s motion placed Plaintiffs’ fourteen-day deadline to
respond on the same day as a preexisting major deadline for pretrial disclosures.
While TVA is likely correct that the Court has the formal authority revisit its earlier
decision, it gives very little procedural or prudential reason why the Court should do so.
“Traditionally, courts will find justification for reconsidering interlocutory orders when there is
(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct
a clear error or prevent manifest injustice.” Rodriguez, 89 F. App’x at 959 (citing Reich v. Hall
Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998)). TVA relies on no intervening changes in
the law or new evidence. Instead, it argues merely that “reconsideration is justified here because
the additional analysis of the issue discussed [in TVA’s Motion to Reconsider] was not previously
presented to the Court.” (Doc. No. 155 at 4.) TVA cites no authority for the proposition that a

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reconsideration is warranted merely because a party has belatedly discovered a new argument it
had previously omitted.
Even assuming TVA’s argument is one that is appropriate for a motion to reconsider, it is
difficult for the Court to fathom what would justify waiting three months to file such a motion,
then doing so in a manner that heaps the task of responding to the motion on top of the already
significant burdens of completing pretrial filings in a matter as complex as this one. Plaintiffs—
who themselves likely have a number of issues on which they wish the Court had ruled
differently—have presumably proceeded under the reasonable assumption that the Court’s prior
ruling was final. Granting TVA’s motion would prejudice Plaintiffs both by punishing that
reasonable reliance and subjecting Plaintiffs to a process whereby their opponent was granted a
second chance to argue its points while they were not. TVA’s delay, moreover, threatens more
than the fairness and efficiency of just these proceedings: invoking the Court’s authority to revise
its earlier holding at this stage would create an incentive for every future litigant to seek a second
bite of the apple at the time least opportune for its opponent.
Although TVA’s delay in filing its motion is alone sufficient to justify denial, the Court
notes that it would also be inclined to deny TVA’s argument on the merits. TVA argues that the
Court’s analysis of TVA’s liability for penalties was deficient because the Court failed to employ
the “two-step analysis” set forth by the Supreme Court in FDIC v. Meyer, 510 U.S. 471 (1994).
(Doc. No. 155 at 1). In that case, the Supreme Court made the common-sense observation that a
waiver of sovereign immunity is insufficient to create liability for the government if the underlying
substantive cause of action does not do so itself: “The first inquiry is whether there has been a
waiver of sovereign immunity. If there has been such a waiver, as in this case, the second inquiry
comes into play—that is, whether the source of substantive law upon which the claimant relies

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provides an avenue for relief.” Id. at 484 (citing United States v. Mitchell, 463 U.S. 206, 216–17
(1983)); see also U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 743 (2004).
The Court’s prior opinion did consider both the scope of TVA’s waiver of sovereign
immunity and whether the CWA intended to exempt entities such as TVA from liability for
penalties, albeit without expressly bifurcating the analysis between sovereign immunity and nonsovereign immunity concerns as TVA now proposes. (Doc. No. 139 at 24–25.) In this particular
instance, however, the difference is more cosmetic than substantive. Meyer strongly reaffirmed
the principle that a broad sue-and-be-sued clause is sufficient to subject a government-created
entity to the type of “suit or incident of suit to which private businesses are amenable as a matter
of course,” Meyer, 510 U.S. at 481, absent some specific reason that the entity should be
considered exempt. The Court’s earlier conclusion that TVA has identified nothing in the CWA
that “alters the broad, preexisting waiver to be found in the sue-and-be-sued clause” (Doc. No. 139
at 25) applies with equal force here because TVA has identified nothing in the CWA that would
limit TVA’s substantive liability for penalties.
TVA attempts to bolster its argument by citation to a series of cases limiting TVA’s liability
for conventional tort claims in light of the discretionary or governmental character of its
actions. See, e.g., Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 645 (6th Cir. 2015), cert.
denied, 136 S. Ct. 980 (2016); Edwards v. TVA, 255 F.3d 318, 324 (6th Cir. 2001); Queen v.
TVA, 689 F.2d 80, 86 (6th Cir. 1982). In so doing, TVA becomes the party overlooking the Meyer
framework. Meyer instructs the court to look first to the initial waiver of sovereign immunity, and
then to “the source of substantive law upon which the claimant relies.” 510 U.S. at 384. Plaintiffs
do not rely on conventional tort principles, but rather the strict liability regime of the CWA. To

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defeat liability under the second Meyer step, therefore, TVA must find support for its position in
the CWA itself. It has not.
CONCLUSION
For the foregoing reasons, TVA’s Motion to Reconsider the Court’s Interlocutory Ruling
on the Issue of Punitive Civil Penalties for Alleged Past Violations of the Clean Water Act will be
DENIED.
An appropriate order will issue.

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WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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