Bullwinkel v. United States Department of Energy et al

Filing 159

ORDER granting 76 Motion for Summary Judgment of Defendants Tennessee Valley Authority and Kilgore. Signed by Judge J. Daniel Breen on 8/13/12.(Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

GARY BULLWINKEL,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
ENERGY, et al.,
Defendants.

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No. 11-1082-JDB-egb

ORDER GRANTING
THE MOTION FOR SUMMARY JUDGMENT FILED BY THE TVA DEFENDANTS

Before the Court is the motion for summary judgment filed by
Defendant Tennessee Valley Authority (“TVA”) and its president,
Thomas Kilgore (collectively, the “TVA Defendants”). (Docket Entry
(“D.E.”) 76.)
GRANTED.

For the reasons stated herein, the motion is

Count 1 of the amended complaint is DISMISSED, Count 12

of the amended complaint is DISMISSED as to the TVA Defendants, and
the TVA Defendants are terminated as parties to this action.
On April 8, 2011, the Plaintiff, Gary Bullwinkel, a resident
of Somerville, Tennessee, filed a pro se complaint pursuant to,
inter alia, the Administrative Procedure Act, 5 U.S.C. §§ 701-05;
the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321,
et seq.; and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§
2000d, et seq.

(D.E. 1.)

Plaintiff filed an amended complaint as

of right on April 19, 2011.

(D.E. 5.)

On September 27, 2011, the

TVA Defendants filed a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56, supported by a statement of
undisputed facts, a legal memorandum, various documents, and the
declarations of Jon M. Loney, Charles P. Nicholson and Billy W.
Adams, Jr. (D.E. 76-81.) On October 18, 2011, Plaintiff submitted
his pleadings, consisting of a response to the TVA Defendants’
statement of material facts and a legal memorandum.
The TVA Defendants filed a reply on November 3, 2011.

(D.E. 85.)
(D.E. 88.)

Rule 56 provides in pertinent part that “[t]he court shall
grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a); Gecewicz v.

Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir. 2012).
"In analyzing a motion for summary judgment, [courts are to]
construe all evidence in the light most favorable to the non-moving
party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

"The central issue

is whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."

Dugle ex rel. Dugle v.

Norfolk S. Ry. Co., 683 F.3d 263, 267 (6th Cir. 2012) (quoting
Anderson, 477 U.S. at 251-52, 106 S. Ct. 2505) (internal quotation
marks omitted), reh'g & reh'g en banc denied (Aug. 2, 2012).
A party who does not have access to evidence necessary to
respond to a summary judgment motion must file an affidavit under
Federal Rule of Civil Procedure 56(d).
2

See Abercrombie & Fitch

Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th
Cir. 2002).1

Judicial review of NEPA decisions proceeds under the

APA, Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 964
(6th Cir. 2009); see also Sierra Club v. Slater, 120 F.3d 623, 63031 (6th Cir. 1997) (“NEPA does not authorize a private right of
action. . . .

We have long recognized that federal courts have

jurisdiction over NEPA challenges pursuant to the APA and so have
many other courts[.]”), reh'g & suggestion for reh'g en banc denied
(Oct. 15, 1997), and review of APA decisions is based on the
administrative record, 5 U.S.C. § 706; Slater, 120 F.3d at 638. In
this case, Plaintiff did not file a Rule 56(d) affidavit, and his
motion to supplement the record (D.E. 151) was filed months after
briefing on the instant motion was complete.2

Therefore, the Court

will address the merits of the TVA Defendants’ motion.
In his amended complaint, Plaintiff sued the TVA because of
its certification of an industrial megasite in Haywood County,
Tennessee (the “West Tennessee Megasite” or "Megasite") in 2006.

1

Abercrombie & Fitch refers to subsection (f) of Rule 56. However,
the Rule was amended in 2010 and subsection (f) was moved to subsection (d). See
Siggers v. Campbell, 652 F.3d 681, 695 n.8 (6th Cir. 2011). According to the
Advisory Committee's notes, "[s]ubdivision (d) carries forward without
substantial change the provisions of former subdivision (f)." Fed. R. Civ. P.
56 advisory committee's note (2010 Amendments).
2

In their response to Plaintiff’s motion to supplement the
administrative record, the TVA Defendants represented that they provided
Plaintiff with the additional information he sought, to the extent it existed.
(D.E. 154 at 4.) That information was provided on October 27, 2011. (D.E. 1542.)
Plaintiff did not seek leave to supplement his response to the TVA
Defendants’ summary judgment motion upon receipt of that information.

3

(D.E. 5 ¶¶ 56-64.)3

Count 1 asserted a claim against the TVA under

NEPA and the APA arising from its use of categorical exclusions in
its megasite certification program in general and, specifically, on
the West Tennessee Megasite.

(Id. ¶¶ 92-93.)

The prayer for

relief asked the Court, inter alia, to
3.
Order Defendant TVA [to] cease its TVA Megasite
Certification and Marketing program until a comprehensive
NEPA process as required by [Council of Environmental
Quality ("CQ")] regulations is conducted.
4.
Order Defendant TVA [to] withdraw the West
Tennessee Megasite Certification and cease its marketing
of the West Tennessee Megasite until the comprehensive
NEPA process as required by USDA-RUS and CEQ regulations
is conducted.
(Id. ¶¶ 3-4.)
Bullwinkel also sued the TVA because of its involvement in the
Welcome Center and Solar Farm.4
produced by the Solar Farm.

TVA plans to purchase the power

(Id. ¶¶ 16, 105, 107.)

Although the

amended complaint is less than clear, Count 12 appeared to assert
a claim against the TVA Defendants arising from their failure to
identify and coordinate the Solar Farm and Welcome Center and its
associated transmission lines as a connected action with the West
Tennessee Megasite.

(Id. ¶¶ 139-41.)

The Supreme Court has summarized the operation of NEPA as
follows:
Signed into law on January 1, 1970, NEPA establishes a
national policy to encourage productive and enjoyable

3
In the administrative record filed by the TVA Defendants, that site
is sometimes referred to as the Haywood County Site or the Stanton Site.
4

That project has been described in previous orders.
at 3-7; D.E. 137 at 4-7.)

4

(See D.E. 136

harmony between man and his environment, and was intended
to reduce or eliminate environmental damage and to
promote the understanding of the ecological systems and
natural resources important to the United States. NEPA
itself does not mandate particular results in order to
accomplish these ends.
Rather, NEPA imposes only
procedural requirements on federal agencies with a
particular focus on requiring agencies to undertake
analyses of the environmental impact of their proposals
and actions. At the heart of NEPA is a requirement that
federal agencies
include in every recommendation or report on
proposals for legislation and other major Federal
actions significantly affecting the quality of the
human environment, a detailed statement by the
responsible official on —
(i) the
action,

environmental

impact

of

the

proposed

(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses
of man’s environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments
of resources which would be involved in the
proposed action should it be implemented.
This detailed statement is called an Environmental Impact
Statement (EIS). The [CEQ], established by NEPA with
authority to issue regulations interpreting it, has
promulgated regulations to guide federal agencies in
determining what actions are subject to that statutory
requirement.
The CEQ regulations allow an agency to
prepare a more limited document, an Environmental
Assessment (EA), if the agency’s proposed action neither
is categorically excluded from the requirement to produce
an EIS nor would clearly require the production of an
EIS.
The EA is to be a concise public document that
briefly provides sufficient evidence and analysis for
determining whether to prepare an EIS. If, pursuant to
the EA, an agency determines that an EIS is not required
under applicable CEQ regulations, it must issue a finding
of no significant impact (FONSI), which briefly presents

5

the reasons why the proposed agency action will not have
a significant impact on the human environment.
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756-58, 124 S. Ct.
2204, 2209-10, 159 L. Ed. 2d 60 (2004) (internal citations,
alterations & quotation marks omitted).
TVA is guided in its NEPA compliance by the regulations
promulgated by the CEQ, 40 C.F.R. §§ 1500.1-1508.28 (2010), and by
its

own

NEPA

approval

of

procedures
the

CEQ,

(“TVA
TVA

NEPA

enacted

Procedures”).5
twenty-eight

With

the

categorical

exclusions for “[c]ategories of actions [that] do not normally
have, either individually or cumulatively, a significant impact on
the quality of the human environment and require neither the
preparation of an EA nor an EIS.”

(TVA NEPA Procedures § 5.2, TVA

AR 27; see also Decl. of Jon M. Loney dated Sept. 14, 2011 (“Loney
Decl.”

¶

4,

“[t]echnical
organizations”

D.E.
and

77.)
planning

(TVA

NEPA

The

categorical

assistance
Procedures

to
§

exclusions
State

5.2.2,

include

and

TVA

AR

local
27),

“[p]rocurement activities” (id. § 5.2.4, TVA AR 27), and “[a]ny
action which does not have a primary impact on the physical
environment” (id. § 5.2.27, TVA AR 28).6

“By excluding from formal

5
A copy of TVA’s Procedures for Compliance with NEPA has been
submitted as an exhibit to the declaration of Bruce L. Yeager dated July 18,
2011. (D.E. 37-4.) TVA’s Procedures are at TVA AR 25-39. (D.E. 37-5.)
6

TVA’s NEPA Procedures also provide that

[t]he office proposing to initiate an action shall determine, in
consultation with the Environmental Quality Staff as appropriate,
whether or not the proposed action is categorically excluded. An
action which would normally qualify as a categorical exclusion shall
not be so classified if:
(1) the proposed action could have a
potentially significant impact on a threatened or endangered
(continued...)

6

review actions which have no or only insignificant effects on the
health of the environment, the use of categorical exclusions allows
TVA to focus its attention and resources under NEPA on actions
which arguably have a greater impact on the environment, and helps
prevent unnecessary delays of TVA actions.”

(Loney Decl. ¶ 5.)

The following facts are pertinent to this motion:
1.
Part of TVA’s mission under the TVA Act of
1933, as amended, 16 U.S.C. §§ 831-831ee (2006 & Supp.
III 2009), is to foster the development of the Valley
Region.7
2.
TVA
works
with
local
communities
and
governments to attract industry to encourage employment
and economic growth.
(See 16 U.S.C. §§ 831u, 831v
(2006); Declaration of Billy L. Adams, Jr., dated Sept.
22, 2011 (“Adams Decl.”), ¶ 2, D.E. 79.)
3.
The megasite certification program was one of
TVA’s efforts to help local communities attract industry.
(Adams Decl. ¶ 3.)8

6

(...continued)
species, wetland or floodplain, cultural or
important farmland, or other environmentally
or (2) substantial controversy over the
environmental impacts associated with the
developed or is likely to develop.

historical resource,
significant resource;
significance of the
proposed action has

(TVA NEPA Procedures § 5.2, TVA AR 27.)
7
Unless otherwise noted, Plaintiff has not disputed the proposed
factual findings submitted by the TVA Defendants.
8
Plaintiff disputes this statement, although his point is unclear.
Plaintiff cites a paragraph titled “Objective” in the contract between the TVA
and its site-selection contractor to the effect that “[t]his, in turn, will
increase the TVA region’s competitiveness for future assembly plant locations.”
(Adams Decl., Ex. 1, D.E. 79-1 at 2.) Using that language, Plaintiff argues that
the statement in the text is incomplete because “TVA’s goals for its ‘industrial
certification program’ exceeded just the local communities’ interests in both
geography and desire to provide a competitive edge over other development
entities outside the TVA region.” (D.E. 85 at 3.) The record citation on which
Plaintiff relies does not appear to undercut the TVA Defendants’ proposed finding
that the megasite certification program was intended to help local communities
attract industry.
Plaintiff does not appear to contend that the TVA forced
industrial development on communities over the objections of local governments.

7

4.
In March 2004, TVA, through its Economic
Development organization, entered into a contract with
McCallum Sweeney Consulting (“MSC”), a well-regarded site
selection consulting firm. (Adams Decl. ¶ 3.)
5.
Under that contract, MSC, with the input of
TVA, was responsible for identifying and certifying socalled industrial “megasites,” sites which would have a
minimum of 700 contiguous and developable acres. While
the program was originally focused on automotive plants,
eventually other non-automotive clients became interested
in, and eventually located on, the certified sites.
(Adams Decl. ¶¶ 3, 5.)9
6.
MSC was responsible for developing the criteria
for certifying megasites, reviewing the applications for
certification, and deciding which sites, if any, to
certify. (Adams Decl. ¶ 3.) TVA was responsible for
identifying cities that would receive initial [Requests
for Information ("RFIs")], using the criteria developed
by MSC. (D.E. 79-1 at 3; D.E. 81 at 24.)10

9

The Court has revised the TVA Defendants’ proposed factual findings
5 and 6 to reflect Plaintiff’s objection that the TVA was responsible for
selecting communities that received RFIs using criteria developed by the TVA.
(See D.E. 79-1 at 3; D.E. 81 at 24.)
10
As previously noted, the Court has revised this proposed finding to
more accurately state TVA’s role.
Plaintiff’s other objections are not
persuasive and are not material for the reasons stated infra. He is correct that
“[t]he TVA has defined mega sites as properties that contain at least 700
contiguous and developable acres.” (D.E. 79-1 at 2.) The documents reflect that
TVA hired MSC to certify sites that it believed would be most attractive to
companies seeking to open manufacturing facilities. That TVA believed each such
site needed at least 700 contiguous acres does not alter that conclusion. It
also does not appear that TVA was responsible for defining “the general site
information a certified site will have available.” (D.E. 85 at 4.) Plaintiff
has taken out of context a portion of one sentence in the “Objective” section of
the March 10, 2004 contract between TVA and MSC, which states as follows:

Certified sites receive a comprehensive review and have available
current site information such as water, sewer, electrical[,] gas,
and telecommunications availability and capacity, environmental
investigation, transportation accessibility and more. In general,
certified sites are ready for constructions within six (6) months or
less after being chosen for development.
Most important,
certification will provide added certainty that a site will most
efficiently meet a particular project’s development objectives.
This, in turn, will increase the TVA region’s competitiveness for
future assembly plant locations.
(D.E. 79-1 at 2.)
(continued...)

8

9.
TVA’s NEPA compliance staff reviewed the MSC
contract for any issues under NEPA and discussed the
contract with Economic Development staff. (Loney Decl.
¶ 2.)
10. Loney, the TVA Senior Manager for NEPA Policy
at the time, reviewed the MSC contract and discussed it
with his staff. (Loney Decl. ¶ 6.) He concluded that
the contract was categorically excluded from NEPA review.
(Id.) The only product of the contract was a megasite
certification with no guarantee that development would
actually occur on any site, no commitment from TVA for
any future action, and no impact on the physical
environment due solely to the certification.
(Loney
Decl. ¶¶ 3, 6.)11
11. Based on the information obtained and their
assessment of NEPA and TVA’s implementing procedures, Mr.
Loney concluded that formal NEPA review of the MSC
contract — either an environmental assessment (EA) or an
environmental impact statement (EIS) — was not required
under TVA’s NEPA procedures. (Loney Decl. ¶ 6.)12

10

(...continued)
The Court has not adopted TVA’s proposed findings 7 and 8 because
those proposed factual findings are not material for the reasons stated infra.
11

The Court has revised this proposed finding to make clear that Loney
made the decision on the categorical exclusions with input from his staff. The
Court also revised the second sentence of the proposed finding to eliminate the
words “from MSC,” because certified sites are listed on the TVA websites as TVA
megasites.
Plaintiff’s additional objections are not persuasive. (See D.E. 85
at 6-7.) That the megasites were to develop site layouts and cost estimates for
marketing purposes and that TVA declared its intention to market the megasites
are relevant only insofar as those activities took the contract outside the
categorical exclusions on which Loney relied. There is no dispute that it was
hoped that the megasites would attract industry. See Factual Findings (“FF”) 13.) The legal significance of that purpose will be addressed infra.
12
Plaintiff has objected on the basis, inter alia, that this proposed
finding is conclusory. (D.E. 85 at 7.) The Court has adopted this proposed
finding only to the extent that it reflects what Loney concluded.
Whether
Loney’s conclusion is legally correct will be addressed infra.
Plaintiff’s
objection that the “information obtained” by Loney has not been submitted will
not be considered because Plaintiff has not provided a Rule 56(d) affidavit.
Contrary to Plaintiff’s suggestion (see, e.g. D.E. 85 at 8), Fed. R. Civ. P.
56(e)(1) does not require a party to provide every document supporting the
assertions in a factual affidavit.
The statements in Loney’s affidavit are
themselves evidence.

9

12. Loney concluded that the MSC contract was
covered by several categorical exclusions — 5.2.2
(technical and planning assistance to State and local
organizations); 5.2.4 (procurement activities); and
5.2.27 (any action which does not have a primary impact
on the physical environment. (Loney Decl. ¶ 6.)13
13. Haywood County was one of approximately 25
applicants for megasite certification in 2004, proposing
a site of approximately 1700 acres near Stanton,
Tennessee. (Adams Decl. ¶¶ 8-10.)14
14. After an MSC review and critique, Haywood
County revised and submitted the application in final
form to MSC in February 2006. (Adams Decl. ¶ 9.)15
15. MSC certified Haywood County’s Stanton site as
an industrial megasite in early July 2006. (Adams Decl.
¶ 10.)16
16. Since the certification, TVA has assisted in
marketing the Megasite by making information available
about the Megasite on the TVA website which lists
available industrial and commercial property in the
Valley region, www.tvasites.com, and on a website which
contains information on all the MSC-certified megasites,
www.tvaed.com/megasites.htm. (Adams Decl. ¶¶ 11, 12.)17
13

The Court has revised this proposed finding to make clear that it
represents Loney’s conclusions. Plaintiff’s objection (D.E. 85 at 8) appears to
be legal in nature and will be addressed infra.
14

Plaintiff’s evidentiary objection has been addressed supra.
Moreover, as the TVA Defendants have pointed out, the documents Plaintiff seeks
are irrelevant.
The relevant issue in Count 1 is whether the MSC contract
required an EA or an EIS, not whether the proposed West Tennessee Megasite met
the criteria for certification developed by MSC in conjunction with TVA. (D.E.
88 at 8.)
15

Plaintiff’s objection is not well taken for the reasons stated supra.

16

Plaintiff’s objection is not well taken for the reasons stated supra.
Plaintiff does not appear to dispute that the West Tennessee Megasite was
certified in July 2006.
17

Plaintiff notes that Paragraph 12 of the Adams declaration states,
in pertinent part, that “TVA has expended considerable resources and staff time
on this marketing effort since the Megasite was certified in July 2006.” (D.E.
85 at 9.) That statement supports the proposed factual finding.
Plaintiff’s remaining objections are not well taken. His evidentiary
objection has been addressed supra. Plaintiff also states that “[t]his disputed
(continued...)

10

17. In the opinion of Mr. Loney and of Charles P.
Nicholson, a TVA Manager for NEPA Compliance since 2009,
these marketing efforts by themselves are not “major
Federal actions” within the scope of NEPA because there
is no impact on the physical environment. (Loney Decl.
¶ 9; Declaration of Charles P. Nicholson, dated Sept. 20,
2011 (“Nicholson Decl.”), ¶ 4, D.E. 78.)18
18. The Megasite is currently undeveloped, and
there are no specific plans for any future development.
(Declaration of Ryan Gooch, dated July 18, 2011 (“Gooch
Decl.”), ¶ 9, at D.E. 46-1; Adams Decl. ¶ 13.)
The
magnitude of potential developmental impacts [was] not
known during the certification process. Neither MSC nor
TVA could predict the actual size, scope, or design of
potential industrial operations until such time as this
information was, or would be, revealed during an actual
project. (Adams Decl. ¶ 13.)19
19. If TVA is proposed to be involved through
funding or required approvals in any future development
of the Megasite, such proposed action will be subject to
the appropriate level of NEPA review. (Nicholson Decl.
¶¶ 2, 5.)20
20. Bullwinkel has known about the proposed
Megasite since at least July 22, 2005, when he, his wife,
and several other individuals filed suit in the Chancery
Court of Fayette County, Tennessee, against Fayette and
Haywood County officials under Tennessee law over their
actions with respect to the Megasite application.
(Compl. for Mandamus, Gary Bullwinkel, et al. v. Rhea

17

(...continued)
fact also does not assert that Bill Adams, as a TVA employee and specialist in
industrial siting plays an active role in coordinated activities to market the
megasites in contradiction to the fact that he does play an active role in these
activities.” (Id.) Plaintiff’s point is unclear. The first paragraph of the
Adams declaration states that Adams has personally marketed the megasites.
18

The Court has revised this proposed finding to make clear that it
reflects the conclusions of Loney and Nicholson. Plaintiff’s legal objections
will be addressed infra.
19

Plaintiff’s evidentiary objection was addressed supra. His point
about improper “segmentation” is a legal argument that will be addressed infra.
20
The Court notes that NEPA review may also be required based on the
involvement of some other federal agency. Plaintiff’s claim that TVA’s marketing
activities require NEPA approval is a legal argument that will be addressed
infra.

11

Taylor, et al., No. 13973 (Fayette Cnty. Chancery Ct.),
D.E. 76-3.)21
21. In mid-July 2006, shortly after MSC announced
that it had certified the Haywood County site as a
megasite, Bullwinkel protested the certification to a
member of the TVA Board of Directors and, within a few
days, to a senior TVA manager. (Loney Decl. ¶ 7.)22
22. TVA will be purchasing the output of the West
Tennessee Solar Farm for use on TVA’s power system under
one agreement and TVA will be helping support the Solar
Farm’s educational mission under a separate agreement.
(Declaration of Jason K. Haile, dated July 13, 2011
(“Haile Decl.”), ¶¶ 2-3, D.E. 37-2; Declaration of Alan
Raymond, dated July 15, 2011 (“Raymond Decl.”), ¶ 2, D.E.
37-3.)
23. TVA is not involved in the construction of
Solar Farm and is not responsible for providing
interconnection facilities necessary to transmit
Solar Farm’s output of electric power to the
transmission system. (Haile Decl. ¶¶ 3-4)23

the
the
the
TVA

21
Plaintiff agrees that the fact is undisputed but questions whether
it is material.
(D.E. 85 at 11.)
In an order issued on May 25, 2006,
Plaintiff’s suit was dismissed for want of standing. (Order, Gary Bullwinkel,
et al. v. Rhea Taylor, et al., No. 13973 (Fayette Cnty. Chancery Ct.), D.E. 76-3
at 33-35.) The court reasoned that “it is mere speculation that (1) the megasite
will be approved by TVA and (2) that Haywood County will be successful in
marketing the megasite. Then and only then will the Plaintiffs’ proximity to the
megasite become an issue that might develop into a threat to their property.”
(Id. at 3, D.E. 76-3 at 35.)
22
Plaintiff says he disputes this proposed finding “as to context and
timing.” (D.E. 85 at 11.) He states that he and other landowners appeared
before the TVA Board of Directors in June 2006 (id. at 11-12), which would be
consistent with the mid-2006 date in the proposed finding. Plaintiff does not
address the cited portion of Paragraph 7 of the Loney declaration, which states
that “Gary Bullwinkel raised concerns about [the decision to certify the
megasite] with me, a member of the TVA Board of Directors, and a senior TVA
manager.”
23

Plaintiff asserts that TVA, through its Purchase Power Agreement “and
monopolistic control of local transmission substations, gave necessary agreement
for the Solar Farm to proceed and fulfill its goal of providing power to the
local grid.” (D.E. 85 at 12.) He has not cited any record facts in support of
his point.

12

24. TVA’s support for the educational program will
not involve any ground-disturbing activities. (Raymond
Decl. ¶ 3.)24
25. Due to TVA’s involvement with the Solar Farm,
TVA reviewed and adopted the Department of Energy’s
environmental assessment and issued its own finding of no
significant impact, concluding that TVA’s actions “will
not have a significant impact on the quality of the
environment.” (TVA AR 1, D.E. 37-5 at 1; see also D.E.
37-5 at 5.)25
26. TVA’s review of the DOE EA is documented at TVA
AR 6-24, D.E. 37-5 at 6-24.
27. The TVA staff discussed alternatives to the
Solar Farm and assessments of impacts from the Solar
Farm, noting the review process filed by the Department
of Energy (“DOE”) and DOE’s mitigation action plan,
adherence to which by the State of Tennessee was made a
condition of TVA’s FONSI. (TVA AR 3-4, ECF No. 37-5 at
3-4.)26
28.

The TVA concluded:

TVA has independently reviewed the DOE EA, the
underlying report and public comments, and has
found the DOE document to be adequate and fully
encompassing of the environmental effects and
potential consequences of TVA’s proposed actions.
TVA is therefore adopting the 2011 DOE EA. Based
on the EA, TVA concludes that entering into the
PPA, and providing funding for the educational
component of the proposed visitor’s center would
not
be
major
federal
actions
significantly
affecting
the
environment.
Accordingly,
preparation of an environmental impact statement is
not required.

24
Plaintiff notes that the purpose of the Welcome Center is
educational. (D.E. 85 at 12.) The amended complaint does not assert any claim
based on TVA’s commitment to fund educational programs at the Solar Farm and
Welcome Center.
25

Plaintiff does not dispute that TVA took these actions, but he
contends that TVA did not comply with NEPA and the APA. (D.E. 85 at 13.) The
legal issues will be addressed infra.
26

Plaintiff’s objections are not persuasive. (See D.E. 85 at 13.) The
purpose of this factual finding is to state what TVA and its staff did. The
legal adequacy of those actions will be discussed infra.

13

(TVA AR 4-5.)27
29. If the Solar Farm does not go into operation,
five megawatts of solar generating capacity will not be
available to the TVA system. (See Declaration of David
B. Dehart, dated July 14, 2011 (“Dehart Decl.”), ¶ 3,
D.E. 37-1.) This would represent a substantial reduction
in the projected solar generating capacity available to
TVA from Tennessee sources. (Dehart Decl. ¶¶ 2, 4.)28
30. The Solar Farm is not in any way dependent on
development of the Megasite, and will confer its expected
benefits regardless of whether the Megasite is developed.
(Gooch Decl. ¶ 9, D.E. 46-1; Declaration of Paula
Flowers, dated July 18, 2011 (“Flowers Decl.”), ¶ 14.)29
32. The MSC Contract stated that “[t]he [TVA] is
implementing an industrial site certification program for
properties located within the TVA’s service area.” (D.E.
79-1 at 2.)30
33. The MSC contract stated that “[t]he TVA will
catalogue and market the certified mega sites directly to
automotive companies or to site selection firms which
assist such companies in site and location assessments.”
(D.E. 79-1 at 2.)
34. The MSC contract stated that, “[w]hen any
payment is made under this contract, title to all
material acquired and work performed under this contract,
27
Plaintiff’s objection to this proposed finding as conclusory (D.E.
85 at 14) is not well taken because the purpose of the finding is to state what
the TVA concluded. The legal effect of that conclusion will be addressed infra.
28
Plaintiff disputes this proposed finding on the basis that the solar
panels purchased by the University of Tennessee could be placed in other
locations and could still provide power to the TVA grid under some circumstances.
(D.E. 85 at 14.) That objection appears to be legally irrelevant.
29

Plaintiff’s objection (D.E. 85 at 14-15) appears to present a legal
argument that will be addressed infra. The land for the Solar Farm was not part
of the Megasite. (Flowers Decl. ¶ 16.)
The Court declines to adopt the TVA Defendants’ proposed factual
finding number 31, that “[n]o prospective development of the megasite is
dependent on the construction of the Solar Farm.”
(D.E. 76-1 at 5.)
As
Plaintiff has pointed out (D.E. 85 at 15), development of the Megasite has not
yet occurred and, therefore, it is not possible to know whether any eventual
development will depend on construction of the Solar Farm.
30

The remaining factual findings are taken from Plaintiff’s proposed
undisputed facts. (D.E. 85-1 at 5.)

14

shall vest in TVA, and title to all like property
thereafter acquired or produced by Contractor and
properly chargeable to the contract under generally
accepted accounting principles shall vest in TVA. This
provision is intended to vest in TVA full, absolute title
and not merely a security interest.” (D.E. 79-1 at 5.)
34.

The MSC contract provided that

[t]he TVA shall be responsible for the following:
A.

B.
C.
D.
E.
F.

Development and distribution of the solicitation
documents for site submissions (“Site RFI”) based
upon [MSC’s] data requirements for the site
analysis process;
Determination of which communities receive the Site
RFI;
Establishing deadlines to receive the Site RFI;
Collection of site RFIs from communities. . . .
Uniform packaging of Site RFIs upon receipt (for
the Contractor’s ease of use);
Determination and implementation of marketing
strategy to promote certified areas[.]

(D.E. 79-1 at 3.)31
The TVA Defendants first argue that Plaintiff’s claims about
the megasite program and certification are moot.
8.)

This

argument

challenges

the

Court’s

(D.E. 76-2 at 7subject-matter

jurisdiction over the first claim in the amended complaint.32

31

The Court has omitted Plaintiff’s proposed factual finding 5 because
it pertains only to certified sites in Columbus, Mississippi and Hopkinsville,
Kentucky. (See D.E. 81 at 22.) The Court has omitted Plaintiff’s proposed
factual finding 6 because it pertains only to Round II of the megasite
certification program. (See id. at 86.) Haywood County’s Stanton site applied
for megasite certification in 2004.
(FF 13; see also D.E. 81 at 23-24
(describing the additional work required before the Stanton Site can be
certified).)
32

Ordinarily, a challenge to the Court’s subject-matter jurisdiction
is brought under Federal Rule of Civil Procedure 12(b)(1).
A Rule 12(b)(1) motion can either attack the claim of jurisdiction
on its face, in which case all allegations of the plaintiff must be
considered as true, or it can attack the factual basis for
jurisdiction, in which case the trial court must weigh the evidence
and the plaintiff bears the burden of proving that jurisdiction
(continued...)

15

“Article III of the Constitution limits the judicial power of the
United States to the resolution of ‘Cases’ and ‘Controversies[.]’”
Hein v. Freedom from Religion Found., 551 U.S. 587, 597, 127 S. Ct.
2553, 2562, 168 L. Ed. 2d 424 (2007).

This is “a cradle-to-grave

requirement that must be met in order to file a claim in federal
court and that must be met in order to keep it there.”

Fialka-

Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir.
2011).

“[A] federal court has no authority to give opinions upon

moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the matter in issue in the case
before it.”

Church of Scientology of Cal. v. United States, 506

U.S. 9, 12, 113 S. Ct. 447, 449, 121 L. Ed. 2d 313 (1992) (internal
quotation marks omitted); see also Coalition for Gov’t Procurement
v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004)
(“Under the ‘case or controversy’ requirement, we lack authority to
issue

a

decision

litigants.”).

that

does

not

affect

the

rights

of

the

The mootness question turns on whether a federal

court can afford a litigant any “effectual relief.”

Coalition for

Gov’t Procurement, 365 F.3d at 458.
A NEPA claim is moot when the proposed action has been
completed and no effective remedy is available. See Sierra Club v.

32

(...continued)
exists.
DLX, Inc. v. Ky., 381 F.3d 511, 516 (6th Cir. 2004), cert. denied, 544 U.S. 961,
125 S. Ct. 1733, 161 L. Ed. 2d 603 (2005). For reasons that are not clear, the
TVA Defendants chose to bring their motion under Rule 56, which requires the
Court to draw all reasonable inferences in favor of the non-moving party. See
Gecewicz, 683 F.3d at 321.

16

United States Dep’t of Agric. Rural Utils. Serv., No. 99-5515, 2000
WL 1679473, at *2-4 (6th Cir. Nov. 2, 2000) (per curiam); see also
City of Romulus v. Wayne Cnty., 634 F.2d 347, 348 (6th Cir. 1980)
(appeal of dissolution of injunction moot when challenged runway
completed).
To the extent Bullwinkel seeks to enjoin TVA’s megasite
certification program, that claim is moot. TVA’s contract with MSC
expired by its terms in 2006.

(Adams Decl. ¶ 6.)

identified no ongoing effort to certify new megasites.

He has
There is,

therefore, no relief that can be afforded Plaintiff on this aspect
of his claim.
The record is insufficient to permit the Court to assess
whether Plaintiff’s request that the TVA withdraw its certification
of the West Tennessee Megasite is moot.

The TVA Defendants

emphasize that the certification decision was made by MSC and not
by TVA, and they note that neither MSC nor Haywood County is a
party to this action.
persuasive.

(D.E. 76-2 at 8.)

That argument is not

MSC made its certification decisions on behalf of the

TVA, and it would appear that its decisions become the property of
TVA upon completion of the contract.

(See FF 34.)

There is no

evidence about the agreement between TVA and Haywood County, if
any, about marketing the Megasite, including the ability of Haywood
County to represent to manufacturers that the Megasite is TVA
certified.
To the extent Plaintiff seeks to enjoin TVA’s marketing of
megasites that have already been certified, his claim is not moot.
17

The West Tennessee Megasite remains on the market, and the TVA’s
efforts to market that site are ongoing.
Decl. ¶ 12.)

(See FF 16, 18; Adams

Should he prevail on the first claim of his amended

complaint, the Court could enjoin the TVA Defendants from marketing
the Megasite.
Therefore, this aspect of the TVA Defendants’ motion for
summary judgment is GRANTED IN PART and DENIED IN PART.
DISMISSED

insofar

as

it

seeks

to

enjoin

the

Count 1 is

TVA’s

megasite

certification program.
The TVA Defendants also argue that Plaintiff’s claim for
equitable relief against the TVA Megasite is barred by laches.
(D.E. 76-2 at 8 n.4.)
Laches is the negligent and unintentional failure to
protect one’s rights. Laches consists of two elements:
(1) unreasonable delay in asserting one’s rights; and (2)
a resulting prejudice to the defending party. . . . As
laches is an affirmative defense, the burden of
establishing both of these elements is on the party
raising the defense[.]
E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436, 439 (6th Cir.
2006) (internal citations & quotation marks omitted), reh’g & reh’g
en banc denied (Feb. 27, 2007).

The doctrine of laches is

"strongly disfavored" in environmental suits.

Save the Peaks

Coalition v. United States Forest Serv., 669 F.3d 1025, 1031 (9th
Cir. 2012).
The

TVA

Defendants

have

not

satisfied

their

burden

of

demonstrating that Count 1 of the amended complaint is barred by
laches.

Although Plaintiff knew about the certification of the

West Tennessee Megasite in 2006 (FF 20-21), more than five years
18

before he filed suit, the TVA Defendants have not established
prejudice.

The

only

prejudice

cited

is

the

effort

the

TVA

Defendants have made to market the Megasite since it was certified
in 2006.

(Adams Decl. ¶ 12.)

marketing

mentioned

in

the

The sole specific example of that
proposed

factual

inclusion of the Megasite on two TVA websites.

findings

is

(FF 16.)

the
Any

additional marketing activities referred to in Paragraph 12 of the
Adams declaration are not specified. Moreover, the TVA Defendants’
laches argument is undercut by their assertion that Plaintiff’s
claims about future development of the Megasite are not ripe.
The Court DENIES the TVA Defendants’ motion for summary
judgment as to Count 1 on laches grounds.
Next, the TVA Defendants argue that Bullwinkel’s claims about
future development of the West Tennessee Megasite are not ripe.
(D.E. 76-2 at 8-11.)

“The ripeness doctrine is drawn both from

Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction[.]”

Nat’l Park

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.
Ct. 2026, 2030, 155 L. Ed. 2d 1017 (2003) (internal quotation marks
omitted).

“[A] ripeness problem arises only if the claim involves

contingent future events that may not occur as anticipated, or
indeed may not occur at all.”

Winnett v. Caterpillar, Inc., 609

F.3d 404, 413 (6th Cir. 2010) (internal quotation marks omitted).
The ripeness doctrine prevents courts from entangling
themselves in abstract disagreements through premature
adjudication. Courts consider three factors to evaluate
ripeness: (1) the likelihood that the harm alleged by
the plaintiffs will ever come to pass; (2) whether the
19

factual record is sufficiently developed to produce a
fair adjudication of the merits of the parties’
respective claims; and (3) the hardship to the parties if
judicial relief is denied at this stage in the
proceedings.
Miller v. City of Cincinnati, 622 F.3d 524, 532 (6th Cir. 2010)
(internal citations & quotation marks omitted), cert. denied, ___
U.S. ___, 131 S. Ct. 2875, 179 L. Ed. 2d 1188 (2011); see also
Carey v. Wolnitzek, 614 F.3d 189, 196 (6th Cir. 2010) (same).
In this case, the TVA Defendants emphasize that no industrial
development has occurred on the Megasite, and there are no plans
for any such development.
proposal,

the

magnitude

(FF 18.)
of

any

Until there is a specific
environmental

effects

industrial development of the Megasite cannot be assessed.
Decl. ¶ 13.)

from
(Adams

In his response, Plaintiff states that he “has not

sought to enjoin ‘actual industrial development’” of the Megasite.
(D.E. 85 at 12.)

The prayer for relief in the amended complaint

does not seek to enjoin future industrial development of the
Megasite.

On the basis of that clarification, the TVA Defendants’

motion for summary judgment on Count 1 on the basis of ripeness is
DENIED.
Finally, the TVA Defendants argue that the TVA has fulfilled
its obligations under NEPA for both the Megasite and the Solar
Farm.

(D.E. 76-2 at 11-18.)

statute.

NEPA is essentially a procedural

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 350, 109 S. Ct. 1835, 1846, 104 L. Ed. 2d 351 (1989); Save Our
Cumberland Mountains v. Kempthorne, 453 F.3d 334, 338 (6th Cir.
2006), reh’g & reh’g en banc denied (Dec. 6, 2006).
20

“If the

adverse environmental effects of the proposed action are adequately
identified and evaluated, the agency is not constrained by NEPA
from deciding that other values outweigh the environmental costs.”
Robertson, 490 U.S. at 350, 109 S. Ct. at 1846.

Courts are

required to give deference to an agency’s determinations under
NEPA:
Neither the statute nor its legislative history
contemplates that a court should substitute its judgment
for that of the agency as to the environmental
consequences of its actions. The only role for a court
is to insure that the agency has taken a “hard look” at
environmental consequences; it cannot interject itself
within the area of discretion of the executive as to the
choice of the action to be taken.
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S. Ct. 2718, 2730
n.21, 49 L. Ed. 2d 576 (1979) (internal citations & some quotation
marks omitted); see also Marsh v Ore. Natural Res. Council, 490
U.S. 360, 377, 109 S. Ct. 1851, 1861, 104 L. Ed. 2d 377 (1989)
(deference required for conclusions based on analysis of factual
issues within area of agency’s expertise).
“In general, agency decisions are set aside only if they are
‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’”

Cmtys., Inc. v. Busey, 956 F.2d 619, 623

(6th Cir.) (citing 5 U.S.C. § 706(2)(A)), cert. denied, 506 U.S.
953, 113 S. Ct. 408, 121 L. Ed. 2d 332 (1992).

The “arbitrary or

capricious” standard is widely applied in NEPA litigation.

See

Marsh, 490 U.S. at 377, 109 S. Ct. at 1861 (applying arbitrary or
capricious standard); Save Our Cumberland Mountains, 453 F.3d at
339 (applying arbitrary or capricious standard to agency’s decision

21

not to prepare an EIS); Burkholder v. Peters, 58 F. App’x 94, 99
(6th Cir. 2003) (applying arbitrary and capricious standard to
agency’s decision to issue a FONSI); Sherwood v. Tenn. Valley
Auth., No. 3:12-CV-156, 2012 WL 2212971, at *2, 5 (E.D. Tenn. June
15, 2012) (applying arbitrary and capricious standard to agency’s
decision that action is covered by a categorical exclusion);
Buckeye Forest Council v. United States Forest Serv., 378 F. Supp.
2d 835, 849 (S.D. Ohio 2005) (same).

The scope of review is

narrow:
[I]n making the factual inquiry concerning whether an
agency decision was “arbitrary or capricious,” the
reviewing court must consider whether the decision was
based on a consideration of the relevant factors and
whether there has been a clear error of judgment. This
inquiry must be searching and careful, but the ultimate
standard of review is a narrow one. When specialists
express conflicting views, an agency must have discretion
to rely on the reasonable opinions of its own qualified
experts even if, as an original matter, a court might
find contrary views more persuasive.
Marsh, 490 U.S. at 378, 109 S. Ct. at 1861 (internal citations &
quotation marks omitted); see also Davis ex rel. Farmers Bank &
Capital Trust Co. v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693
(6th Cir. 1989) (“The arbitrary or capricious standard is the least
demanding form of judicial review of administrative action.

When

it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not arbitrary
or capricious.”), cert. denied, 495 U.S. 905, 110 S. Ct. 1924, 109
L. Ed. 2d 288 (1990), reh’g denied, 496 U.S. 932, 110 S. Ct. 2634,
110 L. Ed. 2d 654 (June 11, 1990).

22

Count 1 of the amended complaint asserts a claim against the
TVA under NEPA and the APA arising from its use of categorical
exclusions in its megasite certification program in general and,
specifically, on the Haywood County Megasite. (D.E. 5 ¶¶ 91-92.)33
As previously noted, those decisions must be reviewed under the
deferential arbitrary or capricious standard.
TVA

Senior

Manager

for

NEPA

Policy

Loney

submitted

a

declaration detailing his conclusion, after consultation with his
staff and with the TVA’s Economic Development staff, that TVA’s
entry into a contract with MSC for selection of megasites fell
within several categorical exclusions. (Loney Decl., D.E. 77.) He
offered the following explanation for his decision:
Based on my review of the MSC contract, and after
discussions with my staff, I confirmed that the contract
was categorically excluded from formal NEPA review. The
purpose of the MSC contract was to provide technical and
planning assistance to State and local organizations
which were seeking help in attracting new industry. The
contract was a TVA procurement activity, since TVA was
procuring MSC’s services under the contract.
In
addition, since certification by itself did not mean that
a site would be subject to industrial development, only
that it could be at some indeterminate point in the
future, the contract did not have a primary impact on the
physical environment.
Accordingly, TVA categorical
exclusions 5.2.2 (technical and planning assistance),
5.2.4 (procurement), and 5.2.27 (no primary impact on the
physical environment) applied to the MSC contract. These
categorical exclusions required no formal documentation
under CEQ’s regulations and TVA’s procedures, nor did
they require the opportunity for public input and
comment.
(Id. ¶ 6.)

33

The Court has already dismissed Plaintiff’s claim concerning TVA’s
megasite selection program as moot.

23

In his response, Bullwinkel suggests that Loney’s analysis of
the MSC contract was “belated” and a “past tense conclusory
opinion.”
that

Loney

(D.E. 85-1 at 7.)
did

not

actually

It is unclear whether he contends
analyze

Plaintiff did not contest FF 9.

the

contract

in

2004.

Any claim that Loney did not

evaluate the MSC contract in 2004 is belied by Paragraph 2 of the
Loney declaration, which states that, in March 2004, Loney and his
staff reviewed the contract and Loney discussed it with TVA’s
Economic Development staff.34 Paragraph 6 of the declaration states
that Loney “confirmed that the contract was categorically excluded
from

NEPA

review.”

Loney

also

explained

the

absence

contemporaneous written documentation for his conclusions.

of

(Loney

Decl. ¶ 6.)
Plaintiff

does

not

specifically

take

issue

with

Loney’s

analysis of the exclusions he concluded were applicable to the MSC
contract.35

Instead, he questions whether Loney considered whether

the exceptions to the categorical exclusions were applicable.
(D.E. 85-1 at 8.)

Those exceptions apply if

34
See also Loney Decl. ¶ 5 (“While arguably Economic Development staff
should have consulted with my staff about environmental review requirements
before the [MSC] contract was executed, the contract had just been signed, no
decisions under the contract had been made, and the contract could have been
terminated at any time for any reason on 30 days notice.
Accordingly, I
determined there was ample opportunity to correct any potential deficiencies
relative to NEPA review.”).
35

In his responses to the TVA Defendants’ statement of undisputed
facts, Plaintiff stated that the assertions were conclusory, the underlying
information was not produced, and the contract should be analyzed as a “connected
action.”
(D.E. 85 at 7-8.)
He also disputed whether § 5.2.27 had any
application to the contract (D.E. 85 at 8), although his explanation why it does
not is indecipherable.

24

(1) the proposed action could have a potentially
significant impact on a threatened or endangered species,
wetland or floodplain, cultural or historical resource,
important farmland, or other environmentally significant
resource; or (2) substantial controversy over the
significance of the environmental impacts associated with
the proposed action has developed or is likely to
develop.
(TVA NEPA Procedures § 5.2, TVA AR 27.)

Loney’s declaration does

not specifically state that he considered whether the exceptions
might apply.

Even if Loney failed to consider those exceptions,

Plaintiff has not established that the failure was an abuse of
discretion.
contract,

As the TVA Defendants have pointed out, the MSC

in

environment.
Loney

and

of

itself,

had

no

effect

on

the

physical

(D.E. 88 at 8.)

explained

his

decision

that

the

certification

and

marketing of the West Tennessee Megasite did not require an EIS or
an EA as follows:
7.
In July 2006, MSC certified as a megasite what
is now known as the West Tennessee Megasite.
Gary
Bullwinkel raised concerns about that decision with me,
a member of the TVA Board of Directors, and a senior TVA
manager.
8.
NEPA did not apply to the certification of the
West Tennessee Megasite since MSC’s decision did not
result in any physical impacts. If TVA was involved in
the development of the Megasite at some time in the
future, then NEPA could apply and some level of NEPA
review could be required, along with other required
environmental review and permitting processes.
9.
After MSC certified the Megasite and up to the
time of my retirement in January 2008, TVA’s Economic
Development organization assisted in marketing the site.
Since this assistance did not involve any physical
impacts, NEPA was not triggered and no NEPA review of any
kind was required.

25

(Loney Decl. ¶¶ 7-9; see also Nicholson Decl. ¶¶ 3-5 (same); Adams
Decl. ¶ 13 (“The magnitude of potential development impacts were
not known during the certification process.

Neither MSC nor TVA

can predict, the actual size, scope, or design of potential
industrial operations until such time as this information is
revealed

during

an

actual

project.

TVA

has

no

control

or

responsibility for how the Megasite property is or might be
developed in the future.”).)

Dr. Nicholson explained that the

possibility of NEPA review if, and when, a buyer is found for the
West Tennessee site is very real:

“MSC certified a total of seven

megasites under its contract with TVA.
been sold.

Five of those sites have

Due to TVA involvement with the development of some of

those five sites, TVA has conducted NEPA reviews of TVA’s proposed
actions, including three EAs on projects related to the three
megasites in Mississippi.”
Again,

Plaintiff

(Nicholson Decl. ¶ 7.)

does

not

appear

to

dispute

that

the

categorical exclusion in § 5.2.27 applies because the certification
and marketing of the West Tennessee Megasite does not have a
primary impact on the physical environment.

Instead, he cites the

exceptions to the TVA’s categorical exclusions. (D.E. 85-1 at 8.)
For the reasons previously stated, TVA did not abuse its discretion
in failing explicitly to analyze the West Tennessee Megasite under
§ 5.2(1). The certification and marketing of the Megasite did not,
in themselves, effect the physical environment and, while Haywood
County hoped that the certification would help in persuading a
manufacturer to purchase the site, there was no assurance that such
26

an event would take place.

There also was no way to measure the

scope and type of effects that would occur, as they are dependent
on the type of manufacturer and the size of the planned facility.
(See Adams Decl. ¶ 13.)
Finally,

Bullwinkel

contends

that

the

TVA

improperly

“segmented” the Megasite project to avoid compliance with NEPA.
(D.E. 85-1 at 9.)
From these [CEQ] regulations, courts have developed an
“impermissible segmentation” rule.
Impermissible
segmentation involves a “major federal action” where a
small part of that action has been “segmented” in order
to escape application of the NEPA process. The hallmark
of improper segmentation is the existence of two proposed
actions where the proposed component action has little or
no independent utility and its completion may force the
larger or related project to go forward notwithstanding
the environmental consequences.
Courts have also
required that environmental effects of multiple projects
be analyzed together when those projects will have a
cumulative effect on a given region. Finally, multiple
stages of a development must be analyzed together when
the dependency is such that it would be irrational, or at
least unwise, to undertake the first phase if subsequent
phases were not also undertaken.
Hirt v. Richardson, 127 F. Supp. 2d 833, 842 (W.D. Mich. 1999)
(internal citations & some quotation marks omitted); see also
Anglers of the Au Sable v. United States Forest Serv., 565 F. Supp.
2d 812, 831 (E.D. Mich. 2008) (same).

“The doctrine of improper

segmentation is limited, however, to proposed actions; NEPA does
not require an agency to consider the possible environmental
impacts of less imminent actions.” Anglers of the Au Sable, 565 F.
Supp. 2d at 831 (internal quotation marks omitted); see also City
of Riverview v. Surface Transp. Bd., 398 F.3d 434, 442 (6th Cir.
2005) (same).
27

In Au Sable, for example, the court rejected an argument that
the United States Forest Service, which had approved exploratory
drilling for oil and gas, failed to consider the impact of other
likely wells if the exploratory well were to be productive:
This Court finds no improper segmentation because the
future wells are not yet “imminent.” Indeed, the very
point of an exploratory well is to evaluate the
possibilities for future development; additional wells
will not be proposed unless the first well is productive.
Of course, if that eventuates, the cumulative effect of
the present project, should it go forward, must be taken
into account in assessing the new proposal.
565 F. Supp. 2d at 831-32.36
Similarly, in City of Riverview, the Sixth Circuit Court of
Appeals held that the agency, which had approved a railroad’s
application to operate an intermodal transportation facility, was
not required to consider that the railroad might at some point add
river barge service at its terminal or purchase additional acreage
and enlarge its facility.

City of Riverview, 398 F.3d at 442.

The

appellate court explained that, “[w]ithout some details as to the
amount of barge traffic contemplated or the nature of the pier or
dock to be built, any environmental analysis would be based solely
on conjecture.”

Id.

Plaintiff has not shown that the TVA acted arbitrarily or
capriciously

or

that

it

abused

its

discretion

by

improperly

segmenting its analysis of the certification and marketing of the
West Tennessee Megasite.

When the West Tennessee Megasite was

36

The Au Sable court found that the agency did fail to consider the
precedential effect of allowing an exploratory well, id. at 832, a factor that
is not present in the instant case.

28

certified in 2006, there was no proposal to purchase and develop
the Megasite.

Even today, the Megasite has not been developed and

there are no plans for development.

(FF 18.)

Although Haywood

County presumably sought certification of the Megasite in the hopes
of attracting large-scale industrial development, NEPA does not
require the TVA to perform a speculative environmental analysis of
actions that are not imminent. Finally, Plaintiff does not suggest
that, at the time the Megasite was certified, TVA had any knowledge
that the Solar Farm and Welcome Center would be proposed for that
area three years in the future.
For all the foregoing reasons, the Court GRANTS the TVA
Defendants’ motion for summary judgment on Count 1 of the amended
complaint.

The claim is DISMISSED.

The TVA Defendants have also moved for summary judgment on
Plaintiff’s claims against them in connection with the TVA’s
agreement to purchase power generated by the Solar Farm. (D.E. 762 at 11-18.)

Although the amended complaint does not identify the

parties sued on each claim, it appears that the TVA might be sued
in Count 12, which alleges a violation of NEPA and the APA arising
from a failure to identify and coordinate the Solar Farm and
Welcome Center and its associated transmission lines as a connected
action with the West Tennessee Megasite.

(D.E. 5 ¶¶ 139-41.)37

As

previously noted, TVA reviewed and adopted DOE’s EA and issued its
own FONSI pertaining to the Solar Farm.

37

(FF 25-28.)

TVA’s FONSI

TVA is not named in Count 13, which alleges a violation of NEPA and
the APA by the State of Tennessee arising from the Megasite. (D.E. 5 ¶¶ 142-43.)

29

was

contingent

on

the

State

of

mitigation plan developed by DOE.

Tennessee’s

adherence

to

a

(FF 27.)

In deciding to issue a FONSI, TVA did not simply rubber-stamp
DOE’s conclusions.

TVA conducted an independent review of DOE’s

comprehensive EA (DOE AR 001207), as well as its “supporting
documentation, underlying reports, agency consultation letters,
findings, and public documents to verify the adequacy of DOE’s
assessment, and to ensure the bounding of potential impacts of TVA
actions.”

(TVA AR 2, D.E. 37-5.)

TVA’s administrative record

reflects that it considered additional documents and correspondence
(TVA AR 6), allowed for its own notice and comment period (TVA AR
4), evaluated the alternative of taking no action (TVA AR 7), and
conducted its own analysis of the impacts of the Solar Farm and
Welcome Center project, including future approvals that would be
required (TVA AR 3-4).

Bullwinkel’s objections to the TVA FONSI

are not clearly stated, although, as previously noted, Count 12 of
the amended complaint claims that the Solar Farm and Welcome Center
should have been considered as a connected action to the Megasite.
Analysis of multiple projects as “connected actions with
cumulative impacts” is required only for proposed actions pending
concurrently before an agency.

Lone Tree Council v. United States

Army Corps. of Eng’rs, No. 06-12042-BC, 2007 WL 1520904, at *17
(E.D. Mich. May 24, 2007).
occurred in 2004.

TVA’s analysis of the MSC contract

In 2006, that contract terminated and the West

Tennessee Megasite was certified.

TVA’s NEPA analysis of these

actions took place before the Solar Farm was proposed and submitted
30

to the DOE for review in 2009.

(See DOE AR 1221; TVA AR 4.)

Thus,

the Solar Farm and the Megasite were not pending concurrently.38
The Solar Farm and Megasite also do not satisfy the definition
of “connected actions” in the pertinent CEQ regulation:
Actions are connected if they:
(i) Automatically trigger other actions
require environmental impact statements.

which

may

(ii) Cannot or will not proceed unless other actions are
taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and
depend on the larger action for their justification.
40 C.F.R. § 1508.25(a)(1).
In its NEPA review of the Solar Farm, TVA officials considered
whether the project was connected to the Megasite.

The only

evidence in the record are the conclusions of various TVA officials
that the two projects are not connected. According to Billy Adams,
who is responsible for marketing the Megasite, “[p]rospective
development of the Megasite is not dependent on the construction
and operation of the Solar Farm.”

(Adams Decl. ¶ 14.)

TVA Manager

for NEPA Compliance Nicholson has stated that “[t]he Solar Farm is
independent of the Megasite. The construction and operation of the
Solar Farm will not compel development of the Megasite without the
appropriate

environmental

review.”

(Nicholson

Aff.

¶

7.)

Plaintiff has not identified any evidence to the contrary.

38

Plaintiff’s claim that TVA somehow acted improperly by failing to be
the lead agency in analyzing the Solar Farm appears to be an attempt to qualify
the Solar Farm and the Megasite as connected actions. Even if the projects had
been analyzed by the same agency, they still were not pending concurrently.
TVA’s analysis of the Megasite was completed before the Solar Farm was submitted
for review in 2009.

31

The

administrative

record

indicates

that

DOE

considered

whether the Megasite was a connected action and concluded that it
was not.

Thus, the DOE FONSI states as follows:

Many of the comments received suggested that the West
Tennessee Megasite is a connected action. DOE determined
the Megasite is not a connection action based on the
definition in 40 CFR § 1508. Neither the Megasite nor
the Solar Farm would automatically trigger the other.
Similarly, neither requires the other to be undertaken
previously or simultaneously.
Finally, they are not
interdependent parts of a larger action that depends on
the larger action for their justification. Although the
plans for the Megasite are largely speculative based on
the existing information, it was evaluated in the
Cumulative Impacts section of the EA.
(DOE AR 001210; see also DOE AR 001212, 001343, 001344-45 (comment
by Bullwinkel & responses), 001347-49 (comment by Bullwinkel &
responses), 001358, 001363.)

Plaintiff has not demonstrated that

the conclusion in the DOE EA that the Megasite and the Solar Farm
are not connected actions is arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law.39
The Court GRANTS the TVA Defendants’ motion for summary
judgment on Count 12 of the amended complaint.

The claim is

DISMISSED.

39
The DOE EA also attempted to analyze the cumulative impacts, which
could not be precisely measured because there was no pending proposal for
development of the Megasite. (DOE AR 001210, 001225-26, 001227, 001231, 00127175.)

32

Because it does not appear that the amended complaint asserts
any other claims against the TVA Defendants, the Clerk is directed
to terminate them as parties to this action.
IT IS SO ORDERED this 13th day of August 2012.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

33