Bullwinkel v. United States Department of Energy et al
Filing
190
ORDER GRANTING THE MOTIONS TO DISMISS 170 171 FILED BY THE STATE OF TENNESSEE, THE STATE OFFICIAL DEFENDANTS, AND THE UNIVERSITY OF TENNESSEE DEFENDANTS AND ORDER OF PARTIAL DISMISSAL. Signed by Judge J. Daniel Breen on 1/31/13. (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.
No. 11-1082
ORDER GRANTING THE MOTIONS TO DISMISS FILED BY
THE STATE OF TENNESSEE, THE STATE OFFICIAL DEFENDANTS, AND
THE UNIVERSITY OF TENNESSEE DEFENDANTS
AND
ORDER OF PARTIAL DISMISSAL
Before the Court is the University of Tennessee Defendants’
Motion
to
Dismiss
Plaintiff’s
Title
VI
Claims
(Docket
Entry
(“D.E.”) 170) and the State of Tennessee’s Motion to Dismiss and
State Officials’ Motion for Judgment on the Pleadings Regarding
Title VI Claims.
(D.E. 171).
For the reasons that follow, these
motions are GRANTED.
In
previous
Plaintiff,
Gary
orders,
the
Bullwinkel,
Court
dismissed
arising
under
the
the
claims
of
National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-05,
against the State of Tennessee, the State Official Defendants,1 and
1
The State Official Defendants are Tennessee Governor William Haslam;
William Hagerty, Commissioner of the Tennessee Department of Economic and
(continued...)
the University of Tennessee Defendants.2
(D.E. 116 (State of
Tennessee), 117 (University of Tennessee), 120 (Dr. DiPietro), 130
(State Officials).)
The only claims remaining against these
parties arise under Title VI of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000d et seq.
In an order issued on April 16, 2012, the
Court granted the motions filed by the State of Tennessee and the
University of Tennessee Defendants for a more definite statement of
Bullwinkel’s Title VI claims. (D.E. 142.) Plaintiff complied with
that order by filing his More Definite Statement on Title VI Claims
Against State Defendants (“More Definite Statement”) on May 2,
2012.
(D.E. 144.)
On September 4, 2012, the University of Tennessee Defendants
filed their Motion to Dismiss Title VI Claims under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure.
(D.E. 170.)
Also on September 4, 2012, the State of Tennessee filed a similar
motion to dismiss and the State Official Defendants filed a motion
for judgment on the pleadings on those claims under Rule 12(c).
(D.E. 171.)
2012.
Plaintiff responded to these motions on September 18,
(D.E. 183.)
The Title VI allegations in the Amended Complaint are as
follows:
1
(...continued)
Community Development (“TNECD”); and John Schroer, Commissioner of the Tennessee
Department of Transportation (“TDOT”).
2
The University of Tennessee Defendants
Tennessee and its President, Dr. Joe DiPietro.
2
are
the
University
of
48. Plaintiff Gary Bullwinkel is an individual
living at 5780 Yum Yum Rd, Somerville, TN 38068.[3]
52. Mr. Bullwinkel is a member of the Greater
Fredonia Community for Environmental Justice advocacy
group and is concerned about the impacts of the Megasite
and Solar Farm/Welcome Center/Transmission Lines on the
residents of Fredonia, TN and other nearby minority
communities where he has many friends.
He is very
concerned with the disparate and discriminatory economic
effects of the Megasite land option and purchase program
in this area as executed by Haywood County and the State
of Tennessee. These land options were required by the
Tennessee Valley Authority for continued certification
status as a TVA Megasite.
61. Haywood County, TN funded and executed option
to buy legal instruments (“Megasite Options”) on
specified parcels during this time, and then in 2007 used
State of Tennessee Funds to identify, select and contract
for two year options to buy on specified parcels. This
enabled the West Tennessee Megasite to retain its TVA
Megasite certification and qualify for the global
marketing program funded by TVA for its certified
Megasites.
64. Representatives of the Sierra Club and
Tennessee Clean Water Network are particularly concerned
with the identification and avoidance of wetlands
degradation; the displacement of thousands of acres of
prime and unique farmland, and the depletion and
pollution of groundwater resources and other possible
adverse environmental effects of Megasite industrial
development. These groups, plaintiff and local citizens
are also concerned about the Megasite effects of urban
sprawl on rural communities.
They are especially
concerned with the possible multiple detrimental and
disparate effects of the West Tennessee Megasite on the
adjoining minority community of Fredonia and other rural
residents of air and water pollution.
Other adverse
environmental effects would be traffic congestion,
destruction of property values, and erosion of family
integrity, religious and cultural mainstays of their
current lifestyles.
65. In 2007, the Tennessee Legislature allocated
$3,000,000 to purchase 2 year options-to-purchase on
multiple land parcels in the area for $500 an acre for
the purpose of megasite development.
Franklin Smith,
3
This address is in Fayette County, Tennessee.
3
Mayor of Haywood County, TN negotiated and closed these
options with particular landowners in the name of Haywood
County but with the State of Tennessee funds. Of the
6,000 acres optioned only 70 acres belonging to a
minority were optioned despite multiple minority owned
properties immediately adjacent to and/or surrounded by
parcels optioned to white landowners. These options were
for two years and would expire worthless in Dec, 2009 if
not exercised by Haywood County, TN for land purchases.
66. In May 2009, then TN Governor Phil Bredesen
proposed to the Tennessee Legislature to purchase land
parcels in the “Megasite” area using up to $40,000,000 of
new bond funds for the West Tennessee Megasite site. The
Legislature approved the purchase and Tennessee did
exercise the previously executed “Megasite Options” and
purchased over 3900 acres of specified numerically
identified parcels for the West Tennessee Megasite in and
around October, 2009.
68. September 15, 2009: DOE/NETL approved the
application for TN Volunteer Solar Initiative ARRA funds.
Tennessee announces the Solar Farm would be on Parcel
“Site 40” previously optioned by the above 2007 “megasite
option process”.
This parcel was located along
Interstate 40 in Haywood County and was to be purchased
by the University of Tennessee using unnamed funds.
State authorities state the Solar Farm and Welcome Center
would be “separated” from the West TN Megasite for the
purposes of NEPA and the Environmental Assessment process
would be only on the Solar Farm, Welcome Center and
Transmission Lines.
70. September 22, 2009: The Fayette County
Legislative body (County Commission) passes a resolution
unanimously requesting the State of Tennessee respond to
specific questions about the Megasite before purchasing
land for the Megasite in the North Fayette County area.
They also asked the State to investigate the complaints
of discrimination concerning the land options, potential
purchases and possible adverse environmental effects
“Megasite” industrial development could bring to the
area.
71. September 29, 2009: The State of Tennessee
State Building Commission holds a public hearing during
an Executive Committee meeting concerning the purchase of
the Megasite properties. Property owners in Fredonia and
Plaintiff testify at the hearing and deliver a Title VI
complaint to these Constitutional Officers of Tennessee
complaining of discriminatory actions and disparate
4
effects from the land optioning process and any
subsequent purchases made without consideration of their
property values and resultant effects of industrial
development on adjoining lands. The Title VI complaint
document signed by 17 Fredonia property owners also
complained of the possibility of subsequent subjection to
environmental, transportational and cultural degradation
of their living conditions after the planned industrial
development.
72. September 29, 2009: The Tennessee State
Building Commissions receives the Title VI complaint with
accompanying testimony, prima facie documentation with
maps from the official Haywood County Megasite
application and then votes to allow the Tennessee
Economic Development Commission to issue the bonds and
purchase the designated properties at the price of
$10,600 an acre (includes $500 option paid on most
parcels). Parcels purchased included “Sites” 1, 2, 3, 5,
6, 9, 11, 13, 14, 15, 16, 17, 18, 19, 21, 20, 21 [sic],
22, 33, 34, 35, 36, 37, 42, 43, and 44.
(D.E. 5 ¶¶ 48, 52, 61, 64, 65, 66, 68, 70, 71, 72.)
Thus, the
Title VI factual allegations of the Amended Complaint are primarily
focused on the purchases of land for the Megasite.
Count 5 of the Amended Complaint, titled “Violation of NEPA,
NEPA regulations, for failing to properly limit actions during NEPA
analysis and violations of APA Sec. 706(2)(c) for taking actions
beyond statutory authority or limitations,” may be the only claim
asserted against the moving Defendants under Title VI.
That claim
includes the following Title VI allegations:
110. DOE/NETL not only allowed but gave approval to
the State of Tennessee to use federally limited Stripper
Well Agreement Funds to purchase the Solar Farm (Site 40
— Stuart Land) previously secured by the Title VI
challenged State funded “Megasite Options” at the price
of $500 per acre. The State of Tennessee subsequently
divided the land into varied and reserved uses in
violation of NEPA and the Stripper Well Agreement as
dictated by a Kansas Federal District Court negotiated
agreement.
5
113. NEPA, Environmental Justice, Title VI, DOE NEPA
Regulations and original Kansas District Court settlement
governing the use of Stripper Well PVE funds demand a
close analysis of the socio-economic results on adjacent
minority landowners of the precedent of commingling
Federal PVE funds with the possibly discriminatory
“Megasite Option” funds to purchase this piece of land.
Defendants failed to perform and consider these required
analyses
in
conjunction
and
timed
with
NEPA
considerations concerning the land purchase and approval
process to the detriment and harm of all parties
involved.
(Id. ¶¶ 110, 113.)
approval,
The Amended Complaint alleges that “DOE/NETL’s
coordination
and
lack
of
coordination
of
these
prejudicial and illegal actions” is contrary to NEPA and is
“arbitrary,
capricious,
an
abuse
of
discretion
and
exceeds
statutory authority or limitations” in violation of the APA, 5
U.S.C. § 706(2)(A).
against
unspecified
(Id. ¶ 115.)4
“Defendants,”
Claims 8 and 9, asserted
also
allege
that
the
NEPA
analysis failed adequately to consider the impact on minority
residents of potential adverse effects on drinking water and air
quality.
(Id. ¶¶ 124-32.)
In his More Definite Statement, Plaintiff stated that he “is
asserting
a
freestanding
Title
VI
claim
against
the
moving
defendants independent of the NEPA claims and also asserts that the
Environmental Assessment published by the Department of Energy is
deficient under NEPA for failure to consider Title VI implications
4
Claim 3 asserts that the Federal Highway Administration (“FHWA”)
violated Title VI by failing to consider the Title VI complaint filed with the
State of Tennessee arising from, inter alia, “the possible discriminatory and
disparate economic effects of the megasite options and subsequent purchase of the
Welcome Center on nearby black landowners.” (D.E. 5 ¶ 103.) That claim does not
appear to be asserted against the State of Tennessee, the State Official
Defendants, or the University of Tennessee Defendants.
6
of the project covered by the assessment.”
(D.E. 144 at 1-2.)
Bullwinkel contends that the following acts violate Title VI:
1.
The Governor of Tennessee and the Commissioner
of TN ECD failed to perform and provide Title VI analysis
for the State of Tennessee (coordinated by TN ECD)
financing of Megasite land options executed through subrecipient Haywood County in 2007. These binding options
were executed to satisfy a vital requirement of the TVA
Megasites Program Certification process. The TVA, the TN
ECD Commissioner and the Haywood County Mayor coordinated
a siting process to identify, groom and certify a site in
Haywood County as “shovel ready” for a large industrial
client, such as an auto assembly plant.
This siting
occurred in a rural area that was and is zoned for
Forestry-Agricultural-Rural uses.
These acts involve
funding or approvals from TVA.
2.
The Governor of Tennessee and the Commissioner
of TN ECD failed to require Haywood County as a
subrecipient of TVA monies/services to perform/provide
Title VI analysis for the selection and administrative
process of the Haywood County financing of Megasite land
options in 2006 and the State of Tennessee refinancing of
the Megasite land options in 2007. These binding options
were executed to satisfy a vital requirement of the TVA
Megasites Program Certification process.
These acts
involve funding or approvals from TVA.
3.
The Governor of Tennessee and the State of
Tennessee through the Tennessee State Building Commission
(“SBC”), made up of the Constitutional officers of the
State of Tennessee including the Governor, Lieutenant
Governor, Speaker of the House, Treasurer, Comptroller
and the Commissioner of Finance and Administration and
the Commissioner of TN ECD failed to perform/provide
Title VI analysis for the State of Tennessee exercise of
the above Megasite Options and purchase of land for the
“TVA certified” Megasite in the fall and early winter of
2009, including the Solar Farm plat.
These land
purchases were executed to satisfy a vital requirement of
the TVA Megasites Program Certification process and to
secure land parcels for an industrial siting process.
These acts involve funding or approvals from TVA, DOE and
FHWA.
4.
The Governor of Tennessee and the State of
Tennessee through the State Building Commission, the
Commissioners of TN ECD and TDOT commissioned several
engineering reports and specific infrastructure plans
7
(executed by SSOE and Long engineering firms) that detail
extensive Megasite infrastructure projects including
highway rerouting, Interstate access, wastewater and
public water facilities, rail improvements, stream
relocation, potential heavy industrial client facilities
and the Solar Farm and transmission lines. The State of
Tennessee through the SBC, the Governor of the State of
Tennessee, and TN ECD and TDOT commissioners failed to
perform/provide Title VI analysis on the effects of such
siting and infrastructure development.
These acts
involve funding or approvals from TVA, DOE and FHWA.
5.
The Governor of Tennessee, the Commissioners of
TDOT and TN ECD failed to perform/provide Title VI
analysis for the SR 222 rerouting, I-40 Exit Interchange
upgrade, a proposed State Industrial Access (proposed
Exit 44 on the Solar Farm), and proposed Welcome Center
Development and effects on the surrounding communities,
including plaintiff’s, as required on State/FHWA State
Transportation Improvement Program (“STIP”) reporting
process.
6.
The Governor of Tennessee, the Commissioners of
TDOT and TN ECD, the University of Tennessee (“UT”) and
the
President
of
UT,
Joe
DiPietro,
failed
to
perform/provide Title VI analysis for the Welcome Center
land siting and/or planned acquisition of land as a part
of a coordinated system of optioning and purchases for
the West Tennessee Megasite and its developments and
planned infrastructure including the planned State
Industrial Access Interstate Exit partially located on
the Solar Farm site.
These acts involve funding or
approvals from TVA, DOE and FHWA.
7.
The Governor of Tennessee, the Commissioners of
TDOT and TN ECD, the University of Tennessee (“UT”) and
the
President
of
UT,
Joe
DiPietro,
failed
to
perform/provide Title VI analysis for the use of
restricted use Petroleum Violation Escrow Funds for
acquisition of the Solar Farm land.
As part of the
Kansas District Court settlement, adequate restitution of
these funds to lower income and minority petroleum users
is required.
The PVE funds are distributed and
controlled by DOE.
8.
The Governor of Tennessee, the Commissioners of
TDOT and TN ECD, the University of Tennessee (“UT”) and
the
President
of
UT,
Joe
DiPietro,
failed
to
perform/provide Title VI analysis for the planned
FHWA/TDOT Welcome Center wastewater and water supply
effects.
8
9.
The Governor of Tennessee, the Commissioners of
TDOT and TN ECD, the University of Tennessee (“UT”) and
the
President
of
UT,
Joe
DiPietro,
failed
to
perform/provide Title VI analysis for the planned closure
of Albright Road and the destruction of the Albright Road
Interstate Overpass. This is a project that would affect
DOE and FHWA funding or approvals.
10. The Governor of Tennessee, the Commissioners of
TDOT and TN ECD, the University of Tennessee (“UT”) and
the
President
of
UT,
Joe
DiPietro,
failed
to
perform/provide Title VI analysis for the introduced
effects of automobile and diesel truck air pollution,
including dangerous ozone and particulate pollution, by
the increased traffic and idling trucks common at Welcome
Centers. This is a project that would affect DOE and
FHWA funding or approvals.
11. The Governor of Tennessee, the Commissioner of
TN ECD, the University of Tennessee (“UT”) and the
President of UT, Joe DiPietro, failed to perform/provide
Title VI analysis for the Solar Array Transmission line
routing effects. This is a project that would affect DOE
and TVA funding or approvals.
(Id. at 5-8.)
Thus, Paragraphs 1 through 3 appear to be stand-
alone Title VI claims arising from the purchase of the land for the
Megasite.
seems
to
Every paragraph of the More Definite Statement also
assert
a
Title
VI
claim
challenging
various
NEPA
assessments as failing adequately to analyze the Title VI issues.5
The State of Tennessee and the State Official Defendants first
contend that Bullwinkel, who is not a racial minority, lacks
5
In its order granting the motions for a more definite statement, the
Court instructed Plaintiff to “identify the paragraphs of the amended complaint
that relate to the Title VI claims against the moving defendants” for any freestanding Title VI claim. (D.E. 142 at 2.) Although Plaintiff cited various
provisions of the Amended Complaint in his More Definite Statement (D.E. 144 at
9-10), it is clear that most, if not all, of the issues presented in the More
Definite Statement do not appear in the Amended Complaint. For purposes of this
order, however, the Court will assume that the NEPA claims enumerated in the More
Definite Statement were properly alleged in the Amended Complaint. Thus, with
the possible exception discussed infra, this order addresses every Title VI claim
Plaintiff purports to bring against the State of Tennessee, the State Official
Defendants, and the University of Tennessee Defendants.
9
standing to sue under Title VI.
(D.E. 171-1 at 2-6.)
University of Tennessee Defendants make the same argument.
170-1 at 6-8.)
The
(D.E.
These parties rely on the Court’s order denying
Plaintiff’s motion for leave to file a second amended complaint,
which held that he lacked standing to raise the Title VI claims in
that proposed pleading.
(D.E. 160 at 8-10.)
Motions to dismiss for lack of standing can arise under Rules
12(b)(1) or 12(b)(6) of the Federal Rule of Civil Procedure.
Roberts v. Hamer, 655 F.3d 578, 580-81 (6th Cir. 2011), reh’g &
reh’g en banc denied (Oct. 6, 2011).
Where, as here, a challenge
is made to a party’s constitutional or prudential standing, the
motion is properly brought under Rule 12(b)(1). See, e.g., Stalley
v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008), cert.
denied, 555 U.S. 1137, 129 S. Ct. 1004, 173 L. Ed. 2d 294 (2009).
“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
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).
The instant motion is a facial challenge to the Court’s
subject-matter
jurisdiction,
so
the
Court
will
treat
the
allegations of Plaintiff’s Amended Complaint and of his More
Definite Statement as true.
10
“Standing to bring suit must be determined at the time the
complaint is filed.” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs,
641 F.3d 197, 206 (6th Cir.), cert. denied, ___ U.S. ___, 132 S.
Ct. 103, 181 L. Ed. 2d 31 (2011); see also Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 88, 104, 118 S. Ct. 1003, 1009,
1017, 140 L. Ed. 2d 210 (1998) (reviewing a dismissal for want of
standing based on the pleadings).
A plaintiff must satisfy both
Article III and prudential standing.
Smith, 641 F.3d at 206.
The requirements for Article III standing are as follows:
The irreducible constitutional minimum of standing
contains three requirements. First and foremost, there
must be alleged (and ultimately proved) an “injury in
fact” — a harm suffered by the plaintiff that is concrete
and actual or imminent, not conjectural or hypothetical.
Second, there must be causation — a fairly traceable
connection between the plaintiff’s injury and the
complained-of conduct of the defendant. And third, there
must be redressability — a likelihood that the requested
relief will redress the alleged injury. This triad of
injury in fact, causation, and redressability constitutes
the
core
of
Article
III’s
case-or-controversy
requirement, and the party invoking federal jurisdiction
bears the burden of establishing its existence.
Steel Co., 523 U.S. at 102-04, 118 S. Ct. at 1016-17 (citations,
footnote and some internal quotations marks omitted); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.
2130, 2136, 119 L. Ed. 2d 351 (1992) (same).
In addition to Article III standing,
[a] plaintiff must also meet the following prudential
requirements for standing developed by the Supreme Court.
First, a plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.
Second, a plaintiff must present a claim that is more
than a generalized grievance.
Finally, the complaint
must fall within the zone of interests to be protected or
11
regulated by the statute or constitutional guarantee in
question.
Smith, 641 F.3d at 206 (internal quotation marks & citations
omitted); see also Monroe Retail, Inc. v. RBS Citizens, N.A., 589
F.3d 274, 278 (6th Cir. 2009) (same), reh’g & reh’g en banc denied
(Mar. 26, 2010).
In its order denying Plaintiff leave to file a second amended
complaint, the Court explained why that pleading did not adequately
allege prudential standing to litigate any Title VI claim:
Bullwinkel alleges in the proposed second amended
complaint that he lives, and owns property, in
Somerville, Tennessee, near the Solar Farm and the
Megasite. Plaintiff is an activist with an interest in
the productive use of farmland and in “smart growth.” He
lives four miles from the Solar Farm and the Megasite and
often uses roads near those sites. The only allegations
about Plaintiff’s standing to raise a Title VI claim are
the following:
Mr. Bullwinkel is a member of the Greater Fredonia
Community for Environmental Justice advocacy group
and is concerned about the effects of the Megasite
and Solar Farm on the residents of Fredonia, TN and
other nearby minority communities where he has many
friends.
He is concerned with the disparate
economic effects of the Megasite land option and
purchase program in this area as executed by
Haywood County and the State of Tennessee.
“Ordinarily, one may not claim standing . . . to
vindicate the constitutional rights of some third party.”
Smith, 641 F.3d at 208. There is an exception to that
general rule where “the party asserting the right has a
close relationship with the person who possesses the
right, and . . . there is a hindrance to the possessor’s
ability to protect his own interests.” Id. (internal
quotation marks omitted). Even if it were assumed that
Plaintiff has a sufficiently close relationship with some
minority residents who live near the Megasite and Solar
Farm, there is no allegation that there exists any
hindrance to one or more such persons bringing their own
Title VI suit. See id. at 208-09 (holding that teachers
lacked prudential standing to assert the rights of their
12
students and of the parents of those students as they
could not meet the second prong of the test for thirdparty standing). Because the proposed Title VI claims
could not withstand a Rule 12(b)(6) motion, it would be
futile to allow Plaintiff to amend his complaint to
assert those claims.
(D.E. 160 at 9-10 (record citations omitted).)
In his response, Bullwinkel does not appear to dispute that he
lacks standing to bring a freestanding Title VI claim.
(See D.E.
183 at 1-2, 3-4 (arguing that Plaintiff has standing to sue to
require proper NEPA analysis), 5 (“Plaintiff only claims Title VI
standing for himself concerning the procedural Title VI violations
detailed in his First Amended Complaint and the More Definite
Statement on Title VI.”).)
Therefore, those claims must be
dismissed under Rule 12(b)(1).6
In his More Definite Statement, Plaintiff stated that, in
addition to freestanding Title VI claims, he is also claiming that
"the Environmental Assessment published by the Department of Energy
is
deficient
6
under
NEPA
for
failure
to
consider
Title
VI
In his response, Plaintiff asserts, for the first time, that
Plaintiff might have a specific Title VI Section 602 interest in the
siting of the Solar Farm Transmission Lines by the University of
Tennessee and Chickasaw Electric Cooperative (“CEC”). Three routes
were shown in the DOE Environmental Assessment, AR 1236. Of the
three, the route chosen was along land owned and populated mainly by
white people including Plaintiff (who is white).
The alternate
routes went through a majority black neighborhood near Hwy 59 in
Fayette County. No Title VI analysis was provided to show whether
discrimination or disparate impacts was [sic] considered in this
routing or whether Plaintiff might have been a victim of
discrimination in the routing because he is white.
This is of
interest to Plaintiff.
(D.E. 183 at 4.) No such claim appears in the Amended Complaint or More Definite
Statement. Even if that were not the case, it would be futile to allow Plaintiff
to amend his complaint to assert such a claim for the reasons stated infra.
13
implications of the project covered by the assessment."
at 1-2.)
(D.E. 144
Plaintiff emphasizes that he has standing to sue on the
ground that the various environmental analyses are deficient under
NEPA for failing adequately to consider Title VI effects.
He
asserts that his injury
is the lack of or the lack of access to Title VI analysis
in a comprehensive industrial siting scheme promulgated
by TVA, the State of Tennessee, DOE and FHWA, inter alia.
Since these major Federal actions and fundings concerning
this huge industrial siting are also subject to NEPA, the
lack of any Title VI analysis in this case creates a
procedural vacuum and therefore causes a critical flaw in
the public process required by the NEPA law and by the
Title VI law, Sections 601 and 602. Since the West TN
Megasite and Solar Farm Project directly affect the
plaintiff, this lack of Title VI analysis, in regards to
the Federally funded activities regarding the siting
itself AND in the NEPA process concerning the industrial
siting, directly affects Plaintiff and the public
interest, as well, through the detrimental effects of
having bad or missing information and analysis on public
decisionmaking.
(Id. at 3-4.)
This analysis is inadequate to provide Plaintiff with standing
to litigate any portion of his NEPA claims, as one cannot base
standing on a generalized interest that the law be properly
executed.
See, e.g., Hein v. Freedom from Religion Found., 551
U.S. 587, 599-600, 127 S. Ct. 2553, 2563, 168 L. Ed. 2d 424 (2007)
(taxpayers lack standing to sue to ensure that public funds are
spent in a constitutional manner); Lance v. Coffman, 549 U.S. 437,
441-42, 127 S. Ct. 1194, 1198, 167 L. Ed. 2d 29 (2007) (voters lack
standing to challenge a redistricting plan); Lujan, 504 U.S. at
576-77, 112 S. Ct. at 2144-45 (rejecting standing to sue based on
“the
public
interest
in
proper
14
administration
of
the
laws
(specifically, in agencies’ observance of a particular, statutorily
prescribed procedure)”).
individualized injury.
Instead, a plaintiff must allege some
Sierra Club v. Morton, 405 U.S. 727, 735,
92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636 (1972).
Thus, the Amended
Complaint alleged that Plaintiff owns land near the Megasite and
Solar Farm and regularly spends time in and enjoys the natural
features of the area. (D.E. 5 ¶¶ 48-49, 53-55.) Those allegations
are sufficient for standing to raise most NEPA claims.
See, e.g.,
Summers v. Earth Island Inst., 555 U.S. 488, 494, 129 S. Ct. 1142,
1149, 173 L. Ed. 2d 1 (2009).
The parties had not addressed whether, by virtue of having
general NEPA standing, Bullwinkel is entitled to challenge the
Title VI analysis in the environmental assessments at issue. It is
unnecessary to resolve this issue in connection with the motions to
dismiss filed by the State of Tennessee, the State Official
Defendants, and the University of Tennessee Defendants because the
law is clear that Plaintiff's claims against those parties must be
dismissed for the reasons stated infra.
The Court DENIES the
motion to dismiss for want of standing the claims challenging the
adequacy
of
the
analysis
of
the
Title
VI
issues
in
the
Environmental Assessment under NEPA.
Therefore, the Court GRANTS IN PART AND DENIES IN PART the
motions
to
dismiss
Plaintiff's
Title
VI
claims
for
lack
of
standing, pursuant to Federal Rule of Civil Procedure 12(b)(1).
15
Plaintiff's freestanding Title VI claims are DISMISSED WITHOUT
PREJUDICE for want of standing.7
The State of Tennessee and the State Official Defendants also
argue that Plaintiff’s claims arising from the failure to undertake
a Title VI analysis under applicable agency regulations arises
under NEPA.
(D.E. 171-1 at 7.)
The Court has held that there is
no private right of action under NEPA and the APA against the State
of Tennessee and any state actor.
This argument is well taken.
Plaintiff’s claims for failing to undertake the Title VI analysis
required by NEPA and the APA are DISMISSED pursuant to Rule
12(b)(1)
as
to
the
State
of
Tennessee,
the
State
Official
Defendants, and the University of Tennessee Defendants.
The moving Defendants also argue that the Amended Complaint
and More Definite Statement do not allege a viable claim under
Title VI.
(D.E. 170-1 at 3-6; D.E. 171-1 at 6-7.)
This issue is
presented under Rules 12(c) and 12(b)(6) of the Federal Rules of
Civil Procedure. A motion for judgment on the pleadings under Rule
12(c) is analyzed using the standards applicable to Rule 12(b)(6)
motions.
Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012);
Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 846 (6th Cir.
7
It is unnecessary to address the argument raised by the State
Official Defendants about the availability of retrospective relief to remedy
violations of Title VI arising from improper use of PVE funds to purchase
property for the Solar Farm. (D.E. 171-1 at 7-7.) In previous orders, the Court
dismissed Plaintiff’s claims about improper use of PVE funds to make land
purchases as barred by the Eleventh Amendment. (See D.E. 130 at 4 n.2, 5-6 (“The
misuse of such [PVE] funds appears in Cause of Action 5 of the amended complaint,
which arises under NEPA and the APA. Plaintiff’s NEPA and APA claims against the
State and the State Official Defendants were previously dismissed” as barred by
the Eleventh Amendment).) Although the Eleventh Amendment bar does not extend
to any Title VI claim arising from the use of PVE funds to purchase land,
Bullwinkel lacks standing to litigate that claim.
16
2012), reh’g denied (May 25, 2012).
In assessing whether the
complaint in this case states a claim on which relief may be
granted, the Court applies the standards under Rule 12(b)(6) as
stated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
“Accepting all well-
pleaded allegations in the complaint as true, the Court considers
the factual allegations in the complaint to determine if they
plausibly suggest an entitlement to relief.”
Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks
omitted); see also McGlone v. Bell, 681 F.3d 718, 728 (6th Cir.
2012) (applying same standard to Rule 12(c) motion).
“[P]leadings
that . . . are no more than conclusions[] are not entitled to the
assumption of truth.
While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.”
Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950; see also
Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at 1965 n.3 (“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.
Without some factual allegation in the
complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of
the claim, but also ‘grounds’ on which the claim rests.”).
Section 601 of Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d, provides that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be
17
subjected to discrimination under any program or activity receiving
Federal financial assistance.”
Section 602, 42 U.S.C. § 2000d-1,
provides in relevant part that “[e]ach Federal department and
agency which is empowered to extend Federal financial assistance to
any program or activity, by way of grant, loan, or contract . . . ,
is authorized and directed to effectuate the provisions of section
2000d of this title with respect to such program or activity by
issuing
rules,
regulations,
or
orders
of
general
applicability . . . .”
Private individuals may sue to enforce § 601 of Title VI.
Alexander v. Sandoval, 532 U.S. 275, 279, 121 S. Ct. 1511, 1516,
149 L. Ed. 2d 517 (2001).
However, the law is clear that § 601
prohibits only intentional discrimination.
Id. at 280-81, 121 S.
Ct. at 1516 (collecting cases). Plaintiff’s Amended Complaint, and
his
More
Definite
discrimination.
Statement,
do
not
allege
intentional
(See, e.g., D.E. 5 ¶ 64 (“the possible multiple
detrimental and disparate effects of the West Tennessee Megasite on
the adjoining minority community”).)
Instead, Plaintiff’s claims,
which are based on the premise that various agencies failed
adequately to consider the impact of environmental effects on
minority communities when performing their NEPA analysis, are
disparate-impact claims that are not actionable under § 601.8
“[R]egulations promulgated under § 602 of Title VI may validly
proscribe activities that have a disparate impact on racial groups,
8
It is unclear whether the freestanding Title VI land-purchase claims
are based on intentional discrimination or disparate impact. In either case,
those claims have been dismissed for want of standing.
18
even
though
such
activities
are
permissible
Sandoval, 532 U.S. at 281, 121 S. Ct. at 1517.
under
§
601.”
The regulations
cited in Plaintiff’s More Definite Statement require agencies to
evaluate possible disparate impacts of proposed projects. However,
there is no private right of action to enforce compliance with
regulations promulgated under § 602.
Id. at 293, 121 S. Ct. at
1523.
In
his
response,
Bullwinkel
acknowledges
the
holding
in
Sandoval but argues that the decision, in effect, “giv[es] State
applicants defacto [sic] immunity from a law that specifically
denies them Eleventh Amendment immunity.”
Plaintiff is mistaken:
(D.E. 183 at 10).
States and State agencies, like any other
party, can be sued under § 601 for intentional discrimination.
No
party can be sued on a disparate-impact theory under § 602.
Therefore, the Court GRANTS the motions to dismiss Plaintiff’s
claims
against
the
State
of
Tennessee,
the
State
Official
Defendants, and the University of Tennessee Defendants under Title
VI of the Civil Rights Act of 1964 and the regulations promulgated
thereunder pursuant to Federal Rules of Civil Procedure 12(b)(6)
and 12(c).
Those claims are DISMISSED WITH PREJUDICE.
Because all claims against the State of Tennessee, the State
Official Defendants, and the University of Tennessee Defendants
have been dismissed, the Clerk is directed to dismiss them as
parties to this action.
19
IT IS SO ORDERED this 31st day of January 2013.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?