Sixth Circuit Affirms Dismissal of NEPA Suit Against TVA for Lack of Standing

In Friends of Tims Ford v. the Tennessee Valley Authority, (6th Cir., No. 08-5706, November 6, 2009), the Sixth Circuit today affirmed the dismissal of a suit brought by a group of concerned citizens living near the Tim's Ford reservoir in central Tennessee. The Friends of Tim's Ford (FTF) group objected to a plan by the TVA to transfer land surrounding the reservoir to private developers for permanent residential development, and allow the construction of additional piers, docks, and a marina on the reservoir. The group alleged a variety of procedural failures under the National Environmental Protection Act (NEPA), as well as the TVA Act (the organic act that gave rise to the quasi-governmental authority).

In today's opinion, the Sixth Circuit affirmed the district court's dismissal below on the basis that FTF lacked standing to bring the suit. As the panel explained, slip op. at 12, "In the instant case, FTF alleges its members have suffered two types of injuries: (1) procedural injuries arising from the failure of TVA and TDEC to follow NEPA procedures; and (2) ongoing injuries to their aesthetic and recreational interests arising from environmental harm to the Reservoir caused by agency action in violation of NEPA and the TVA Act." The panel ruled that "FTF has failed to adequately plead a procedural injury, because it has failed to connect the procedural harm alleged in its complaint – the creation of a new land use classification in the [final environmental impact statement] without an environmental assessment, resulting in 'uninformed–rather than unwise–agency action' in violation of NEPA – to specific harm threatening particular FTF members." Id. at 14-15 (citing Robertson v. Methow Valley Citizens), 490 U.S. 332, 351 (1989). It seems that the group had affidavits as to harm suffered by members in one area near the projects, but that the procedural failure they alleged affected a different area. And the panel ruled that the plaintiffs failed to correctly plead their case that they suffered from ongoing harm from what TVA was doing, because they complained about the effects they suffered from docks that had already been built, and yet asked for future, injunctive relief in the form of preventing TVA from building more docks.

Without reading the record, it appears that this is might be a case of bad lawyering by FTF's legal team: They could probably have found folks to discuss harms they suffered from TVA decisions made without adequate process about their particular part of the area, or drawn stronger lines between TVA's decisions about a particular area and the harms their clients suffered--even in a different, adjoining area. They also should have drawn stronger lines between their demonstration of past harm, and the idea that the future harm they sought to enjoin would mean more of the same injury to their clients. OR, it could be that this panel (and the district court below) read the affidavits and pleadings in a less-than-generous manner.