The federal district court in east Tennessee has found that TVA’s 2012 vegetation maintenance project for transmission line rights-of-way did not violate the National Environmental Policy Act (NEPA). NEPA requires federal agencies to take a “hard look” at the environmental consequences of projects before taking action. NEPA’s mandate typically requires federal agencies to prepare an environmental impact statement (EIS) or to make a finding of no significant impact (FONSI). However, if the project falls within a categorical exclusion, an agency need not implement this full NEPA analysis.
TVA determined that the 2012 vegetation maintenance program fell within the TVA’s categorical exclusion for “[r]outine operation, maintenance, and minor upgrading of existing TVA facilities.” The court found that this determination was not arbitrary and capricious and that TVA had complied with NEPA by sufficiently analyzing the project.
The court also found that NEPA review was not required for TVA’s 2012 internal guidance that defined “low growing trees” as those that will not exceed 15 feet at mature height. “Low growing trees” are a category of vegetation that was previously undefined and that TVA will not cut when in the right of way buffer zone. The court referred to this guidance as the “fifteen-foot rule” and stated that this is not a “new policy” but rather a stricter implementation of the existing vegetation management policy.
The fifteen-foot rule was not a part of the administrative record for TVA’s NEPA analysis of the 2012 vegetation maintenance project. The court found that the issue of whether NEPA analysis was required for the fifteen-foot rule was moot, because “TVA did not institute a new fifteen-foot policy.” However, a “major federal action” subject to NEPA is not limited to “new polic[ies]” but includes “new or revised agency rules, regulations, plans, policies, or procedures.” See 40 C.F.R. § 1508.18.
The case is Sherwood et al. v. Tennessee Valley Authority, U.S. District Court for the Eastern District of Tennessee Case No.: 3:12-CV-156. Please see “TVA Beats Challenge to Power Line Tree Maintenance,” by Andrew Scurria for further analysis.