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

J. DANIEL BREEN, District Judge.

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.) For the reasons stated herein, the motion is GRANTED. 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. (D.E. 85.) The TVA Defendants filed a reply on November 3, 2011. (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). 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, 630-31 (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. (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

(Id. ¶¶ 3-4.)

Bullwinkel also sued the TVA because of its involvement in the Welcome Center and Solar Farm.4 TVA plans to purchase the power produced by the Solar Farm. (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:

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 procedures ("TVA NEPA Procedures").5 With the approval of the CEQ, TVA enacted twenty-eight 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, D.E. 77.) The categorical exclusions include "[t]echnical and planning assistance to State and local organizations" (TVA NEPA Procedures § 5.2.2, TVA AR 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 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:

28. The TVA concluded:

(TVA AR 4-5.)27

(D.E. 79-1 at 3.)31

The TVA Defendants first argue that Plaintiff's claims about the megasite program and certification are moot. (D.E. 76-2 at 7-8.) This argument challenges the Court's subject-matter jurisdiction over the first claim in the amended complaint.32 "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 that does not affect the rights of the litigants."). 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. 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.) He has identified no ongoing effort to certify new megasites. 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. (D.E. 76-2 at 8.) That argument is not persuasive. 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. The West Tennessee Megasite remains on the market, and the TVA's efforts to market that site are ongoing. (See FF 16, 18; Adams Decl. ¶ 12.) 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. Count 1 is DISMISSED insofar as it seeks to enjoin the 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.)

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 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.) The sole specific example of that marketing mentioned in the proposed factual findings is the inclusion of the Megasite on two TVA websites. (FF 16.) 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).

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. (FF 18.) Until there is a specific proposal, the magnitude of any environmental effects from industrial development of the Megasite cannot be assessed. (Adams Decl. ¶ 13.) 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.) NEPA is essentially a procedural statute. 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). "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:

Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) (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 not to prepare an EIS); Burkholder v. Peters, 58 Fed.Appx. 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:

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 (1990).

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:

(Id. ¶ 6.)

In his response, Bullwinkel suggests that Loney's analysis of the MSC contract was "belated" and a "past tense conclusory opinion." (D.E. 85-1 at 7.) It is unclear whether he contends that Loney did not actually analyze the contract in 2004. Plaintiff did not contest FF 9. 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 of contemporaneous written documentation for his conclusions. (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

(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. As the TVA Defendants have pointed out, the MSC contract, in and of itself, had no effect on the physical environment. (D.E. 88 at 8.)

Loney explained his decision that the certification and marketing of the West Tennessee Megasite did not require an EIS or an EA as follows:

(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. Five of those sites have been sold. 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." (Nicholson Decl. ¶ 7.)

Again, Plaintiff 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 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.)

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).

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:

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 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. 76-2 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. (FF 25-28.) TVA's FONSI was contingent on the State of Tennessee's adherence to a mitigation plan developed by DOE. (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). TVA's analysis of the MSC contract occurred in 2004. 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 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:

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.

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:

(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.

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.

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

Before the Court is the request of Plaintiff, Gary Bullwinkel, "for Relief from Summary [Judgment] and Dismissal of TVA and Denial of Request for [Second] Amended Complaint." (Docket Entry ("D.E.") 168.) For the reasons that follow, the motion is DENIED.

In an order issued on August 13, 2012, the Court granted summary judgment to the Tennessee Valley Authority ("TVA") Defendants1 and terminated them as parties to this action. (D.E. 159.) That order held that Plaintiff's request to enjoin TVA's megasite certification program was moot (id. at 724) and that TVA fulfilled its obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., for both the West Tennessee Megasite and the Solar Farm (id. at 725-31).2 Another order issued on August 13, 2012 denied Plaintiff's motion for leave to file a second amended complaint. (D.E. 160.)

On August 22, 2012, Bullwinkel submitted a pleading seeking relief from the summary judgment as to TVA and from the denial of permission to file a second amended complaint. (D.E. 168.) The TVA Defendants responded to the motion on September 10, 2012. (D.E. 176.) On September 17, 2012, additional responses were received from the University of Tennessee Defendants (D.E. 180)3 and the State of Tennessee and the State Official Defendants (D.E. 179).4

Because no final judgment has been entered, Plaintiff's motion is properly considered under Federal Rule of Civil Procedure 54(b)5, rather than under Rule 60(b). Rule 54(b) motions must comply with this Court's Local Rule 7. 3, which provides as follows:

Plaintiff's motion applies the wrong legal standard, although new evidence and legal error by the Court can be addressed under both Rules 54(b) and 60(b). The Court will, therefore, attempt to address Plaintiff's motion under Rule 54(b). The rule does not contain an equivalent to Rule 60(b)(3), which encompasses misrepresentation, unless Plaintiff can demonstrate the existence of newly discovered evidence. Rule 54(b) also does not allow motions for reconsideration that do not fall within the three enumerated categories but are, instead, based on "[t]he need to prevent manifest injustice." (See D.E. 168 at 5.)

In his motion, Bullwinkel asserts the existence of new material facts, namely, the posting on the TDOT website of "information concerning TVA's continuing role in the West Tennessee Megasite and [Federal Highway Administration ("FHWA") ] funding of another Megasite project" (D.E. 168 at 1), namely, a plan to upgrade Exit 42 on Interstate 40 in Haywood County, near the West Tennessee Megasite (id. at 1-2). According to Plaintiff, these plans, which "us[e] mostly Federal funds," "controvert Defendant affidavit statements that denied knowledge of any Megasite development." (Id. at 2.) He also refers to a "D-List Categorical Exclusion" for the upgrade, which was accepted and signed by the FHWA. (Id.) Plaintiff asserts that "[t]he project scope section of this official document identifies the project as using Federal funds targeted specifically for the WTN Megasite in support of the TVA Megasite program." (Id.)

Bullwinkel also contends that the TVA Defendants submitted misleading affidavits to mask the TVA's role in marketing the Megasite. (Id. at 3-5.) The documents on the TDOT website

(Id. at 4.) According to Plaintiff, the existence of the cited documents on the TDOT website, some of which are several years old, demonstrate that the administrative record is incomplete and provide cause to vacate the summary judgment for the TVA Defendants. (Id. at 5.)6

Plaintiff's motion provides a link to the relevant section of the TDOT website,7 titled Design-Build/Details of Proposed Contract DB1201:1 I-40 at S.R. 222 (Exit 42) Fayette County, which provides thirty (30) documents concerning that project. He relies on a memorandum from the TDOT Environmental Division to the FHWA, dated June 14, 2012, titled D-List Categorical Exclusion.8 The document describes the purpose and need for the project as follows:

(D-List Categorical Exclusion at 2.) The project "consists of rebuilding the SR-222 bridge at the same location on the same skew angle.... [T]he I-40 eastbound interchange intersection [will be] relocated approximately one hundred fifty (150) feet closer towards I-40, and the separate roadway connection providing access to the Pilot Travel Center and other destinations on the south side of I-40 [will be] eliminated." (Id. at 6.)9 The TDOT recommended that "this project be classified as Categorical Exclusion under the provision of 23 CFR, 777.117(d)." (Id. at 14.)10 The FHWA concurred on June 19, 2012. (Id.)

Bullwinkel's request for reconsideration of the two orders issued on August 13, 2012 on the basis of "new evidence" (D.E. 168 at 2-3) may arise under Rule 54(b)(1) and (2). It does not appear that he is entitled to relief under Rule 54(b)(2) because he has not demonstrated "the occurrence of new material facts ... occurring after the time of" the orders at issue. See LR7.3(b), Local Rules. The "D-List Categorical Exclusion" was approved by the FHWA on June 19, 2012, two months before the orders issued.

Rule 54(b)(1) also does not provide Plaintiff relief because his motion does not disclose when he learned of the new facts presented in his motion and does not address whether, in the exercise of reasonable diligence, he could not have known about the facts at the time of the orders.11 The State of Tennessee and the State Official Defendants have represented that they initiated the relevant website in April 2012 and have "attempted to timely update it and expeditiously post documents." (D.E. 179 at 5.)

Plaintiff's filings in this action suggest that he was aware of much of his "new evidence" before the Court granted the motion for summary judgment filed by the TVA Defendants and denied leave to amend. He responded to the summary judgment motion on October 18, 2011 by emphasizing the steps taken by the TVA to market the Megasite. (D.E. 85.) Plaintiff noted that TVA's 2004 contract with McCallum Sweeney Consulting ("MSC") stated that "[c]ertified 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 construction within six (6) months or less after being chosen for development." (Id. at 4 (citing Decl. of Billy L. Adams, Jr., dated Sept. 22, 2011 ("Adams Decl."), Ex. 1 at 2, D.E. 79-1).) As Plaintiff pointed out (id. at 6; D.E. 85-1 at 5-6), a supplement was added to the MSC Contract stating that, "[a]s part of its marketing materials for [two certified megasites other than the West Tennessee Megasite], TVA would like to include conceptual plant layouts to present to its prospects. Similarly, TVA would like to prepare site development cost estimates to be better prepared to respond to potential automotive clients." (Adams Decl. Ex. 1 at 84.) TVA "propose[d] to identify required improvements," including "[r]oads or other needed highway improvements." (Id. at 85.) The Court took these facts into account when it granted summary judgment to the TVA Defendants. (D.E. 159 at 719 n. 11 ("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 [the TVA] relies. There is no factual dispute that it was hoped that the megasites would attract industry.")).12

On May 29, 2012, Bullwinkel submitted his motion seeking leave to file a second amended complaint, accompanied by his proposed pleading. (D.E. 147.) The filing makes clear that he was aware of the interchange upgrade project before the summary judgment order issued. Paragraph 67 of Plaintiff's proposed second amended complaint stated that, "[i]n May 2009, TVA requested Tennessee ECD to begin the planning and coordination of at least five connected Megasite infrastructure developments including but not limited to: an Interchange Modification Study (IMS) regarding the interchange of Interstate 40 and State Route 222 (Exit 42)...." (D.E. 147-1 at 13.) The proposed second amended complaint also alleged that, in May 2009, "TVA hire[d] SSOE, Inc., an engineering firm, to prepare a detailed Conceptual layout for the West Tennessee Megasite infrastructure portion of the project, including the five projects listed above ...." (Id. ¶ 68.) In February 2012, "Tennessee post[ed] Requests for Qualifications for Design/Build Contractors for the purpose of improving the Exit 42 Interstate interchange for future Megasite access and traffic." (Id. ¶ 102.) He has not explained why he did not seek to amend his response to the TVA Defendants' motion for summary judgment to present this new information and to explain its relevance to his claims. Therefore, Plaintiff's motion for reconsideration of the summary judgment order is not warranted by Rule 54(b)(1).

Bullwinkel's motion is also confusing because he has made no attempt to tie the new evidence he seeks to present to the specific claims against the TVA included in his amended complaint. As was discussed in the order granting the TVA Defendants' motion for summary judgment, count 1 of the amended complaint sued the TVA under NEPA and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-05, because of its use of categorical exclusions in the megasite certification program in general and, specifically, on the West Tennessee Megasite. (See D.E. 159 at 716-17.) Count 12 of the amended complaint appears to assert a claim against the TVA arising from its 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. (See id. at 716-17.) The Court made extensive factual findings based on the affidavits submitted by the parties. (See id. at 718-23.) Plaintiff's motion does not identify any specific finding he contends is inaccurate in light of the documents posted on the TDOT website.

Plaintiff's new evidence does not appear to pertain to those portions of count 1 arising from TVA's megasite certification program, which were dismissed as moot (see id. at 724), or his challenge to the TVA's certification of the West Tennessee Megasite, which occurred in 2006 (see id. at 720 (Factual Finding ("FF") 15)). His new evidence also does not appear to relate to claim 12 against the TVA Defendants arising from its agreement to purchase power generated by the Solar Farm. The motion barely mentions the Solar Farm.13

Plaintiff's motion for reconsideration can perhaps be construed as challenging the Court's ruling pertaining to the TVA's marketing of the West Tennessee Megasite. In its order granting summary judgment to the TVA Defendants, the Court reviewed the TVA's conclusion that the marketing of the Megasite did not require an environmental impact statement or an environmental assessment under the deferential "abuse of discretion" standard. (See D.E. 159 at 728-29.) NEPA review was not triggered by TVA's marketing activities because those activities did not involve any physical impacts to the environment. (See id. at 728-29.)

Bullwinkel has not explained how the proposed modification to the I-40 interchange invalidates the order granting summary judgment to the TVA Defendants. The language in the June 14, 2012 D-List Categorical Exclusion, which was not drafted by the TVA, states, at most, that TVA recommended that the State agencies proceed with upgrading that freeway exit. Even if the D-List Categorical Exclusion, which was approved by the FHWA on June 19, 2012, is reviewable under NEPA and the APA, it is unclear what claim Plaintiff might have against the TVA Defendants.14 Plaintiff's motion for reconsideration of the order granting summary judgment to the TVA Defendants is DENIED.

Although Plaintiff's proposed second amended complaint refers to steps taken to upgrade the infrastructure near the West Tennessee Megasite, his motion for leave to file a second amended complaint was filed two weeks before the issuance of the D-List Categorical Exclusion. Therefore, the proposed pleading contained no claim under NEPA and the APA for review of that exclusion. For that reason alone, it is unclear why Plaintiff is filing a motion for reconsideration of the order denying leave to file that proposed pleading. His motion for reconsideration does not discuss any specific statement in the Court's order denying leave to amend that is called into question by the purportedly new evidence. Plaintiff's motion seeking leave to amend did not highlight the infrastructure projects, including the renovation of Exit 42, that is the subject of the instant motion and, consequently, those projects were not discussed in the Court's order. As previously mentioned, Plaintiff also has not satisfied the requirements of Rule 54(b)(1) or (2).

Bullwinkel claims the Court made a legal error by terminating the TVA Defendants as parties to the suit while the motion for leave to amend was pending. (D.E. 168 at 6.) The orders granting summary judgment to the TVA Defendants and denying leave to file a second amended complaint were both issued on August 13, 2012, and the order denying leave to amend did not rely on the grant of summary judgment to the TVA Defendants. Instead, the order stated that amendment would be futile because "the proposed second amended complaint reasserts ... previously dismissed claims." (D.E. 160 at 10.) When the Court ordered that the TVA Defendants be terminated as parties to this action, it was aware that the motion seeking leave to amend would be denied. Plaintiff's motion for reconsideration of the order denying leave to file the proposed second amended complaint is DENIED.

IT IS SO ORDERED.