Conn. v. American Electric, Memo in Support of Motion to Dismiss ...

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including Federal discretionary function grounds. This memorandum of law is submitted in support of TVA’s motions on Federal discretionary function grounds. In the first case (No. 04-CV-05669), the State of Connecticut, seven other states, and the City of New York allege that global warming is a public nuisance under Federal common law and under the separate laws of the states in which Defendants operate. In the second case (No. 04-CV-05670), three private entities allege that global warming is a public nuisance under Federal common law, and a public and private nuisance under the separate laws of the states where Defendants operate. As described in more detail below, TVA is an agency and instrumentality of the United States created by the TVA Act of 1933, and is charged by the TVA Act with carrying out various Federal statutory functions, including the operation of Federal electric power generating facilities in the Tennessee Valley region. As alleged in the complaints, TVA operates fossil-fired electric power generating facilities in Alabama, Kentucky, Mississippi, and Tennessee. Plaintiffs do not allege that TVA has violated any restrictions on carbon dioxide emissions under the Federal Clean Air Act or any other Federal statute or regulatory scheme. Nor do Plaintiffs allege that TVA has violated the TVA Act by utilizing fossil-fired facilities to generate electric power in the Tennessee Valley region. Nevertheless, Plaintiffs ask this Court to exercise common law authority to dictate to TVA how to carry out its Federal statutory obligations. TVA’s position is that Plaintiffs’ effort to have this Court sit as a common law regulator of TVA’s statutory activities is legally precluded because the TVA Act vests authority and discretion in TVA’s Board of Directors to conduct TVA’s statutory activities to accomplish the purposes of the TVA Act. 2
TVA Is an Agency and Instrumentality of the United States. TVA is a constitutionally authorized 1 corporate agency and instrumentality of the United States, 2 created by and existing pursuant to the TVA Act of 1933, as amended, 16 U.S.C. 1 See, e.g., Ashwander v. TVA, 297 U.S. 288, 338-39 (1936) (upholding TVA Act against constitutional challenge relating to power sales by TVA); Goodpasture v. TVA, 434 F.2d 760, 763 (6th Cir. 1970) (“The TVA Act is constitutional.”); United States ex rel. TVA v. Three Tracts of Land, Etc., 377 F. Supp. 631, 635 (N.D. Ala. 1974) (“It is the Court’s opinion that the construction of a nuclear powered steam plant is authorized by the TVA Act and that the authorization is not in violation of the United States Constitution.”); United States ex rel. TVA v. An Easement & Right-of-Way Over Two Tracts of Land, Etc., 246 F. Supp. 263, 270 (W.D. Ky. 1965) (“TVA’s . . . integrated system of multipurpose dams, steam plants, and transmission lines, which together improve navigation, help control floods, produce power, and serve generally to develop the Tennessee River watershed are authorized by the commerce clause of the Constitution . . . .”), aff’d “for the reasons stated and upon the authorities set forth in the opinion of the district court,” 375 F.2d 120, 121 (6th Cir. 1967). 2 See, e.g., 16 U.S.C. § 831r (2000) (denoting TVA to be “an instrumentality and agency of the Government of the United States”); Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 134 (1939) (referring to TVA as “an instrumentality of the United States”); Ashwander v. TVA, 297 U.S. 288, 315 (1936) (referring to TVA as “an agency of the federal government”); Hill v. United States Dep’t of Labor, 65 F.3d 1331, 1333 (6th Cir. 1995) (TVA is “a wholly-owned corporate agency and instrumentality of the United States . . . .”); Springer v. Bryant, 897 F.2d 1085, 1089 (11th Cir. 1990) (“The TVA is a federally owned corporation that acts as an agency or instrumentality of the United States.”); TVA v. Kinzer, 142 F.2d 833, 837 (6th Cir. 1944) (“It [TVA] is plainly a governmental agency or instrumentality of the United States.”); Posey v. TVA, 93 F.2d 726, 727 (5th Cir. 1937) (“[T]he Authority is plainly a governmental agency of the United States . . . .”). Because TVA is an agency of the United States, its employees are Federal employees (see, e.g., Jones v. TVA, 948 F.2d 258, 262 (6th Cir. 1991) (“Jones was a federal employee during his tenure with TVA.”); Hill v. TVA, 842 F. Supp. 1413, 1416 n.2 (N.D. Ala. 1993) (“TVA employees are regarded as federal employees in the excepted service under [the Civil Service Reform Act].”); McNabb v. TVA, 754 F. Supp. 118, 120 (E.D. Tenn. 1990) (“McNabb was a federal employee when he worked for TVA.”)), and they are entitled to federal official immunity. See, e.g., Quality Tech. Co. v. Stone & Webster Engg. Co., 745 F. Supp. 1331, 1343 (E.D. Tenn. 1989) (holding TVA’s manager of nuclear power to be entitled to Federal official immunity), aff’d, 909 F.2d 1484 (6th Cir. 1990); Johns v. Pettibone Corp., 843 F.2d 464, 466-67 (11th Cir. 1988) (affirming district court holding that the defendant TVA employees, six managers and supervisors in power production and construction, were entitled to Federal official immunity). 3
Page 1 and 2: UNITED STATES DISTRICT COURT SOUTHE
Page 3: UNITED STATES DISTRICT COURT SOUTHE
Page 7 and 8: The authority to exercise all of TV
Page 9 and 10: and provide recreational opportunit
Page 11 and 12: of the scientific research relating
Page 13 and 14: impacts, debt, and economic develop
Page 15 and 16: dictates a specific course of actio
Page 17 and 18: In this regard, the holding in Morr
Page 19 and 20: We need spend little time discussin
Page 21: Id. at 798. See also Ferris v. Wilb

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