On November 17, the U.S. Court of Appeals for the Sixth Circuit decided the case of Sherwood, et al. v. Tennessee Valley Authority. The Court of Appeals reversed the lower court’s ruling that a complaint filed by many property owners that the Tennessee Valley Authority (TVA) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370m–12 (2012) (NEPA) was now moot because TVA had filed assurances with the lower court that the policy had been suspended.
TVA had implemented a new right-of-way vegetation maintenance policy, a policy which had the effect of cutting down all trees located in its right-of-ways capable of reaching 15 feet in height without conducting any kind of prior environmental review. In their complaint, the plaintiffs alleged that the TVA policy relied on the discretion of the TVA’s right-of-way specialists to determine whether any trees growing in the right-of-way needed to be cut down.
The Court of Appeals found that there was credible evidence that the policy was still being followed and has a “continuing effect.” It further held that the TVA must conduct a NEPA review of its tree cutting policy before reapplying the policy to any part of its right-of-ways. Moreover, the TVA must prepare an administrative record for the court to review (which it has not done), which could be comprised of whatever documentation the policy it possesses.
