United States ex rel. Tennessee Valley Authority v. Three Tracts of Land Containing a Total of 1,174 Acres More or Less

377 F. Supp. 631, 7 ERC 1060, 7 ERC (BNA) 1060, 1974 U.S. Dist. LEXIS 12267
CourtDistrict Court, N.D. Alabama
DecidedFebruary 13, 1974
DocketCiv. A. No. 72-462-NE
StatusPublished
Cited by3 cases

This text of 377 F. Supp. 631 (United States ex rel. Tennessee Valley Authority v. Three Tracts of Land Containing a Total of 1,174 Acres More or Less) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Tennessee Valley Authority v. Three Tracts of Land Containing a Total of 1,174 Acres More or Less, 377 F. Supp. 631, 7 ERC 1060, 7 ERC (BNA) 1060, 1974 U.S. Dist. LEXIS 12267 (N.D. Ala. 1974).

Opinion

MEMORANDUM OPINION

McFADDEN, Chief Judge.

This is a condemnation proceeding by the Tennessee Valley Authority (hereafter “TVA”) to condemn the respondents’ land as a part of an inventory of sites for electric generating plants. TVA has filed its declaration of taking to which the landowners have interposed multiple objections. The objections in essence are:

(1) The taking is not for a public use in that TVA does not have the statutory or constitutional authority to condemn the property to be used exclusively for the production of electric power to be sold by TVA;
(2) That the plaintiff has not complied with the National Environmental Policy Act of 1969.

The matter is before the Court on the motion of the Tennessee Valley Authority to strike the defenses and for summary judgment.

Defendants contend that the use to which the plaintiff seeks to put the property is not a public use as authorized by the Tennessee Valley Authority Act. Specifically they contend that the TVA Act and the United States Constitution does not authorize the condemnation of land for building of an electric generating plant to be used exclusively for the production of electric power to be sold by TVA.

[633]*633The land was condemned as a part of an inventory of sites for the future construction of electric generating plants and it is most likely that it was under consideration at the time of condemnation for the building of a nuclear plant since all of TVA’s advance planning is geared toward that concept. TVA contends that the acquisition of the site as a part of an inventory is necessary to insure its ability to carry out its functions.

What constitutes a public use should be determined in the first instance by the legislature, but the legislative determination is always reviewable by the courts who bear the ultimate responsibility for the decision. See 29A C.J.S. Eminent Domain § 30 (1965). However, there is a strong presumption in favor of the correctness of the legislative determination. These principles are acknowledged in the leading case of U. S. ex rel. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946). Justice Black’s majority opinion in that case emphasized Congress’ function to determine what is a public use and went on to say:

. whatever may be the scope of the judicial power to determine what is a “public use” in Fourteenth Amendment controversies, this Court has said that when Congress has spoken on this subject “Its decision is entitled to deference until it is shown to involve an impossibility.” [Cite omitted.] Any departure from this judicial restraint would result in courts deciding on what is and [what] is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.

327 U.S., at 552.

It appears therefore that this Court does have authority to and should review the question of public use, but the scope of its review should be constrained by a deference to the statutory intent of the TVA Act.

Section 4(i) of the TVA Act, 16 U.S. C. § 831c(i) provides that TVA:

Shall have power to acquire real estate for the construction of dams, reservoirs, transmission ' lines, power houses, and other structures . and to condemn all property that it deems necessary for carrying out the purposes of this Act .

A clear inference that the term “power houses and other structures” was intended by Congress to include steam plants is found in the express statutory authorization to issue bonds for the construction of steam plants. 16 U.S.C. § 831n. A district court in Tennessee held that a mere reading of 16 U.S.C. § 831c(i) is convincing evidence of Congressional authorization for TVA to build a steam plant. Rainbow Realty Company v. TVA, 124 F.Supp. 436 (M.D.Tenn. 1954); accord U. S. ex rel. TVA v. Easement and Right of Way, Logan Co., Ky., 246 F.Supp. 263 (W.D.Ky.1965), aff’d 375 F.2d 120 (6th Cir. 1967).

The proposed nuclear electric generating plant will be a steam plant as opposed to an electric generating plant whose turbines are turned by water power. Nowhere does the Act infer contemplation of a particular type of steam plant whether oil-fired, coal-fired, or nuclear reactor-fired. Clearly, the nuclear plant will be a steam plant and clearly TVA is authorized to construct steam plants.

Defendants contend nevertheless that under 16 U.S.C. § 831h-l which authorizes TVA to build electric generating plants at dams to use the power to support its own operations and to sell any surplus electric power to avoid waste and help liquidate the maintenance cost of the Authority clearly contemplates the building of electric generating plants only in conjunction with the hydro-electric plants. This section of the Act seems clearly to say that TVA should build dams for the primary purpose of controlling loads and navigation and not [634]*634for the sole purpose of building hydroelectric plants to sell power; but this section places no restriction other than by indirect reference on the lawful purposes for which steam plants may be built. Rather, 16 U.S.C. § 831n and § 831n-4, indicate that steam plants are to be constructed by TVA when they become necessary to discharge TVA’s broad responsibilities for the advancement of the national defense and the physical, social and economic development of the area and Congress further intends that TVA should provide an ample supply of electric power for such purposes. 16 U.S.C. § 831n-4(h). The cases cited above, Rainbow Realty Company v. TVA and U.S. ex rel. TVA v. Easement Right of Way, Logan Co., Ky., although deciding controversies over rights of way for transmission lines, addressed the issue of the legality of steam plants whose Oütput would be fed through these lines and held that such steam plants were authorized where they were planned and operated as part of TVA’s integral network of electric power distribution. It would appear that the plant to be built on this site if one is built there would be a part of TVA’s overall electrical network and that clearly TVA is authorized to build it.

It further appears to the Court that TVA would be authorized to build the plant even if it was to be used solely for the production of electricity for sale to others. A review of the history of TVA and the development of the Act clearly shows an intention on the part of Congress for TVA to fill a utility role that is not merely the sale of surplus power as a by product to its main function. Congress, in 1939, amended the Act to authorize the issuance of bonds to finance the acquisition of generating and transmission facilities of private utilities.

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377 F. Supp. 631, 7 ERC 1060, 7 ERC (BNA) 1060, 1974 U.S. Dist. LEXIS 12267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-tennessee-valley-authority-v-three-tracts-of-land-alnd-1974.