The coalition had initially filed a petition a with TVA on May 20, 2020, asking the utility to stop the payments. It alleged that TVA’s response was “arbitrary and capricious,” prompting them in turn to file the lawsuit last week, court records show.
“The Petition extensively documents both these third-party organizations’ activities and TVA’s financial support for them. For example, it details that many of these groups support political organizations and regularly lobby on issues that undermine the health and safety of TVA ratepayers. Other groups, such as the ‘Utility Water Act Group,’ regularly oppose environmental protections in courts and before agencies. TVA collectively pays these groups millions of dollars collected from TVA ratepayers through electricity sales,” the complaint filed in federal court states.
The coalition makes two separate arguments for requiring TVA to curtail its spending.
First, they claim that TVA’s support for the groups “contravenes its Congressional mandate to protect the health and welfare of the millions of people TVA serves and the environment in which they live.”
They maintain that “using TVA ratepayers’ funds to support political activities contravenes ratepayers’ First Amendment right against compelled subsidy of speech with which ratepayers disagree.”
Several of the environmental groups named individual members whose First Amendment rights are allegedly being violated by TVA, which is “forcing them to fund third-party groups engaged in activities they do not support,” records show.
CBD, for instance, listed University of Tennessee professor John Nolt and attorney Chris Irwin — both of whom are longtime environmental activists — as ratepayers who oppose TVA’s actions.
“TVA responded to the Petition by simply asserting that TVA’s funding for these third-party groups is appropriate, without at all responding to the substantial evidence and specific arguments included in the Petition, or even indicating that the Petition was being denied,” the lawsuit claims.
“TVA’s letter did not deny that, in addition to their research and analysis work, these third-party organizations regularly engage in lobbying, political contributions, and other advocacy activities—including opposing regulatory and other initiatives intended to protect human health, wildlife, and the environment,” according to the complaint.
“TVA’s letter acknowledges that ‘TVA ratepayers have the right to express their views and support preferred causes,’” the plaintiffs continued. “However, the letter did not explain how TVA’s use of TVA ratepayers’ funds to support trade associations and other third-party groups engaged in lobbying and other advocacy activities that TVA ratepayers do not support is consistent with TVA ratepayers’ First Amendment rights.”
The funding of EWAC was galling to some environmentalists, as its alleged environmental and legal intransigence has entered into the realm of threatening endangered species protection as it relates to energy production.
EWAC, for instance, filed a friend-of-the-court brief in Weyerhaeuser vs. U.S. Fish and Wildlife Service, a challenge to the Endangered Species Act that was eventually heard by the Supreme Court. The plaintiffs were successful and the case was remanded back to the appeals court for further consideration.
That suit contended the U.S. Fish and Wildlife Service had “…unlawfully designated an area in Louisiana as ‘critical habitat’ for the endangered dusky gopher frog (Rana sevosa) even though there is no occurrence of the species on those lands, that area cannot sustain the species, now or in the foreseeable future, and there is no connection to any area that is actually habitable by that species.”
“Critical habitat designations can affect the renewal of authorization for use of the federal lands, affecting existing infrastructure and constraining operation and maintenance of existing facilities on both private and public lands,” EWAC wrote in its brief supporting challenges to the Endangered Species Act that might inhibit the construction of energy infrastructure.
“There are real consequences for the nation’s electricity generation, transmission, and distribution infrastructure that will result from designating areas uninhabitable by a listed species as ‘critical habitat’ and from extending the protections of the ESA to those areas. Through this amicus brief, EWAC offers the Court a window into how the Fifth Circuit’s decision could disrupt the development and ongoing operation of its members’ facilities,” the brief continued.
“TVA ratepayers want energy freedom,” said Glen Brand, director of policy and advocacy for Solar United Neighbors. “TVA shouldn’t be using their money to take that freedom away. It should use that money to help them save money and take control of where their electricity comes from with rooftop solar energy. It shouldn’t be shoveling it to monopoly utility front groups like the Edison Electric Institute.”
A separate petition was filed early this year before the Federal Energy Regulatory Commission concerning the private utility funding of the groups listed in the lawsuit, according to a CBD press release.
“That petition, which is pending, would amend FERC’s Uniform System of Accounts to make these payments presumptively non-recoverable from ratepayers, which would force utilities to either demonstrate how funding these groups is in the public interest or provide this funding from shareholders rather than ratepayers,” the release said.