In this entry, I am writing about Sherwood v. TVA, an appeal that I am handling and that is pending right now in the Sixth Circuit. (See http://www.vowell-law.com/cases-on-appeal/) We are now in the second appeal in the case. The case has generated huge public interest. If you simply google “TVA tree cutting” you will find endless articles from all over TVA’s 7-state region with titles like these: http://whnt.com/2013/02/01/huntsville-leaders-fight-tva-plans-to-cut-down-trees/ or http://theknoxvillejournal.com/tva-clear-cutters-bully-property-owners/ or http://www.timesfreepress.com/news/news/story/2012/apr/12/tva-tree-cutting-plan-riles-residents/75266/ or http://www.wrcbtv.com/story/18446524/homeowners-city-leaders-stand-up-against-tvas-tree-cutting-policy or http://wkrn.com/2014/07/25/tva-plans-to-cut-down-community-christmas-tree/.
In the lawsuit, the Plaintiffs, a group of landowners from all over Tennessee, are challenging TVA’s attempt to remove virtually all of the millions of trees in its 15,900 mile right-of-way, including the elimination of its historic buffer zones on the edges of the right-of-way, for the first time in its 76-year history, without preparing the environmental impact statement that is mandated by Federal law. The District Court dismissed the Plaintiffs’ challenge to this unlawful activity, and the Plaintiffs appealed and won, forcing TVA to announce that it had suspended the policy, and reverted to its prior practices. The second appeal, now pending, questions whether TVA really has suspended the 15-foot rule and reverted to its prior practices or whether, to the contrary, it is continuing to clear-cut the right-of-way and eliminate the buffer zones and virtually all of the trees in the wire zone, the area directly under the wires.
TVA called its new policy the “15-foot rule,” meaning that it was going to eliminate every tree in its right-of-way that was either 15 feet tall or might ever grow to be 15 feet tall. That would obviously include every tree in the right-of-way (other than exotic species like Japanese maples), because every native tree in TVA’s 7-state region, including dogwoods and crepe myrtles, has the potential to reach 15 feet tall at maturity. TVA’s own documentation states that the 15-foot rule would remove “virtually all” of the trees in its right-of-way, which would be a complete and total clear-cut of its right-of-way for the first time in its 76-year history, including the destruction of vast numbers of 100-year-old trees that had been left standing when TVA initially installed the power lines beginning in the 30’s. The impact of this new policy was enormous. The TVA right-of-way is 15,900 miles long and usually 200 feet wide. It would stretch from New York to Los Angeles six or seven times. The area to be clear-cut is 406 square miles, approximately half the size of the Great Smoky Mountains National Park. That is a vast forest of trees to be destroyed, countless millions of trees. The cost of the project was enormous, $10,000-$12,000 per mile, according to TVA, or $159,000,000 to nearly $20,000,000 for the entire 15,900 mile right-of-way, a project so large that even with a multitude of cutting crews in operation, it would take 5-6 years to complete, according to TVA estimates.
The 15-foot rule would wipe out millions of trees in the “wire zone” (the area directly under the wires) as well as a vastly greater number of trees in the “buffer zones” (the areas at the edges of the right-of-way). When TVA originally installed the lines, beginning in the 1930’s, it removed just enough of the trees to allow for construction of the lines and a safe distance between the wires and the remaining trees. That safe distance is about 15 feet according to current TVA documentation. TVA generally left at least a 25-foot buffer zone of trees growing at the outer edges of the right-of-way. But under its new policy, TVA was going to eliminate the historic buffer zones, including vast numbers of 100-year-old trees that had been left standing when it initially installed the lines.
The 15-foot rule has been a monumental ecological disaster. It is ironic that TVA, one of the leading burners of coal in the world, would, at the same time it is burning the coal, and putting vast amounts of carbon dioxide into the atmosphere and making a huge contribution towards global warming, eliminate millions of trees that, if left standing, would serve as a check on global warming. As far as global warming is concerned, removing millions of trees in the TVA right-of-way would have the same environmental effect as destroying an equal amount of trees in the Brazilian rain forest. But besides the horrendous effect on global warming, the elimination of the trees in the right-of-way poses an additional problems. Power line rights-of-way are excellent and abundant habitat for birds and other wildlife. With humankind taking over more and more of the globe, there is less and less habitat available for birds and other wildlife. These rights-of-way have become a refuge for birds and other wildlife. Besides the sheer destruction of this habitat, TVA has not even had the decency to suspend the policy during the spring nesting season. Instead it has continued to mow down the trees straight through what is now 5 spring nesting seasons, destroying millions of active bird nests and nests of other kinds of animals, killing vast numbers of baby birds and wildlife of all descriptions. Last but not least is the effect that the 15-foot rule has had on the thousands of people who own the land where the right-of-way is located. In its efforts to remove virtually all of the trees in the right-of-way, TVA has literally ruined the property of thousands of landowners along the right-of-way, destroying their shade trees and orchards, causing horrendous erosion problems and sedimentation of creeks and watersheds throughout the region, reducing property value across the region by millions of dollars.
That is a general description of TVA’s attempt to eliminate virtually all of the trees in its right-of-way, which is the subject matter of the lawsuit and of the current (second) appeal. This leaves several unanswered questions that I will address in future blog entries, including the following: 1) What in the world would motivate TVA to embark on such a seemingly senseless course of action? 2) Is TVA totally unconcerned about global warming, the destruction of wildlife habitat, and the ruination of the landowners’ property? 3) How could TVA have embarked on a course of action with such a vast environmental impact without submitting an environmental impact statement? 4) What excuse did TVA come up with once it became clear that it had not submitted an environmental impact statement? 5) Who at TVA made the decision to implement the new policy? 6) Why did the Federal district court (the trial court) initially dismiss the case, and allow TVA to proceed with the 15-foot rule, and why did the court of appeals reverse the trial court’s decision? 7) Is TVA continuing to remove virtually all of the trees in the right-of-way including the elimination of the historic buffer zones, even after announcing that it has suspended the 15-foot rule, and reverted to its prior practices?
