Summary
The United States District Court for the Eastern District of Tennessee considers Plaintiffs’ motion to require the Tennessee Valley Authority to complete or supplement the administrative record in a NEPA and APA challenge to TVA’s decision to build the Kingston Gas Plant. The Court distinguishes completion of the record with materials considered by the agency from supplementation with extra-record evidence, applying a clear-evidence standard to completion and an exceptional-circumstances standard requiring a strong showing of bad faith to supplementation. The excerpt begins the Court’s analysis of whether contracts, expense records, and financial modeling materials were properly included in the administrative record.
Topics
Practice areas
Questions Presented
- What standard governs a request to complete an administrative record with materials allegedly before the agency decisionmaker?
- What standard governs a request to supplement the administrative record with materials not considered by the agency?
- Did plaintiffs present clear evidence that the GE contract, ETNG Precedent Agreement, or TVA's underlying financial and systems analysis was considered by TVA and omitted from the administrative record?
- Did plaintiffs establish that specified expense records were considered by TVA and omitted from the record?
- Did plaintiffs make the strong showing of bad faith necessary to obtain supplementation or extra-record discovery concerning alleged NEPA predetermination?
Holdings
- Completion of an administrative record is distinct from supplementation and applies when the plaintiff seeks materials that were before the agency decisionmaker. The agency's designation is presumed regular, but the presumption may be overcome by clear evidence that materials considered directly or indirectly were omitted.
- A party seeking to supplement the administrative record with material not considered by the agency must show exceptional circumstances and make a strong showing of bad faith. Supplementation may also be warranted for deliberate or negligent exclusion or necessary background information, but bad faith is a conjunctive requirement in the circumstances presented here.
- Plaintiffs established by clear evidence that TVA's unredacted December 2022 GE contract was considered directly or indirectly by the decisionmaker and therefore must be added to the administrative record.
- Plaintiffs established by clear evidence that TVA indirectly considered the unredacted ETNG Precedent Agreement, and the agreement must be added to the administrative record.
- Plaintiffs did not establish that the requested records of expenses were sufficiently identified or considered by TVA, so the requests to add those records to the administrative record were denied.
- The underlying source data used to generate the financial and systems analysis in Appendix B of the EIS must be added to the administrative record, although the proprietary modeling software itself need not be included.
- Plaintiffs failed to make the strong showing of bad faith required for supplementation or extra-record discovery. The existence of tentative, contingent contracts and the agency's alleged predetermination did not satisfy that standard.
Key quotations
“Completion applies when a plaintiff argues that there was evidence before the decisionmaker that is not in the record.” (II)
“If parties seek to add documents or materials that were not considered by the decisionmaker, a party must show “exceptional circumstances,” under which the reviewing court may exercise its discretion to expand or supplement the administrative record.” (II)
“Agency consideration is a touchstone of a motion to complete the record–the addition of relevant documents that were considered, directly or indirectly, by the agency decisionmaker at the time of the decision are part of the record.” (III.A)
“In supplementation cases, the plaintiff “must make a strong showing of bad faith.”” (III.B)
Factual background
TVA announced in 2021 that it would retire the coal-fired units at the Kingston Fossil Plant in Tennessee. After preparing and publishing an Environmental Impact Statement in February 2024, TVA issued a Record of Decision in April 2024 adopting the preferred alternative of constructing the Kingston Gas Plant. Plaintiffs alleged that TVA had committed to the gas plant before completing its NEPA review and that the decision was arbitrary and capricious. They identified contracts, expense records, financial modeling data, and other documents that they claimed were omitted from or should be added to the administrative record.
Procedural history
Plaintiffs challenged TVA's decision to build the Kingston Gas Plant after TVA issued an Environmental Impact Statement and Record of Decision. TVA filed the administrative record. Plaintiffs then moved to require completion or supplementation of that record. The district court granted the motion in part as to certain documents and underlying financial-analysis data, denied completion as to unspecified expense records, and denied supplementation and extra-record discovery.