Center For Biological Diversity v. Tennessee Valley Authority (TV2)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

CENTER FOR BIOLOGICAL DIVERSITY, )

ALABAMA CENTER FOR )

SUSTAINABLE ENERGY d/b/a/ )

ENERGY ALABAMA, )

APPALACIAN VOICES, )

SOLAR UNITED NEIGHBORS, )

SOUTHERN ALLIANCE FOR )

CLEAN ENERGY, and )

SOWING JUSTICE, )

)

Plaintiffs, )

)

v. ) No.: 3:21-CV-319-TAV-DCP

)

TENNESSEE VALLEY AUTHORITY, )

)

Defendant. )

MEMORANDUM OPINION

Before the Court is defendant Tennessee Valley Authority’s (“TVA”) motion to

dismiss [Doc. 14] and plaintiffs’ motion for summary judgment [Doc. 20]. With respect

to the motion to dismiss, plaintiffs filed a response [Docs. 21, 22],1 and TVA filed a reply

[Doc. 23]. With respect to the motion for summary judgment, TVA filed a response

[Doc. 27], and plaintiffs filed a reply [Doc. 29]. These motions are ripe for resolution. For

the reasons stated below, TVA’s motion to dismiss [Doc. 14] will be GRANTED and

plaintiffs’ motion for summary judgment [Doc. 20] will be DENIED.

1 Plaintiffs’ response is also their memorandum in support of their motion for summary

judgment.

I. Background

Plaintiffs are a collection of national and regional nonprofit organizations that

support environmental causes and conversion to renewable energy [Doc. 1 ¶¶ 10–21].

TVA is a United States agency created pursuant to the Tennessee Valley Authority Act of

1933, 16 U.S.C. § 831 et seq. [Id. ¶ 22]. “TVA is the nation’s largest public power

provider,” and it provides electricity primarily through local power companies that sell

TVA’s power to retail customers [Id. ¶¶ 29–30]. TVA is funded by revenues it generates

from selling electricity [Id. ¶ 31]. TVA is governed by a board of directors, and the

directors are each appointed by the President and confirmed by the Senate. 16 U.S.C.

§ 831a.

In February 2020, a number of organizations (the “Petitioners”) submitted to TVA

a rulemaking petition (the “Petition”), pursuant to the Administrative Procedure Act (the

“APA”) [Doc. 1 ¶¶ 32–33; Doc. 15-1]. The Petition details alleged anti-environmental

advocacy and other lobbying of various outside groups [Doc. 15-1 pp. 5–12]. Moreover,

the Petition asserts that TVA financially supports these groups by paying millions of dollars

in membership dues and fees which these groups use to engage in controversial lobbying

activity and litigation [Id. at 13–14]. The Petition claims that, given the outside groups’

“controversial activities, TVA’s financial support contravenes both TVA’s statutory

mission and ratepayers’ First Amendment rights” [Doc. 1 ¶ 34; see also Doc. 15-1 pp. 3–4,

14–21]. Thus, the Petition requests that TVA adopt a regulation prohibiting TVA from

providing funds to any outside group that “engages in litigation related to . . . governmental

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activities,” “attempts to influence legislative or executive action,” or “makes political

contributions” [Doc. 20-1 p. 67].

On May 21, 2020, TVA sent a letter (the “TVA Letter”) to plaintiff Center for

Biological Diversity stating that “TVA works with a variety of organizations to fulfill its

mission and comply with its legal responsibilities” [Doc. 15-2 p. 1].2 The TVA Letter

asserts that TVA holds memberships with outside groups and that “the collective expertise

and experience” these groups offer “cannot otherwise be replicated” and contribute to

TVA’s operational and economic efficiency [Id.]. While the TVA Letter acknowledges

the Petitioners’ interest in TVA, it does not mention the Petition or the requested regulation

[Id. at 1–2].

Accordingly, plaintiffs filed their complaint, which asserts two APA claims against

TVA on their own institutional behalves as well as on the behalves of their members

[Doc. 1 ¶¶ 10–21, 68–77]. First, plaintiffs claim the TVA Letter is an inadequate response

to the Petition and thus an “arbitrary and capricious agency action” in violation of the

APA [Id. ¶¶ 68–72]. Second, plaintiffs assert that TVA has “unreasonably delayed agency

action” in violation of the APA because the APA requires TVA to respond within a

reasonable time, yet TVA “has neither granted the Petition, nor informed Petitioners

that the Petition is denied” [Id. ¶¶ 73–77]. Inter alia, plaintiffs seek a court order

2 “In reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings

to resolve factual disputes concerning jurisdiction[.]” Nichols v. Muskingum Coll., 318 F.3d 674,

677 (6th Cir. 2003).

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finding TVA in violation of the APA and directing “TVA to provide a meaningful

response . . . .” [Id. at 19].

II. Standard of Review

TVA moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of

standing and thus lack of jurisdiction [Doc. 14].3 “Unlike a Rule 12(b)(6) motion to dismiss

for failure to state a claim, a court need not convert a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1) into one for summary judgment when materials

outside the pleadings are considered.” See Johnson v. Bredesen, 356 F. App’x 781, 783

(6th Cir. 2009). Attacks to standing may be facial or factual. A facial attack is one arguing

that the complaint does not plausibly demonstrate standing exists. Ass’n of Am. Physicians

& Surgeons v. United States FDA, 13 F.4th 531, 543 (6th Cir. 2021). When analyzing a

facial attack, the court must accept the plaintiff’s allegations regarding standing as true and

determine whether the plaintiff has asserted a plausible claim that it has standing. Id. at

543–44.

On the other hand, a factual attack to standing challenges “the factual existence of”

standing. Van Vleck v. Leikin, Ingber & Winters, P.C., No. 20-11635, 2021 WL 1212702,

at *1 (E.D. Mich. Mar. 31, 2021). When the plaintiff relies on matters outside the pleadings

to demonstrate standing, the challenge is factual, and the court must “assess the factual

basis for [standing] by weighing the evidence tendered.” Id. The plaintiff bears the burden

3 Because the Court concludes that plaintiffs do not have standing to maintain this action,

the Court does not reach the merits of plaintiffs’ claims and thus limits its standard of review to

consideration of TVA’s motion to dismiss, which raises the standing issue.

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to demonstrate that standing exists. Binno v. ABA, 826 F.3d 338, 344 (6th Cir. 2016).

Because plaintiffs rely on declarations of their executives and members to demonstrate

standing, TVA’s standing challenge is a factual attack, and the Court will therefore

consider whether plaintiffs’ declarations demonstrate standing.4

III. Analysis

While the complaint presents claims under the APA, a court has no authority to

consider the merits of a case if the plaintiff lacks standing to present its claims. See Binno,

826 F.3d at 344. Therefore, the Court will first consider whether plaintiffs have adequately

demonstrated standing.

Federal courts may only adjudicate “Cases” and “Controversies.” U.S. Const. art.

III, § 2, cl. 1; TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). A case or

controversy exists only if the plaintiff has a “personal stake” in the outcome of a dispute,

that is, if the plaintiff has standing to present its claims. TransUnion, 141 S. Ct. at 2203.

To demonstrate standing, the plaintiff must show: “(i) that he suffered an injury in fact that

is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by

the defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id. In

4 When TVA submitted its motion to dismiss, TVA’s challenge was arguably facial

because plaintiffs had submitted no evidence in support of standing at that time. However, given

that plaintiffs have now moved for summary judgment and presented evidence to demonstrate

standing, the Court will treat TVA’s standing challenge as a factual attack.

In any event, the Court would find plaintiffs lack standing even considering TVA’s

challenge as facial. Specifically, the complaint alleges plaintiffs and their members have suffered

the same harms that plaintiffs’ affiants allege they have suffered in their declarations. Thus, on a

facial attack, the Court would find the complaint fails to plausibly demonstrate standing for the

same reasons discussed infra with respect to TVA’s factual challenge [See Doc. 1 ¶¶ 10–21].

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light of separation of powers principles, the standing inquiry is “especially rigorous” when

actions involving the political branches are at issue. See Clapper v. Amnesty Int’l USA,

568 U.S. 398, 408 (2013).

The primary issue in this case is whether plaintiffs have demonstrated a sufficient

injury. An injury is constitutionally sufficient only if it is “‘concrete’––that is, ‘real, and

not abstract.’” TransUnion, 141 S. Ct. at 2204 (quoting Spokeo v. Robins, 578 U.S. 330,

340 (2016)). While a tangible injury such as personal or property harm qualifies as a

sufficient injury-in-fact, “an intangible injury may be concrete if it ‘has a close relationship

to a harm that has traditionally been regarded as providing a basis for a lawsuit in English

or American courts.’” Polyweave Packaging, Inc. v. Buttigieg, No. 4:21-CV-54, 2021 WL

4005616, at *3 (W.D. Ky. Sept. 1, 2021) (quoting Spokeo, 578 U.S. at 340–41). “That

inquiry asks whether plaintiffs have identified a close historical or common-law analogue

for their asserted injury.” TransUnion, 141 S. Ct. at 2204. However, “[a] common-law or

historical analogue need not be an ‘exact duplicate’ to make this showing.” Ward v. Nat’l

Patient Acct. Servs. Sols., 9 F.4th 357, 362 (6th Cir. 2021) (quoting TransUnion, 141 S. Ct.

at 2209). Congress’s decision to provide a private right of action is “instructive” as to

whether a sufficiently concrete injury has occurred; however, a violation of a statutory right

alone does not create a constitutional injury. TransUnion, 141 S. Ct. at 2204–05.

Additionally, a plaintiff’s injury must be “particularized.” Gerber v. Herskowitz,

14 F.4th 500, 505–06 (6th Cir. 2021). “To qualify as particularized, an injury ‘must affect

the plaintiff in a personal and individual way,’ . . . not in a general manner that affects the

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entire citizenry.” Id. (citation omitted). However, “[t]he fact that an injury may be suffered

by a large number of people does not of itself make that injury a nonjusticiable generalized

grievance.” Spokeo, 578 U.S. at 339 n.7.

Plaintiffs rely on two bases to demonstrate standing, both relating to the

injury-in-fact requirement. First, plaintiffs argue they have organizational standing

because TVA has caused their organizations informational harm by violating their statutory

right to an adequate response to the Petition. Second, plaintiffs aver they have associational

standing because TVA has caused their members economic and First Amendment harm by

using the members’ rate payments in a manner with which they disagree. The Court

considers each proffered basis in turn.5

A. Organizational Standing and Informational Harm

Plaintiffs argue they have organizational standing because they have a statutory

right to receive information under the APA via an adequate response to the Petition and

TVA’s failure to respond therefore causes them cognizable informational injury [Doc. 21

pp. 23–24; Doc. 29 pp. 15–16]. TVA argues that plaintiffs lack organizational standing

because plaintiffs have not demonstrated that TVA’s conduct impaired their ability to

provide services or that plaintiffs expended resources to avoid the alleged harm [Doc. 15

pp. 24–25]. Moreover, TVA contends that plaintiffs’ alleged informational injury is

5 Because the Court concludes that plaintiffs have failed to demonstrate a justiciable injury,

the Court need not consider whether plaintiffs have established causation or redressability. But

see fn. 10, infra (briefly addressing redressability as to plaintiffs’ claim of associational standing).

Equally, the Court need not consider TVA’s alternative argument that plaintiffs fail the “zone of

interest” test for standing [See Doc. 27 pp. 26–27].

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insufficient because no statute requires TVA to provide a response, and regardless,

plaintiffs have not demonstrated how TVA harms plaintiffs by failing to provide a response

or how Congress specifically intended to prevent such harm [Doc. 23 pp. 15–18].

An organization has standing to maintain a lawsuit on its own behalf if “it has

suffered a palpable injury as a result of the defendant[’s] actions.” Protect Our Aquifer v.

TVA, 554 F. Supp. 3d 940, 950 (W.D. Tenn. 2021) (quoting MX Group Inc. v. City of

Covington, 293 F.3d 326, 332–33 (6th Cir. 2002)). Thus, an organization has standing

only if it demonstrates that it meets the three elements of standing set forth supra. Shelby

Cnty. Advocs. for Valid Elections v. Hargett, No. 2:18-CV-2706, 2019 WL 4394754, at *5

(W.D. Tenn. Sept. 13, 2009) (citing Fair Elections Ohio v. Husted, 770 F.3d 456, 459–60

(6th Cir. 2014)). In addition, “an organization must establish ‘that its ability to further its

goals has been ‘perceptibly impaired’ so as to constitute far more than simply a setback to

the organization’s abstract social interests.’” Miami Valley Fair Hous. Ctr., Inc. v.

Preferred Real Est. Invs., LLC, No. 2:15-CV-2737, 2017 WL 914735, at *3 (S.D. Ohio

Mar. 8, 2017) (quoting Greater Cincinnati Coal. for the Homeless v. City of Cincinnati,

56 F.3d 710, 716 (6th Cir. 1995)). To satisfy this standard, the organization must allege

that it has suffered a “‘demonstrable injury to the organization’s activities’ and a

‘consequent drain on the organization’s resources.’” League of Voters of Mich. v. Johnson,

352 F. Supp. 3d 777, 801 (E.D. Mich. 2018) (quoting Havens Realty Corp. v. Coleman,

455 U.S. 363, 379 (1982)); see also Online Merchs. Guild v. Cameron, 995 F.3d 540, 547

(6th Cir. 2021) (stating that an organization has standing only if it demonstrates that the

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“purportedly illegal action increases the resources the group must devote to programs

independent of its suit challenging the action” (internal quotation marks omitted)).

The Court finds that plaintiffs have not demonstrated that they have suffered

organizational harm. Plaintiffs have failed to provide evidence that their organizations

have expended or diverted resources––whether time, money or otherwise––as a result of

TVA’s conduct. Compare League of Voters of Mich., 352 F. Supp. 3d at 811–12 (Quist,

J., concurring in part and dissenting in part) (suggesting an organization should not have

standing when it did not expend or divert resources to support its mission as a result of the

defendant’s action and therefore the organization’s harm was a mere setback to its “abstract

social interests”), with Havens, 455 U.S. at 379 (finding a plaintiff demonstrated standing

when the plaintiff organization “devote[d] significant resources to identify and counteract

the defendant’s” misconduct such that there was a “consequent drain on the organization’s

resources” which “constitute[d] far more than simply a setback to the organization’s

abstract social interests”), and Mote v. City of Chelsea, 284 F. Supp. 3d 863, 887–88 (E.D.

Mich. 2018) (finding an organization demonstrated standing when it presented testimony

that it diverted resources away from other services to assure the defendants’ compliance

with the Americans with Disabilities Act). Moreover, plaintiffs have not provided

evidence indicating that TVA’s failure to provide a response has materially affected their

activities. For example, plaintiffs have not adduced evidence demonstrating how TVA’s

failure to provide an adequate response has impeded plaintiffs’ efforts in furtherance of

their missions. See, e.g., Home Builders Ass’n of Lexington v. Lexington-Fayette Urb.

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Cnty. Plan. Comm’n, No. 5:19-CV-178, 2020 WL 2545323, at *4 (E.D. Ky. May 18, 2020)

(finding the plaintiff did not have standing when it offered a mere “[c]oncern, without any

concrete example of how” the defendant’s actions caused a concrete injury).

Instead, plaintiffs provide affidavits from their executives stating that the Petitioners

submitted the Petition because their organizations are “actively engaged in advocacy

concerning” TVA and are “involved in a broader advocacy effort concerning . . . important

questions of compelled ratepayer funding for . . . outside groups that regularly engage in

anti-environmental advocacy activities” [Doc. 20-1 p. 1]. Moreover, plaintiffs’ executives

assert that “[i]f TVA were to grant the Petition, TVA would no longer fund [the outside

groups, and conversely,] if TVA were to explain the bases for denying the Petition,”

plaintiffs could “determine how to move forward most effectively” [Doc. 20-1 p. 2; see

also Doc. 20-10 p. 2]. However, plaintiffs’ alleged advocacy interest is insufficient

because plaintiffs have not provided evidence that they have expended resources or its

mission has been impaired. See Havens, 455 U.S. at 379. Moreover, the conclusory

assertions that TVA’s conduct has prevented plaintiffs from “determin[ing] how to move

forward most effectively” are not sufficiently definite to establish a concrete harm. See

Home Builders Ass’n of Lexington, 2020 WL 2545323, at *4. In sum, plaintiffs lack

standing because they have not demonstrated that TVA has “perceptibly impaired” their

goals. See Miami Valley Fair Hous. Ctr., 2017 WL 914735, at *3.

The Court further finds that plaintiffs do not have organizational standing based on

the allegation that TVA violated their statutory right to information under the APA by

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failing to respond to the Petition [Doc. 21 pp. 22–24; Doc. 29 pp. 15–16]. However, before

the Court explains its reasoning, it is necessary to examine the Supreme Court’s

jurisprudence regarding the relationship between statutory violations and informational

harm.

In two cases that plaintiffs cite, the Supreme Court suggested that a violation of a

statutory right to information can sometimes suffice to cause an Article III injury. First, in

Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989), an American

Bar Association (“ABA”) committee, acting through the Department of Justice (“DOJ”),

conducted investigations into and completed reports regarding potential judicial nominees,

which the ABA kept confidential. Id. at 443–45. The plaintiffs sued the DOJ when the

ABA refused to provide the plaintiffs with the names of potential nominees, the reports,

and minutes from the committee’s meetings. Id. at 447. Specifically, the plaintiffs argued

that the ABA committee was an “advisory committee” under the Federal Advisory

Committee Act and therefore was statutorily required to publicly disclose the information

requested. Id. at 446–47. The Supreme Court found the plaintiffs had standing. Id. at 451.

The Court reasoned the plaintiffs suffered a sufficient injury because they had requested

disclosure of the information and the ABA denied that request, emphasizing that plaintiffs

requesting public information in similar cases had never been required to make a further

showing. Id. at 449–50.

Next, in Federal Election Commission v. Akins, 524 U.S. 11 (1998), voters filed a

complaint with the Federal Election Commission (the “FEC”) arguing an organization was

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a “political committee” under the Federal Election Campaign Act of 1971 and therefore

was required to publicly disclose information regarding its membership and finances. Id.

at 13–17. The FEC disagreed, reasoning that the organization’s expenditures did not cause

it to qualify as a “political committee.” Id. at 18. The Supreme Court held the voters had

standing to challenge the FEC’s decision. Id. at 26. Citing Public Citizen, the Court

reasoned that “a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain

information which must be publicly disclosed pursuant to a statute.” Id. at 21.

Subsequently, the Supreme Court, in TransUnion, 141 S. Ct. 2190, further analyzed

the relationship between statutory violations and informational harm. In TransUnion, the

plaintiffs requested information from a credit reporting agency that the agency was

statutorily required to provide. Id. at 2200–01. While the agency provided the information,

the agency did not do so in the form required by statute because it provided the information

via multiple mailings, id. at 2201–02, 2213, and the plaintiffs sued based on this procedural

violation. Id. at 2202. The Supreme Court held the plaintiffs did not have standing to

present their claim because they failed to demonstrate that they suffered harm. Id. at 2213–

14. The Court explained that an injury is constitutionally sufficient if it is a harm that was

recognized at common law or has a common law analogue, and the Court made clear that

Congress may not unilaterally create Article III injuries by providing statutory rights. Id.

at 2204–05. Thus, because the plaintiffs failed to demonstrate any traditionally-recognized

harm deriving from receiving their credit reports in an incorrect format, the Court found

their alleged harms were insufficient as mere statutory violations. Id. at 2213. Moreover,

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the Court distinguished Public Citizen and Akins because, unlike in those cases, the

TransUnion “plaintiffs did not allege that they failed to receive any required information”;

rather, “[t]hey argued only that they received it in the wrong format.” Id. at 2214 (emphasis

in original).

Thus, Public Citizen and Akins and their progeny establish that a plaintiff may

sometimes suffer a sufficient injury based on a violation of a statutory right to information.

And TransUnion appears to clarify that this violation alone does not per se create Article

III harm; rather, the plaintiff must demonstrate the violation caused a discrete,

traditionally-recognized Article III harm aside from the statutory violation. See Erwin

Chemerinsky, What’s Standing After TransUnion LLC v. Ramirez, 96 N.Y.U. L. Rev.

Online 269, 270, 275–26 (2021), nyulawreview.org/online-features/whats-standing-after-

transunion-llc-v-ramierz (citing Akins as a case basing standing on the violation of a

statutory right to information and noting that TransUnion’s holding significantly narrows

the breadth of standing); see also TransUnion, 141 S. Ct. at 2221 (Thomas, J., dissenting)

(arguing that the majority opinion establishes that “[n]o matter if [a] right is personal or if

the legislature deems the right worthy of legal protection, legislatures are constitutionally

unable to offer the protection of the federal courts for anything other than money, bodily

integrity, and anything else that this Court thinks looks close enough to rights existing at

common law.”). Another district court in this circuit has interpreted TransUnion similarly.

See Shumway v. Neil Hospitality, Inc., 570 F. Supp. 3d 585, 592 and n.2 (W.D. Tenn. 2021)

(suggesting Akins is consistent with TransUnion because the harm in Akins was a

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traditionally-recognized harm, noting that the FEC’s withholding of information “impeded

the plaintiffs’ ability to exercise their voting rights––a critical and fundamental

entitlement” and recognizing that any other interpretation would render Akins “incongruent

with the Supreme Court’s current standing jurisprudence.”).

Accordingly, the Court disagrees with plaintiffs that Article III harm per se

materialized when TVA failed to provide the requested response to the Petition. See

TransUnion, 141 S. Ct. at 2205 (“Congress’s creation of a statutory . . . obligation and a

cause of action does not relieve courts of their responsibility to independently decide

whether a plaintiff has suffered a concrete harm . . . .”); see also Shumway, 570 F. Supp.

3d at 593 (“[W]hether concrete harm exists under Article III is a determination left to the

courts and defined by the bounds of the Constitution.”). Indeed, scholarship suggests that

after TransUnion, plaintiffs have no standing to raise non-economic APA claims for the

reasons discussed. See Chemerinsky, supra, at 285 (“Unless the plaintiff can show an

economic injury, there would not be standing to bring claims challenging violations of the

APA.”).

In any event, the Supreme Court also stated that, unlike TransUnion, both Public

Citizen and Akins “involved denial of information subject to public-disclosure or sunshine

laws that entitle all members of the public to certain information.” TransUnion, 141 S. Ct.

at 2205 (emphasis added). This language suggests that a violation of a statutory right to

information may constitute sufficient harm only when the statute requires broad public

disclosure of information to all (or at least numerous) members of the public. See Casillas

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v. Madison Ave. Assocs., 926 F.3d 329, 338 (7th Cir. 2019) (noting that Akins and Public

Citizen involved “[p]ublic-disclosures laws—sometimes called ‘sunshine laws’—[that]

protect the public’s interest in evaluating matters of” public concern, such as the right to

vote in Akins and the right to participate in judicial selection in Public Citizen). Therefore,

plaintiffs have no organizational standing because no statute requires TVA to publicly

disclose the response that plaintiffs request; only plaintiffs would receive the response.6

Regardless, plaintiffs have not met their burden to demonstrate they suffered a

constitutionally-sufficient injury. TransUnion and following Sixth Circuit precedent

clarify that plaintiffs have the burden to demonstrate that the alleged harm is a

traditionally-recognized Article III harm. See Ward, 9 F.4th at 362 (“To establish that the

statutory violations here constitute concrete injury, [the plaintiff] must show that [its harm]

resembles a harm traditionally regarded as providing a basis for a lawsuit.” (citing

TransUnion, 141 S. Ct. at 2204)). Here, plaintiffs only allege the APA entitles them to an

adequate response to the Petition “and Plaintiffs are therefore injured by TVA’s failure to

comply with this statutory right to information” [Doc. 29 pp. 15–16]. Plaintiffs do not,

however, allege that a violation of their right to a response is a traditionally-recognized

harm, nor has the Court been made aware of any common-law analogue to plaintiffs’

6 Plaintiffs cite Ohio v. Raimondo, 848 F. App’x 187 (6th Cir. 2021), for the proposition

that Article III standing may derive from informational injury alone [Doc. 21 pp. 23–24]. The

Court finds that Raimondo does not support a finding of standing. First, Raimondo was decided

shortly before TransUnion. Moreover, Raimondo held that Ohio suffered an injury because the

Secretary of Commerce failed to provide population data Ohio needed to engage in redistricting

pursuant to the Census Act. 848 F. App’x at 188. However, like in Public Citizen and Akins, the

Census Act required public disclosure of the population data to all states. Id.

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alleged injury. See Chemerinsky, supra, at 285. For instance, plaintiffs’ harm is not

tangible harm such as physical, property, or monetary harm, and it is not any

traditionally-recognized intangible harm, such as reputational harm, a violation of privacy,

or extreme emotional distress. See TransUnion, 141 S. Ct. at 2204; Gerber, 14 F.4th at

506; Ward, 9 F.4th at 362. Accordingly, the Court finds that plaintiffs do not have

organizational standing.

B. Associational Standing

Plaintiffs assert they have associational standing because their members are TVA’s

ratepayers who suffer economic and First Amendment harm when TVA uses revenue from

its ratepayers to support outside groups that engage in activities with which the members

disagree [Doc. 21 pp. 24–28]. TVA argues that the members’ alleged injuries are

conjectural, their arguments constitute generalized grievances that implicate separation of

powers concerns, and they raise impermissible challenges to TVA’s government speech

[Doc. 15 pp. 25–27; Doc. 27 pp. 25–26]. Plaintiffs reply that their members’ arguments

are not generalized grievances because the members personally suffer economic harm and

object to the use of their funds [Doc. 29 pp. 14–15].

In certain cases, an organization has standing to sue for injuries on behalf of its

members even when the organization itself suffers no constitutionally-sufficient injury.

Ass’n of Am. Physicians & Surgeons, 13 F.4th at 537. Specifically:

An organization may sue on behalf of its members if it shows that: (1) its

“members would otherwise have standing to sue in their own right”; (2) the

“interests” that the suit “seeks to protect are germane to the organization’s

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purpose”; and (3) “neither the claim asserted nor the relief requested requires

the participation of individual members in the lawsuit.”

Id. (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). To

satisfy the first requirement, the organization must demonstrate that an identified member

has suffered a concrete and particularized injury that the defendant caused and that the

requested relief will redress. Id. at 543.

The Court finds that plaintiffs lack associational standing because they have not

demonstrated that their members have suffered a sufficient injury-in-fact. As a preliminary

matter, the parties debate whether the members have suffered any First Amendment harm.

Specifically, the parties contest whether TVA’s payments to the outside groups constitutes

improper compelled subsidization of speech or government speech that is not subject to

challenge. Plaintiffs discuss the Supreme Court’s opinion in Janus v. American Federation

of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), in which

the Court stated that “[b]ecause the compelled subsidization of private speech seriously

impinges on First Amendment rights, it cannot be casually allowed.” Id. at 2464.

Meanwhile, TVA cites the Supreme Court’s opinion in Johanns v. Livestock Marketing

Association, 544 U.S. 550 (2005), in which the Supreme Court held government speech is

not subject to a First Amendment compelled-subsidy challenge. Id. at 559. Ultimately,

the Court finds it unnecessary to address these arguments because the members’ complaints

do not rise above the level of generalized grievances.

A generalized grievance is a nonjusticiable claim of harm “to [plaintiff’s] and every

citizen’s interest in proper application of the Constitution and laws, and seeking relief that

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no more directly and tangibly benefits [plaintiff] than it does the public at large.” Lance v.

Coffman, 549 U.S. 437, 439 (2007) (internal quotation marks omitted); Child.’s Health

Def. v. FDA, 573 F. Supp. 3d 1234, 1242 (E.D. Tenn. 2021) (quoting In re FirstEnergy

Sols. Corp., 828 F. App’x 321, 323 (6th Cir. 2020)).7 However, “[t]he fact that an injury

may be suffered by a large number of people does not of itself make that injury a

nonjusticiable generalized grievance.” Spokeo, 578 U.S. at 339 n.7. The bar against

generalized grievances “serves vital interests going to the role of the Judiciary in our

system of separated powers.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).

The Court finds that plaintiffs’ members’ challenges are generalized grievances. As

noted, plaintiffs complain that TVA causes their members harm because TVA uses the

members’ rate payments to fund memberships with outside groups that engage in activities

with which the members disagree. For example, one member asserts that he is “concerned

that money that [he] pay[s] TVA for [his] electricity is being used to counteract [his] efforts

at [Energy Alabama] by funding . . . organizations that advocate for fossil fuels,” and the

member “object[s] to having any part of [his] electricity bill payments used to support

7 There is some conflicting authority regarding whether the generalized grievance

limitation is a prudential standing limitation or an Article III requirement. Compare Hollingsworth

v. Perry, 570 U.S. 693, 706 (2013) (“A litigant ‘raising only a generally available grievance about

government . . . does not state an Article III case or controversy’”), with Smith v. Jefferson Cnty.

Bd. of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011) (noting the generalized grievance

requirement is prudential). The Supreme Court’s opinion in Lexmark International, Inc. v. Static

Control Components, Inc., 572 U.S. 118 (6th Cir. 2014), appears to hold the rule against

generalized grievances is constitutional. Id. at 127 n.3. Yet the Sixth Circuit has suggested the

rule against generalized grievances is prudential even after Lexmark. See, e.g., Moncier v. Haslam,

570 F. App’x 553, 556 (6th Cir. 2014) (citations omitted). Ultimately, the distinction is not

consequential because “a plaintiff must meet both constitutional and prudential requirements to

establish individual standing.” Smith, 641 F.3d at 206.

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[these kinds of activities] . . . .” [Doc. 20-2 p. 2]. Another member expresses concern of

his ratepayer dollars being used to fund groups that engage in political activities “directly

contrary to my values and my interest in protecting the environment where I live and

recreate” [Doc. 20-12 p. 2].

The Court finds that plaintiffs’ members’ individual rate payments do not provide a

basis for associational standing. First, the Sixth Circuit, following Supreme Court

jurisprudence, has repeatedly held that taxpayers do not have standing to challenge

government actions merely because they pay taxes. Murray v. U.S. Dep’t of Treasury, 681

F.3d 744, 748 (6th Cir. 2012); Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth.,

567 F.3d 278, 284 (6th Cir. 2009) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,

344 (2006)).8 While the instant case is not itself a taxpayer-standing case given that TVA

is not funded by tax revenue [Doc. 1 ¶ 31],9 the same rationale giving rise to the

no-taxpayer-standing rule applies in equal force here because a vast number of citizens

make payments to TVA, and thus plaintiffs’ members’ alleged economic injuries are not

unique. See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 598–600 (2007)

(stating that taxpayers do not have standing to challenge government expenditures merely

8 There are exceptions to the general no-taxpayer-standing rule. However, the rationales

underlying those exceptions are not applicable here. For example, the instant case does not involve

an Establishment Clause challenge. See Cuno, 547 U.S. at 347–49 (discussing Flast v. Cohen, 392

U.S. 83 (1968), and the limited exception for taxpayer standing encompassed therein). Nor have

the parties pointed to any applicable exception to this general rule.

9 See Richard J. Campbell, Cong. Rsch. Serv., R43172, Privatizing the Tennessee Valley

Authority: Options and Issues 3 (2013), crsreports.congress.gov/product/pdf/R/R43172 (“TVA is

now fully self-financing . . . . TVA makes no profit and receives no tax money.”).

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because they paid taxes and describing separation of powers concerns raised by taxpayer

standing).10

Additionally, the Court finds plaintiffs have not demonstrated that their members’

alleged First Amendment harm is particularized. It is true that the members each

individually claim to support environmental initiatives and suffer harm from environmental

change [Docs. 20-2–20-13]. But conceivably, everyone who pays TVA’s rates may have

some interest in the environment and sustainable energy; however, plaintiffs’ members do

not demonstrate any relationship between their rate payments and the outside groups’

activity that allegedly harms them. Indeed, the Court has reviewed the submitted

declarations, and it does not appear that the members attempt to trace their specific rate

10 Plaintiffs also argue they suffer economic injury via increased rate payments due to

TVA’s involvement with the outside groups [See Doc. 21 pp. 25–26]. While economic injury at

times constitutes Article III harm, it does not suffice when the harm relates to a generalized

grievance. See Massachusetts v. Mellon, 262 U.S. 447, 487 (1923) (describing a taxpayer’s injury

due to government spending as “comparatively minute and indeterminable”).

This point also explains why the Supreme Court’s opinion in Janus, 138 S. Ct. 2448, does

not change the Court’s conclusion. The Court in Janus held that a nonmember of a union could

not be compelled to pay any portion of a union’s fee if the nonmember did not join the union and

disagreed with its activities. Id. at 2464–66, 2486. But the right to maintain a

compelled-subsidization claim necessarily yields to Article III’s requirement that a plaintiff suffer

a particularized injury that is not a generalized grievance. See Int’l Union of Operating Eng’rs,

Loc. 139 AFL-CIO v. Daley, No. 19-CV-1233, 2020 WL 1032340, at *3–4 (E.D. Wis. Mar. 3,

2020) (stating that the plaintiffs could not maintain a compelled-subsidization claim without first

demonstrating standing).

Separately, the Court notes that plaintiffs’ argument also suffers from redressability

shortcomings. Namely, even if the Court ordered TVA to respond to the Petition as plaintiffs

request, and indeed, even if TVA granted the Petition, plaintiffs have not demonstrated their harm

would be redressed. This is because TVA would still be free to pay membership dues and fees to

other organizations falling outside the scope of the Petitioners’ proposed regulation. Thus,

plaintiffs have not demonstrated their rates would decrease if they succeeded. See Ariz. Christian

Sch. Tuition Org. v. Winn, 563 U.S. 125, 136 (2011) (noting that taxpayer standing suffers from

causation and redressability shortcomings because it “rest[s] on unjustifiable economic and

political speculation” because there is no guarantee relief would decrease a taxpayer’s tax burden).

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payments to challenged expenditures of TVA. Thus, at core, the members’ alleged harm

is akin to disagreement with the manner in which TVA spends its revenue, and on that

theory, all of TVA’s ratepayers would have standing to challenge any action of TVA with

which they disagree. Accordingly, the response plaintiffs seek would “no more directly

and tangibly benefits [plaintiffs] than it does the public at large.” See Lance, 549 U.S. at

439. 11

Therefore, the Court concludes plaintiffs do not have associational standing.12

IV. Conclusion

For the foregoing reasons, TVA’s motion to dismiss [Doc. 14] will be GRANTED

and plaintiffs’ motion for summary judgment [Doc. 20] will be DENIED. This action will

be DISMISSED. A separate order will enter.

ENTER:

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

11 The Court notes that courts have repeatedly found personal disagreement to be an

insufficient harm. See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2100 (2019) (Gorsuch,

J., concurring in the judgment) (“Who, after all, would have trouble recasting a generalized

grievance about governmental action into an ‘I-take-offense’ argument for standing?”);

Glennborough Homeowners Ass’n v. U.S. Postal Serv., 21 F.4th 410, 415 (6th Cir. 2021) (noting

that a “purported indignity . . . falls well short of a concrete harm needed to establish Article III

standing”); Smith, 641 F.3d at 207 (finding that any complaints deriving from psychological harm

that teachers suffered when they were terminated and their positions were outsourced to a private

religious institution were generalized grievances unless they could establish taxpayer standing).

12 Because plaintiffs have failed to demonstrate their members have suffered an Article III

injury, the Court need not consider the second and third requirements for associational standing.

See Ass’n of Am. Physicians & Surgeons, 13 F.4th at 537 (setting forth the three requirements, all

of which must be met, for associational standing).

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