McRae

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at KNOXVILLE

APPALACHIAN VOICES, et al., )

)

Plaintiffs, )

) Case No. 3:24-cv-411

v. )

) Judge Curtis L. Collier

TENNESSEE VALLEY AUTHORITY, ) Magistrate Judge Debra C. Poplin

)

Defendant. )

M E M O R A N D U M

Before the Court is a motion by Plaintiffs Appalachian Voices, the Center for Biological

Diversity, and the Sierra Club to require Defendant Tennessee Valley Authority (“TVA”) to

complete and supplement the administrative record. (Doc. 28.) TVA responded in opposition

(Doc. 30), and Plaintiffs replied (Doc. 32).

I. BACKGROUND

In 2021, TVA announced that it would retire the nine coal-fired units at the Kingston Fossil

Plant, a coal-fired power plant located in Roane County, Tennessee. (Doc. 30 at 8.) After

reviewing proposed environmental impacts, TVA published an Environmental Impact Statement

(“EIS”) in February 2024 and then a Record of Decision in April 2024. (Id.; Doc. 29 at 4.) TVA’s

President and CEO decided to adopt the preferred alternative, which was building the Kingston

Gas Plant. (Doc. 30 at 8.)

Plaintiffs sued TVA alleging violations of the National Environmental Policy Act

(“NEPA”), 42 U.S.C. §§ 4321 et seq. and the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 706 et seq. (Doc. 1 at 1.) They allege that TVA violated NEPA because it was

pre-committed to building the Kingston Gas Plant before making a final decision and that TVA’s

decision to build the Kingston Gas Plant was arbitrary and capricious. (Id. ¶¶ 238-84, Doc. 29 at

2–4.)

APA review is based on “the full administrative record that was before the [decisionmaker]

at the time [he/she] made the decision.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 420 (1971). TVA filed its administrative record with the Court on May 5, 2025. (Doc. 26.)

Now, Plaintiffs allege that there are several pieces of evidence that either were considered and not

put into the administrative record, or that should be part of the Court’s review regardless of whether

they were considered. (Doc. 29 at 12–18.)

Plaintiffs allege that there is clear evidence that TVA considered several pieces of evidence

that they omitted from the administrative record. (Id.) The first is a contract with General Electric

(“GE”) from December 22, 2022, which “included an option for TVA to purchase equipment for

a potential [gas] plant at Kingston.” (Doc. 30 at 11; AR at 055218–055307.) The second is an

August 2021 Precedent Agreement with East Tennessee Natural Gas (“ETNG”), where TVA

agreed to purchase the entirety of the pipeline’s shipping capacity for an initial twenty-year term.

The agreement was contingent on the outcome of the requisite environmental reviews and on

necessary regulatory approvals. (AR at 055179–05580.) Redacted versions of both contracts are

in the record because Conservation Groups attached them to their comments.

Plaintiffs also argue that the TVA should have included its Financial and System Analysis

in the administrative record because TVA used this analysis “to find the Kingston Gas Plant was

the lowest-cost option, a key factor in TVA’s final decision to build the plant.” (Doc. 29 at 20.)

According to TVA, Plaintiffs’ request is not one for discrete documents, but rather a request for

underlying modeling tools and source data. (Doc. 31.) The results of the modeling are included

in the administrative record in Appendix B to the EIS (AR 002784–2803), but the actual modeling

and data underlying the analysis are not included in the record.

Alternatively, Plaintiffs argue that even if TVA did not consider these pieces of evidence,

the Court should order supplementation of the record with these materials as well as three other

documents, the Lyash Email, TVA Securities and Exchange Commission (“SEC”) Filing, and

Enbridge SEC Filing, due to alleged bad faith on the part of TVA. (Doc. 29 at 22.) The Lyash

Email is an email produced by TVA from its Chief Executive Officer (“CEO”), Jeff Lyash, on

December 22, 2022, to the TVA Board describing the GE Contract. (Doc. 29-8 at 2.) The TVA

SEC Filing is an April 30, 2024, filing with the SEC that Plaintiffs allege “detailed the significant

expenses the agency incurred for the Kingston project before the April 2024 Record of Decision.”

(Doc. 29 at 13.) The Enbridge SEC Filing is a filing by the parent company of ETNG, Enbridge,

Inc., with the SEC, where Enbridge “reported that it had spent $94 million on the project by March

31, 2024, before TVA’s April 2024 Record of Decision.” (Doc. 29 at 18 (citing Doc. 29-10 at 4).)

II. STANDARD OF REVIEW

The parties disagree on the standard of review for the motion. They disagree about whether

“completion” and “supplementation” of the administrative record are different questions subject

to different standards, and they disagree about what those standards should be. Plaintiffs argue

that TVA should complete, or, in the alternative, supplement the administrative record. Here, the

term “completion” is used to challenge TVA’s designation of the administrative record. Plaintiffs

seek to add documents that they allege were before the agency. The term “supplementation” is

used to request extra-record evidence, or to add documents that plaintiffs admit were not before

the agency but should be considered nonetheless.

TVA argues that “[t]he Sixth Circuit has not distinguished between ‘completing the record’

and ‘supplementing the record’ as Plaintiffs invite this Court to do.” (Doc. 30 at 16.) Defendant

asserts there is only one standard for the claim which requires both “exceptional circumstances”

and “a strong showing of bad faith” to supplement the record. (Id.) To be sure, district courts in

this Circuit have gone both ways on this issue.1 But the United States Supreme Court and the

Court of Appeals for the Sixth Circuit have recognized a difference between seeking to add to the

record materials the agency considered and seeking to engage in extra-record discovery to add

materials the agency did not consider. For the reasons that follow, this Court recognizes the

distinction as well.

Completion and supplementation have been used interchangeably and sometimes

imprecisely.2 The operative distinction is functional, not linguistic. To start, the Supreme Court

1 Some districts in this Circuit have distinguished between completion and

supplementation. See, e.g., Hickey v. Chadick, No. 2:08-cv-824, 2009 U.S. Dist. LEXIS 92880 at

*4–8 (S.D. Ohio Sept. 18, 2009) (distinguishing between adding to the record with documents that

were before the agency and supplementing the record with documents through discovery, and

applying different standards of review to each challenge); Gun Owners of Am., Inc. v. U.S. Dep’t

of Justice, 695 F. Supp. 3d 920, 928 n.4 (E.D. Mich. Sept. 27, 2023) (“Notably, supplementation

of the administrative record is distinct from completion of the administrative record in APA cases.

Completing the record means including evidence that the agency considered but did not submit.

Supplementing the record means introducing evidence that the agency did not consider but is

necessary for the court to conduct a substantial inquiry.”); Weiss v. Kempthorne, No. 1:08-cv-

1031, 2009 U.S. Dist. LEXIS 59711 (W.D. Mich. July 13, 2009) (noting that “[p]laintiffs appear

to conflate materials that they believe should be part of the administrative record (i.e. because they

are materials that were ‘before the agency’), with materials that [p]laintiffs believe the Court

should consider in addition to the administrative record” and applying different standards to each

scenario).

Others maintain there is no distinction. See, e.g., Ky. Heartwood, Inc. v. U.S. Forest Serv.,

No. 6:22-cv-169, 2023 WL 11963553 (E.D. Ky. Aug. 3, 2023) (stating that “courts in the Sixth

Circuit do not distinguish between motions for completion and supplementation of the

administrative record.”); City of Crossgate v. U.S. Dep’t of Veterans Affairs, No. 3:18-cv-167,

2020 WL 1812014, at *1 (W.D. Ky. Feb. 12, 2020) (citing Ohio Coal Ass’n v. Perez, No. 2:14-

cv-2646, 2017 WL 900165, at *3 (S.D. Ohio Feb. 27, 2017)) (“While some courts attempt to

distinguish between ‘completion’ and ‘supplementation’, the Sixth Circuit does not distinguish

between the two.”).

2 Some out-of-circuit cases use different terms to describe each challenge, which has led to

confusion. See, e.g., Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448

F. Supp. 2d. 1, 5 (D.D.C. 2006) (“There appears to be some confusion regarding the difference

has found a distinction between completion and supplementation, though it has not set a clear

standard of review for completion. In Department of Commerce v. New York, 588 U.S. 752, 782

(2019), the Court noted that a supplemental memorandum “prompted respondents to move for

both completion of the administrative record and extra-record discovery.” In that case, the

Supreme Court treated the district court’s conclusion that the record was incomplete differently

than the district court’s order authorizing extra-record discovery, noting that the Department of

Commerce objected to the latter and not the former. Id. The Court concluded that “[t]he District

Court should not have ordered extra-record discovery when it did. At that time, the most that was

warranted was the order to complete the administrative record.” Id. The Court sees this decision

as establishing a difference between completion and extra-record discovery, requiring a different

standard of review for each.

Such a distinction also follows from the Supreme Court’s decision in Overton Park, which

requires courts to review actions based on the administrative record provided and allows “inquiry

into the mental processes of administrative decisionmakers” only upon a “strong showing of bad

faith or improper behavior.” Overton Park, 401 U.S. at 420. Overton Park sought to prevent post-

between supplementing the record, i.e. adding to the volume of the administrative record with

documents the agency considered, and allowing the review of extra-record evidence, i.e. viewing

evidence outside of or in addition to the administrative record that was not necessarily considered

by the agency.”); cf. Oceana, Inc. v. Pritzker, 217 F. Supp. 310, 316 (D.D.C. 2016) (“There are

two grounds on which a party may seek ‘supplementation’ of the administrative record. First, a

party may request the disclosure of evidence that should have been properly a part of the

administrative record but was excluded by the agency… [f]or clarity, the Court will refer to

compelling discovery on the first ground as completion of the administrative record. Second, a

party may request disclosure of extrajudicial evidence that was not initially before the agency but

the party believes should nonetheless be included in the administrative record… [t]he Court will

refer to compelling discovery on the second ground as supplementation of the administrative

record.”) (internal quotations and citations omitted). And this confusion has led to some courts in

this Circuit using the two words interchangeably. But this labeling choice does not impact the

difference between the two concepts.

hoc rationalizations of agency decisions by focusing only on “the full administrative record that

was before the [decisionmaker] at the time he made his decision.” Id. at 419–20. Requiring bad

faith mitigates against post-hoc rationalizations and confines review to the materials that were

actually before the agency. See id. at 420. But there is no reason that same requirement would

apply to motions to merely complete the administrative record, because those seek to add materials

that were before the agency at the time of the decision. There is no concern about post-hoc

rationalizations or courts seeking to read the minds of the decisionmakers if the materials sought

were, in fact, actually before the agency but simply omitted from the record. Thus, Overton Park

implies a distinction between situations where courts look to supplement the administrative record

with materials outside the agency’s review and situations where courts complete the administrative

record by providing for materials that were actually before the agency.

The line of cases in the Sixth Circuit also shows this functional distinction and suggests a

different standard for completion and supplementation. The Sixth Circuit has used a standard of

extraordinary circumstances, bad faith, or needing background information when parties seek to

add material not considered by the agency. In Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.

1997), the Sixth Circuit outlined the standard for supplementation in response to the plaintiff’s

argument that “a reviewing court may consider evidence outside the [administrative] record.” Its

analysis heavily relied upon the Court of Appeals for the D.C. Circuit’s decision in James Madison

Limited by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996), which addressed whether the

reviewing court could look outside the record to materials not considered by the agency. The

Court treated the question of supplementation as “akin to a district court’s denial of discovery,”

further suggesting that this standard applies when adding to the record new information not

initially considered by the agency. Slater, 120 F.3d at 639.

The Sixth Circuit also considered a supplementation request in Charter Township of Van

Buren v. Adamkus, No. 98-14631999, U.S. App. LEXIS 21037, at *13–15 (6th Cir. 1999) (table).

There, the parties requested addition of a supplemental affidavit that would explain to the Court

the technical terms involved in the permit application process and show that the Environmental

Protection Agency disregarded evidence adverse to its position. Id. at 13–14. The parties also

requested to depose EPA officials. Both requests were analyzed under the “exceptional

circumstances” test, where the Court examined whether an agency, either deliberately or

negligently, excluded documents that may have been adverse to its position or whether the Court

needed additional background information to determine whether the agency considered all relevant

factors. Id. In Harkness v. Secretary of the Navy, 858 F.3d 437, 451–53 (6th Cir. 2017), the Sixth

Circuit applied the supplementation standard to a case reviewing a district court’s refusal to permit

discovery beyond the administrative record. See also Lat. Ams. for Soc. & Econ. Dev. v. Admin.

of Fed. Highway Admin., 756 F.3d 447, 465 (6th Cir. 2014) (same). Both cases used a standard

that required a showing of bad faith and either deliberate or negligent exclusion, or a need for

background information, and both cases involved extra-record discovery.

Those cases differ from the Sixth Circuit’s understanding of cases where parties seek to

complete the administrative record with materials that were already before the decisionmaker.

Sierra Club v. Tennessee Department of the Environment and Conservation, No. 23-3682, 2024

U.S. App. LEXIS 6614, at *6 (6th Cir. Mar. 19, 2024) demonstrates this approach. There, the

Sixth Circuit, in summarizing Slater, read that case as “discussing supplementation as opposed to

completion of an administrative record.” Id. And in that case, the Sixth Circuit entertained a

motion to complete the record without analyzing bad faith or deliberate or negligent exclusion,

ultimately analyzing whether certain materials were considered by the decision-maker and

referring the question of privilege to the merits panel. Id. The same was true in Sherwood v.

Tennessee Valley Authority, 590 F. App’x 451, 466 (6th Cir. 2014), a NEPA case. There, the Sixth

Circuit reviewed a district court’s finding that TVA properly designated the administrative record

and found that “the plaintiffs. . . presented clear evidence that TVA [did] not designate[] the proper

administrative record.” Id. at 462–63. The Sixth Circuit remanded the case to the district court

and required TVA “to submit the proper administrative record to the district court.” Id. In its

review, the Sixth Circuit used the clear evidence standard rather than a standard requiring bad faith

and either deliberate or negligent exclusion or a need for background information. Id. at 459-60.

Accordingly, the Sixth Circuit has treated completion and supplementation as distinct

scenarios with distinct purposes. This Court follows the Supreme Court’s understanding that there

are two standards, and the Sixth Circuit’s guidance on what those standards are.

Completion applies when a plaintiff argues that there was evidence before the

decisionmaker that is not in the record. When a plaintiff seeks to complete the administrative

record, there is a strong presumption of regularity given to the agency’s submitted record, but it

can be overcome by clear evidence to the contrary. Ohio Coal Ass’n, 2017 U.S. Dist. LEXIS

216950, at *6. This is because a court’s review of an agency action should be based on the

administrative record already in existence, which includes materials that were before the agency

at the time the decision was made. Slater, 120 F.3d at 638.

For situations where parties are asking to introduce extra-record evidence that was not

before the decisionmaker, the supplementation standard applies. 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.” Adamkus, 1999 U.S. App. LEXIS 21037, at *14. The

Court may allow a party to supplement the administrative record when an agency deliberately or

negligently excludes certain documents, or when the court needs certain background information

to aid the court’s understanding or determine if the agency examined all relevant factors. U.S. v.

Akzo Coatings of Am., Inc., 959 F.2d 1409, 1428 (6th Cir. 1991).

There is one more contested issue regarding the standard of review. The parties disagree

whether the supplementation standard requires a strong showing of bad faith. TVA argues that

bad faith is required; Plaintiffs argues bad faith is not required. The Sixth Circuit has come out

both ways on this. For example, in Adamkus, the Sixth Circuit suggested that bad faith was only

one avenue for allowing supplementation, not a requirement every time. 1999 U.S. App. LEXIS

21037, at *14 (noting that “courts have also permitted supplementation of the record if the plaintiff

has made a strong showing of bad faith on the part of the agency”). But in Latin Americans for

Social and Economic Development v. Administrator of the FHA, the Sixth Circuit stated that in

supplementation cases, “plaintiff must make a strong showing of bad faith.” 756 F.3d 447, 465

(6th Cir. 2014) (emphasis added). The Court takes the position that bad faith is a conjunctive

requirement. While the Court recognizes that Adamkus outlines the requirements as disjunctive,

that was an unpublished opinion and not binding, meaning that the test outlined in Latin Americans

controls. 3 See Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 948 (6th

Cir. 1997) (noting that an unpublished opinion was “thus not binding on this court.”) Furthermore,

such a disposition is consistent with Supreme Court precedent, which has routinely required bad

faith in order to authorize extra-record discovery. Dep’t of Comm., 588 U.S. at 792 (2019)

3 The Court notes that in Slater, 120 F.3d at 638, the Sixth Circuit said “[c]ourts have

suggested that in order to justify supplementation, a plaintiff must make a strong showing of bad

faith.” The Sixth Circuit did not decide the standard in that case, and the Court takes the decision

in Latin Americans to be conclusive on the issue.

(requiring a “strong showing of bad faith or improper behavior” to proceed beyond the

administrative record) (citing Overton Park, 401 U.S. at 420).

III. DISCUSSION

The Court will first address Plaintiffs’ completion claim, and then it will address Plaintiffs’

supplementation claim. The Court will address each piece of contested evidence in turn.

A. Completion of the Record

Plaintiffs ask the Court to require TVA to complete the record with five items: (1) TVA’s

complete and unredacted Precedent Agreement with East Tennessee Natural Gas related to

pipeline infrastructure to serve the Kingston Gas Plant; (2) records of expenses incurred in

fulfilment of TVA’s obligations under the Precedent Agreement prior to publication of the Record

of Decision on April 8, 2024; (3) TVA’s complete and unredacted December 22, 2022, contract

with General Electric; (4) records of expenses TVA incurred prior to April 8, 2024; and (5) TVA’s

financial and system analysis. (Doc. 29 at 12–18.)

“The record should consist of all materials compiled by [the agency] that were either

directly or indirectly considered.” In re U.S. Dep’t of Def. & U.S. Env’t Prot. Agency Final Rule:

Clean Water Rule: Definition of “Waters of the United States,” 8 Ed. Reg. 37,054 (June 29, 105),

Murray Energy Corp., et al., v. U.S. Dep’t of Def., Dep’t of the Army Corps of Eng’rs; & EPA,

No. 15-3751, 2016 WL 5845712, at *1 (6th Cir. Oct. 4, 2016). The whole record includes “all

documents and materials that the agency directly or indirectly considered…. [and nothing] more

nor less.” Pac. Shores Subdivision, 448 F. Supp. 2d at 4. “Absent clear evidence to the contrary,

the reviewing court assumes the agency has properly designated the administrative record.”

Sherwood, 590 F. App’x at 459 (6th Cir. 2014). The agency’s certification of the record is “entitled

to a presumption of regularity.” Clean Water Rule, 2016 WL 5845712, at *1 (citing Overton Park,

401 U.S. at 415 and Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). “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.” Fort Sill Apache Tribe v. Nat’l Indian Gaming Com., 345 F.

Supp. 3d 1, 9 (D.D.C. 2018). It is not enough to show that the decisionmaker knew of a particular

record; rather, the plaintiff must show that the decisionmaker actually considered said material in

making a decision. See Pac. Shores Subdivision, 448 F. Supp. 2d at 4. The movant “must identify

reasonable, non-speculative grounds for its belief that the documents were… not included in the

record.” Protect Our Aquifer v. Tenn. Valley Authority, No. 2:20-cv-02615, 2022 WL 341014, at

*2 (W.D. Tenn. Jan. 24, 2022).

Other circuits distinguish between direct consideration and indirect consideration, which

is particularly relevant when a party argues that there were underlying sources considered but not

included. See, e.g., Wildearth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243 (D. Colo.

2010); WildEarth Guardians v. Salazar, No. CV-09-00574, 2009 U.S. Dist. LEXIS 110588, at

*10–11 (D. Ariz. Nov. 24, 2009); Amfc Resorts, LLC v. United States DOI, 143 F. Supp. 2d 7, 12–

13 (D.D.C. 2001). The Sixth Circuit also suggests that underlying source material may be included

even if it was not directly considered. See Partners in Forestry Co-Op., Northwood All., Inc. v.

U.S. Forest Serv., 638 F. App’x 456, 469 (6th Cir. 2015) (“There is no requirement that the

administrative record include all underlying sources unless the report relies so heavily on the

underlying sources that the agency might fairly be said to have considered the sources merely by

considering the documents in which they were cited.”). Therefore, if a plaintiff is alleging there

is an underlying source that needs to be included, the plaintiff must show that the documents were

relied on so heavily that the decision-maker constructively considered them. See id.; see also Safari

Club Int’l v. Jewell, No. CV-16-94, 2016 WL 7785452, at *2 (D. Ariz. July 7, 2016) (internal

citations and quotations omitted).

1. Contracts

There are two contracts that Plaintiffs allege TVA considered but did not cite to in the

record. The first is TVA’s contract with GE and the second is TVA’s Precedent Agreement with

ETNG. The question at hand is whether reference to promised goods in a contract means that the

decisionmaker considered the actual contract and its terms in its entirety. To be certain, the EIS

does reference the goods that ETNG and GE would respectively deliver if the contract was

accepted. The question this Court must address is whether the decisionmaker, in considering the

contract’s purported product and price, necessarily considered the terms of the contract itself such

that the contract was meaningfully “before” the decisionmaker. See Slater, 120 F.3d at 639. The

Court will address the GE contract first and then the ETNG contract.

TVA signed a contract and executed a purchase order in December 2022 with GE for power

island equipment intended for the Kingston plant. (Doc. 1 ¶ 279.) That power island equipment

included advanced-class gas turbine generators, steam turbine generators, and heat recovery steam

generators and associated equipment. (AR 055217–325.) There are several ways in which

Plaintiffs allege the GE contract was considered.

First, Plaintiffs allege that in a response to comments about the GE contract, TVA outlined

the scope of their commitments under the contract. (Doc. 29 at 14.) They state in order to analyze

the scope of TVA’s commitments and determine that it was not pre-committed, this determination

necessarily required a full review of the contract. (Id.) It is true that to outline the scope of TVA’s

commitments, they needed to know the scope of the full contract. But this is evidence that TVA

considered the contract in responding to the comment, not in coming to their decision about

whether to build the plant or in conducting their environmental review.

The comment made by plaintiffs inquired into the scope of TVA’s precommitments. TVA

was required to respond to this comment. 40 C.F.R. § 1503.4. Stating that TVA was not pre-

committed under a contract does not mean that the terms of the contract suddenly became a factor

in making the actual decision about whether to build the plant or in conducting its environmental

analysis. Under Plaintiff’s reasoning, any document, no matter how irrelevant, could be forced into

the administrative record by simply inquiring about it, even in the vaguest of terms; even a

response that states a document is not relevant would necessarily require an agency to be familiar

with the document. It is not apparent to the Court that considering the contract in response to a

comment means that TVA considered the contract in its decision-making. See Creation Ent., Inc.

v. SBA, 2025, No. 22-0684, U.S. Dist. LEXIS 121026, at *7 (D.D.C. Feb. 6, 2025) (“[T]he question

is not whether plaintiff made an effort at some point to put the material before the agency, but

whether the material was in fact considered by the agency….”).

Second, Plaintiffs allege there is evidence that the CEO, Mr. Lyash, directly relied on the

contract terms and price to come to a final decision on the TVA plant. (Doc. 29 at 15.) The Court

agrees.

Plaintiffs cite an email between Mr. Lyash and the Board about the GE contract as proof

that Mr. Lyash directly considered the contract. (Doc. 29-8.) That email informs the Board of the

existence of the GE contract. (Id. at 2.) The email says that “long-lead procurement actions are

needed to maintain TVA’s current preferred retirement and replacement schedule for the first unit

at Cumberland, and to lock in pricing on a potential CC plant at Kingston.” (Id.) Of course, “[t]he

fact that a document is merely mentioned does not lead to the… conclusion” that the

decisionmakers actually considered the document.” WildEarth Guardians v. Salazar, 670 F.

Supp.2d 1, 6 (D.D.C. 2009). But this is more than a mention of the contract; it is a clear statement

that Mr. Lyash considered the contract price, in particular, and the terms of the contract in coming

to his final decision. Mr. Lyash references these “long-lead procurement actions,” of which the

contract is one, as necessary for the retirement of the plant and future action. (Doc. 29-8 at 2.)

TVA states that the contract price is a “business decision” that is not relevant to whether

TVA took the requisite hard look at the environmental impacts of the project. (Doc. 30 at 21.)

But Plaintiffs are challenging the decision under both section 706 of the APA and NEPA, and

argue that TVA’s least-cost analysis and reliance on such analysis was arbitrary and capricious.

And “review of the whole record under section 706 [of the APA] is to be based on the full

administrative record that was before the agency decisionmakers at the time they made their

decision.” Pac. Shores Subdivision, 448 F. Supp. 2d at 4. Therefore, the cost-related information

considered in making the decision to build the plant is relevant to the APA challenge.

There is also evidence that the decisionmaker indirectly considered the contract through

his substantial reliance on the contract’s promised goods in the environmental impact statement.

A complete record should include “all materials that might have influenced the agency’s decision,”

and data that was “sufficiently integral to the final analysis that was considered by the agency”

upon which the agency relied heavily should be included in the record. Health v. Burwell, 126 F.

Supp. 3d 28, 59 (D.D.C. 2015). While the actual contract itself is not mentioned in the EIS,

products to be purchased pursuant to the contract are heavily presented in Alternative A. The EIS

references items that would be purchased under the GE contract in several places, which suggests

that the terms of the GE contract were meaningfully considered by the agency decisionmaker,

particularly in evaluating its cost. In particular, TVA’s use of specifications from items purchased

pursuant to the GE contract in its EIS shows that material terms in the contract were considered in

analyzing the environmental impacts of the contract. For example, in the section assessing the

natural gas resource costs, TVA lists the costs of the GE model 1x1 and 2x1 7HA.03 combined

cycle turbines. (AR 002789.) And in its modeled sound power levels analysis, the EIS analyzes

the sound power of the LM6000 simple-cycle combustion turbine, which is a GE Model turbine.

(AR 003251.)

It is hard to believe that the contract price and its promised goods were directly considered

by Mr. Lyash and by drafters of the EIS in coming to a final decision, but the actual contract itself

was not. The agency had the contract before it when it put forth the specifications that would

support Alternative A, because in order to pick the GE turbine as the presumptive turbine, the

agency had to consider whether the terms of the contract were amenable. It is hard to fathom that

Mr. Lyash blindly picked GE’s quotes and product without considering the contract under which

those products would be delivered. The goods contracted for are necessarily intertwined with the

underlying contract. Therefore, Plaintiffs have presented clear evidence that the decisionmaker

considered the contract. See Ohio Coal Ass’n, 2017 U.S. Dist. LEXIS 216950, at *6.

The second contract is the ETNG contract. Plaintiffs allege that TVA both directly and

indirectly considered the ETNG contract. (Doc. 29 at 16.) The Court does not find any evidence

that Mr. Lyash, or any other decisionmaker, directly considered this document. Plaintiffs cite to

the Waldrep declaration, where Mr. Waldrep, the Vice President of Major Projects at TVA,

references both the GE Contract and the ETNG agreement. (Doc. 29 at 8–9.) But as Defendant

correctly points out, Mr. Waldrep is not the agency decisionmaker for the project and the

declaration post-dates the Record of Decision and refers to a different project. (Doc. 30 at 21.)

Plaintiffs also allege that TVA indirectly considered the contract because, in response to

Conservation Groups’ comments on the draft EIS, they fully evaluated the scope of their

commitments under the contract. (Doc. 29 at 17.) This argument fails for the same reason as the

argument about the GE contract fails.

But there is evidence of indirect consideration. Plaintiffs argue that the final EIS explains

that “[u]nder Alternative A, ETNG would construct and operate a 122-mile natural gas pipeline

pursuant to an agreement with TVA,” and a footnote explains what a precedent agreement is.

(Doc. 29 at 16; AR 001876.) The actual Precedent Agreement is only mentioned once in the EIS,

in a footnote explaining the definition and existence of a precedent agreement. (Doc. 29 at 16; AR

001876.) But the administrative record does discuss the substance of what the contract promised

in that it analyzes the 122-mile natural gas pipeline that ETNG would build pursuant to the

contract. (AR 001804.) The Plaintiffs argue that “by issuing a final decision based on the Final

EIS, Mr. Lyash at a minimum indirectly considered the Precedent Agreement.” (Doc. 26 at 17.)

The Court agrees for the same reasons that the Court found the GE contract was indirectly

considered.

Here, there was heavy reliance on what the contract promised in presenting Alternative A.

This was a companion project to Alternative A, and the EIS “evaluate[d] related actions associated

with gas supply, including construction and operation by ETNG of a 122-mile natural gas

pipeline.” (AR 001804.) The EIS references where it would be located and the environmental

consequences of the pipeline. (AR 001830.) And finally, the EIS actually does reference the

Precedent Agreement, if only to explain the source of the 122-mile pipeline. (AR 001876.) Again,

it is hard to conceive how the decisionmaker could have relied on the contract’s material benefit

without considering the terms of the actual contract. The fact that a 122-mile pipeline would be

built necessarily relies on the existence of amenable contract terms. Plaintiffs have presented clear

evidence that the existence of the 122-mile pipeline was heavily relied upon by Mr. Lyash such

that the contract that produces that pipeline would have been indirectly considered by the

decisionmaker. See Ohio Coal Ass’n, 2017 U.S. Dist. LEXIS 216950, at *6.

2. Records of Expenses

Plaintiffs also seek to add two categories of “records of expenses.” They seek to add

records related to the GE contract and records of expenses from ENTG to TVA about the ninety-

four million dollars spent on the project by March 2024. (Doc. 29 at 6–7, 15–18)

The Court will first address the records related to the GE contract and Kingston Gas Plant’s

equipment. The Court is unclear what these “records of expenses” are or if they exist. Plaintiffs

“must identify the materials allegedly omitted from the record with sufficient specificity.” City of

Jewell, 968 F. Supp. 2d at 288. Plaintiffs cite to a filing with the SEC that stated “TVA had spent

$181 million on long lead time equipment in connection with this planned project.” (Doc. 29 at

7.) Plaintiffs also cite to a declaration where TVA’s Vice President of Major Projects, Roger

Waldrop, states that “TVA issued a purchase order to GE for the $20,025,798.10 non-refundable

down payment.” (Id.) Plaintiffs assume that there are records of these expenses that were before

the decisionmaker that are not in the administrative record. But assumptions about documents that

may or may not exist are not enough. Plaintiffs cannot merely “proffer[] broad categories of

documents and data that are likely to exist as a result of other documents that are included in the

administrative record.” Jewell, 968 F. Supp. 2d at 288. “[C]onclusory allegations that the

administrative record lacked unspecified reports” are not enough to overcome the presumption that

the agency correctly designated the record. Id. As such, the requests to complete the record with

records of expenses will be denied. 4

4 It is unclear whether this expense is the same as related expenses under the GE

Contract. (Doc. 29 at 13.) To the extent that Plaintiffs are referring to different records,

Plaintiffs have not proven what those related records of expenses under the GE Contract are and

The ETNG records are a closer call because there is at least some evidence these may exist

as discrete materials. That is because the Precedent Agreement required ETNG to submit “any

notice, request, demand, statement, or bill provided for in this Precedent agreement.” (Doc. 29 at

17–18, (citing AR 005192–93).) But evidence that TVA had the records of this expense does not

constitute evidence that TVA considered them. Plaintiffs have not shown clear evidence that these

records of expenses were considered by the decisionmaker, either directly or indirectly. Therefore,

the request to complete the record with these records is denied.

3. Financial and Systems Analysis

Plaintiffs also seek to supplement the record with TVA’s “financial and system analysis”

which is the analysis that TVA used to evaluate alternatives in the EIS. (Doc. 29 at 18–21; AR

002800) Plaintiffs allege that “TVA analyzed the ‘total system costs’ of various alternatives” and

based its finding that the Kingston Gas Plant would be the lowest cost alternative on that analysis.

(Doc. 29 at 19.) TVA represents that the analysis is “not a discrete document or documents or

even a compilation of discrete documents,” but rather “a process which utilizes standard

proprietary modeling tools and involves voluminous underlying source and/or raw data inputs and

outputs.” (Doc. 30 at 26 (citing Doc. 31 ¶¶ 11–20).) Clifton Lowry, TVA’s Vice President for

Planning and Investor Relations in TVA’s finance organization, confirmed in a deposition that it

“is not a single document or even a set of discernible documents.” (Doc. 31 ¶ 6.)

The Court must first discern what constitutes the financial and systems analysis sought by

Plaintiffs. After review of the record, the Court determines that the analysis refers to the raw data

that went into the Planning and Investor Relations’ determination of which alternative best met

TVA’s generation needs. (Doc. 31 at 7.) The Kingston EIS contains the results of the modeling

that they were considered in rendering a decision.

in Appendix B. (AR 002769–2803). This modeling started with the 2019 Integrated Resource

Plan, which “establish[es] TVA’s overall asset strategy and serves as a long-range, least cost

planning tool.” (Doc. 31 ¶ 9.) The modeling was used for subsequent site-specific projects like

the Kingston EIS and was adjusted to “evaluate the change in costs for the site-specific asset

decisions studied for Kingston.” (Id. ¶ 19.) TVA understands Plaintiff’s request to be “for the

disaggregated raw data which constitutes the underlying source data used in proprietary software

by TVA’s Enterprise Planning department.” (Doc. 29-2 at 6.) The data was inputted into

“proprietary modeling software licensed to TVA and interpreted by TVA subject-matter experts

with knowledge of TVA’s power system.” (Id. at 7.)

The analysis in Appendix B formed the basis for rejecting alternatives and played a role in

the least-cost decision made by the agency, the arbitrariness of which is at issue in this case. (Doc.

1 ¶ 306.) There is no question that the modeling results were considered by the decisionmaker;

they are included in Appendix B and were used to determine “which alternative best met TVA’s

generation needs at this site.” (Doc. 30 at 26.) The question is whether the decisionmaker relied

so heavily on the results that he indirectly considered the underlying source data. See Partners in

Forestry Co-Op., Northwood All., Inc., 638 F. App’x at 469.

Plaintiffs request access to the raw data underlying the conclusions in Appendix B. (Doc.

19 at 20–21.) “Where… raw data itself is at issue and was directly considered, analyzed, or

manipulated by the agency in the course of reaching its decision, that raw or underlying data is

properly considered part of the administrative record.” (Id. at 19 (quoting Univ. of Colo. Health,

151 F. Supp. 3d at 23).) Courts have also ordered agencies to supplement administrative records

with particular formulas, despite uncertainty about the form those formulas may take, if they were

used to arrive at particular statistics. See, e.g., Univ. of Colo. Health, 151 F. Supp. 3d at 20. But

the underlying source data does not need to be part of the administrative record if the data was not

actually considered by the agency. Univ. of Colo. Health, 151 F. Supp. 3d at 23.

Because the modeling results are integral to the least-cost planning tool, the underlying

source data is similarly integral to those conclusions and would aid judicial review. Plaintiffs here

have made a reasonably specific showing that the agency relied heavily on the analysis in making

its decision about which alternative was the least-costly alternative. Cf. Burwell, 109 F. Supp. 3d

at 51 (“Plaintiffs have provided a reasonably specific showing that the Agency relied on such

formulas in making decisions about the fixed loss thresholds and outlier payments which are

directly challenged in this case.”). The reliance on the analysis was heavy given that it served as

the basis for the rejection of alternatives. Therefore, the underlying data was at least indirectly

considered by the agency. The Court will order completion of the record with the underlying

source data that TVA used to arrive at the results in Appendix B of the EIS.5

The Court recognizes that some of these documents may be subject to certain privilege

limitations, including deliberative-process privilege. While Plaintiffs preemptively raised the

issue and included in their motion a communication between TVA and Southern Environmental

Law Center (Docs. 29-1, 29-2) debating the applicability of deliberative-process privilege, such

an issue was not raised in briefing by TVA. See Merit Med. Sys. v. Aspen Surgical Prods., Inc.,

No. 05-0040, 2007 U.S. Dist. LEXIS 17537, at *4 (W.D. Mich. Mar. 12, 2007) (declining to

consider “preemptive counter-arguments” made by Plaintiff). The deliberative-process privilege

inquiry is a separate inquiry from the completion inquiry and need not be decided at this moment.

TVA may raise such an issue, or any other issue related to privilege, disclosure, or sealing, in a

5 This does not include the proprietary modeling software licensed to TVA by third parties,

which the Plaintiffs have not sought to include. (Doc. 31 at 5.)

future motion which the Court will consider at that time.

B. Supplementation of the Record

Plaintiffs argue that, in the alternative, there is a sufficient showing of bad faith on behalf

of TVA to justify supplementing the record, or ordering extra-record discovery. APA review is

limited to “the administrative record already in existence, not some new record made initially in

the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). There must be a showing of bad

faith for a district court to consider documents that the agency did not consider. In supplementation

cases, the plaintiff “must make a strong showing of bad faith.” Latin Ams. for Soc. & Econ. Dev.,

756 F.3d at 465. This is consistent with the Supreme Court’s mandate to avoid “inquiry into the

mental processes of administrative decisionmakers.” Overton Park, 401 U.S. at 420. Staying

inside the limited record that existed at the time of the decision facilitates the Court’s role in APA

review as one where the Court “‘sits as an appellate tribunal,’ not a forum of first impression.”

Chamber of Comm. of U.S. v. SEC, 670 F.3d 537, 550 (M.D. Tenn. 2023) (quoting Am. Bioscience,

Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). Just as an appellate court would

typically not go outside the record on appeal, so too here. “Fishing expeditions in aid of

supplementing the administrative record are not permitted.” Beverly Hills Unified Sch. Dist. v.

Fed. Transit. Admin., CV 12-9861, 2013 U.S. Dist. LEXIS 165806, at *17 (C.D. Cal. 2013)).

Plaintiffs argue that “TVA acted in bad faith by conducting a sham NEPA review… only

after committing itself to the Kingston Gas Plant.” (Doc. 29 at 23 (emphasis in original).) But

mere existence of a contract does not establish the kind of predetermination and bad faith that

would allow this court to re-open discovery. Evidence of predetermination must meet a high

standard—it occurs “only when an agency irreversibly and irretrievably commits itself to a plan

of action that is dependent upon the NEPA environmental analysis producing a certain outcome

before the agency has completed that environmental analysis.” See Forest Guardians v. U.S. Fish

& Wildlife Serv., 611 F.3d 692, 715 (10th Cir. 2010); Metcalf v. Daley, 214 F.3d 1135, 1143 (9th

Cir. 2000).

Here, Plaintiffs have not made that showing. While Plaintiffs have shown that there were

two tentative contracts entered into to support Alternative A, this does not rise to the high level of

bad faith required to inquire into the mindsets of the decisionmakers. See Overton Park, 401 U.S.

at 420, and Latin Ams. for Soc. & Econ. Dev., 756 F.3d at 465. Importantly, the decisionmakers

explicitly stated that neither contract was an irreversible and irretrievable commitment, and that

any such contracts were contingent on the necessary regulatory approvals. (AR 002857–58.) The

agency did not hide the existence of the contracts, as evidenced by their references in Alternative

A and in their response to Conservation Groups’ comments. Such behavior indicates that the

agency was not acting in bad faith in conducting its review or compilation of the record.

Furthermore, this is a merits inquiry, and the Court does not need additional information

to determine whether the agency adequately considered the environmental impacts of the Kingston

Gas Plant beyond the 64,000 page record already submitted. See Ctr. for Bio. Diversity v. U.S.

Forest Serv., No. 3:17-cv-372, 2018 WL 7200718, at *9 (S.D. Ohio 2018) (“Plaintiffs conflate the

need for supplementation with the underlying merits of their claim.”) The Court will consider the

predetermination argument at the merits stage, but instantly, the high standard for bad faith has not

been met to justify extra-record discovery.

Because Plaintiffs have not demonstrated the requisite bad faith, the Court will DENY

Plaintiff’s motion to supplement the administrative record with the records of expenses, the Lyash

Email, TVA SEC Filing, and Enbridge SEC Filing.

IV. CONCLUSION

The Court WILL GRANT IN PART Plaintiff’s motion to complete the administrative

record (Doc. 28) with the unredacted GE contract, the unredacted ETNG contract, and the financial

and systems analysis. The Court WILL DENY IN PART Plaintiff’s motion to complete the

administrative record (Doc. 28) with the records of expenses. The Court WILL DENY Plaintiff’s

motion to supplement the administrative record (Doc. 28).

AN APPROPRIATE ORDER WILL ENTER.

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE