The National Environmental Policy Act (NEPA); Requirement to consider “a reasonable range of alternatives”; 42 USC § 4332(2)(C)(iii); Precommitting to the agency’s preferred alternative before completing the required environmental analysis; Request for a stay; Applying the factors governing a stay of an injunction to a motion for a stay of a vacatur order; Likelihood of success on the merits; The district court’s chosen remedy; The Administrative Procedure Act (APA); 5 USC § 706(2)(A); Availability of remand without vacatur; Irreparable injury; Harm to other parties; The public interest

Holding that defendant-TVA would likely succeed on the merits and that it would “likely suffer irreparable harm if forced to halt construction of the half-completed gas plant” at issue in this NEPA action, the court granted its request for a stay of the district court’s vacatur order and judgment pending TVA’s appeal. TVA was in the process “of replacing an aging coal-fired plant in Tennessee with a new multibillion-dollar gas-fired plant.” Plaintiffs-conservation groups sued “to halt the project six months after construction began. They did not seek a preliminary injunction, so” two years of litigation proceeded along with the construction. The district court granted plaintiffs summary judgment and “vacated TVA’s decision authorizing the plant” based on its finding of two NEPA violations. TVA moved to stay pending appeal. The court applied the factors governing a stay of an injunction in analyzing TVA’s motion for a stay of the vacatur order, as both sides invoked them. It first held that TVA would likely succeed on the merits of its appeal “for three reasons. The district court misread the phrase ‘range of alternatives’ in NEPA. It misread TVA’s Precedent Agreement with East Tennessee Natural Gas as precommitting the agency to the gas plant. And it wrongly ordered a vacatur remedy.” No one disputed “that only the gas plant—and no known alternative such as the solar option—would meet TVA’s purpose and need. In essence, then, the district court read the text to require an agency to consider two qualifying alternatives even when only one exists. This interpretation likely misreads NEPA.” Next, the court did not know where the “‘precommitment’ prohibition comes from. The parties’ stay briefs do not cite any statutory provision that bans agency ‘precommitments’ or ‘predeterminations.’” In any event, it found that even “if some precommitments violate NEPA (or the APA), TVA will likely show that it made no forbidden precommitment.” The court also held “that the APA likely permits remand without vacatur for NEPA violations.” Further, the two factors generally considered in deciding on the proper remedy showed “that the district court likely picked the wrong remedy.” In addition, the court found that TVA showed irreparable harm including “both lost money and a risk of power outages.” Finally, the balance of the last two factors left “no doubt that” it should grant a stay.