Monday, January 25, 2016

TDOT, IDB Seek Dismissal of Pipeline Suit

By Walter F. Roche Jr.

Tennessee's Attorney General is asking a Davidson County Chancery Judge to dismiss the suit brought by six landowners along the Nolichucky River who are seeking to block the use of a 12-mile pipeline by US Nitrogen.
In the motion and a 13-page memorandum, state attorneys charge that the six residents lack standing to challenge the legality of the permit issued by the Tennessee Department of Transportation to the Industrial Development Board of Greeneville and Greene County.
The memorandum also contends that sovereign immunity and separation of powers doctrines bar the court from even intervening in the dispute.
The state filing was joined in by the IDB through its attorney Jerry W. Laughlin.
The filing is the latest development in one of the remaining legal challenges to the pipeline which will be used by US Nitrogen to pump millions of gallons per day to and from the Nolichucky River. The company has constructed  a $200 million ammonium nitrate manufacturing facility in Midway that will use the river's water.
In an amended complaint filed last month, the plaintiffs in the suit charged that TDOT exceeded its legal authority when it issued the permit allowing the pipeline to built along the rights of way of two state highways. The suit charges that such permits can only be legally granted to public utilities serving the general public.
In its motion for dismissal, however, TDOT attorneys said that the suit should be dismissed on technical grounds without addressing the legal authority issue.
"The petitioners lack standing to pursue this challenge to the permit granted to the IDB; and the state has sovereign immunity from this complaint for declaratory relief," the memorandum states.
Contending that to bring the action the plaintiffs have to meet three legal standards, the motion concludes that not one of those standards was met.
Citing the plaintiffs' claims that their rights to the use and enjoyment of the river were in jeopardy, state lawyers argued that granting the permit in itself does not allow for the withdrawal of water from the river.
"It does not allow for the withdrawal or return of a single drop of water from the river," the memo states. "The petitioners are not claiming any damages based upon these transmission waterline, but rather the activities that are going to take place at either end of this project."
The memo states that were the suit to go forward "the state could face a myriad of lawsuits challenging the granting of a use and occupancy permit for any transmission lines."
In addition, the motion states that the alleged trespass complaints by two of the landowners would not be resolved by nullification of the permit, but should be resolved in already pending litigation in Greene County.
Citing separation of powers doctrines, the memo concludes, "The courts should decline for constitutional and practical reasons to shoulder  an agency's responsibilities."
The dismissal motion is scheduled for a Feb. 12 hearing before Judge Claudia C. Bonnyman in Nashville.

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