Abstract: 

This thesis argues that the Tennessee Valley Authority (TVA) Act, as currently applied, creates an unconstitutional “accountability vacuum” that unjustly captures 10 million Americans within a federal monopoly, denying them the energy freedom and market participation enjoyed by the rest of the nation. The analysis is grounded in a “Pro Se Plaintiff’s Prologue,” detailing a personal attempt to build a community solar microgrid in Cheatham County, Tennessee, following a major power outage. This attempt was blocked by the TVA “Fence,” a 1959 federal amendment, accompanying precedent, and subsequent contract provisions that largely prohibit Local Power Companies from purchasing electricity from any source other than the TVA. This paper challenges the TVA’s anachronistic structure by exploring novel constitutional claims: 

1. First Amendment: Obstructions to independent power producer interconnection violates the right to political speech through expressive conduct. 

2. Fifth Amendment: The TVA, by acting as both utility and regulator, denies citizens procedural due process for their statutory property rights under PURPA. The current lack of a TVA Board quorum renders administrative remedies futile, demanding federal court jurisdiction. 

3. Tenth Amendment: The Fence unconstitutionally commandeers state-chartered electric cooperatives to serve as federal enforcement agents and limits the Tennessee Public Utility Commission, displacing Tennessee’s core police power over energy policy. 

4. Commerce Clause: The TVA Fence creates a "Federal Dormant Commerce Clause" paradox, where Congress uses its commerce power to mandate the economic balkanization the Constitution was designed to prevent, unlawfully compelling market inactivity. 

Further supported by statutory claims against the TVA’s IRP for violating the Least Cost Planning mandate, this thesis concludes that the TVA Fence is an unconstitutional exercise of federal power. It requests judicial and policy remedies—including targeted injunctions—to tear down this "wall" and restore energy freedom to the Tennessee Valley.

I. Introduction 

The Tennessee Valley Authority (TVA) serves many important functions, including flood control, navigation, economic development, and power production. For the purposes of this research, “the TVA” and “the TVA Act” will refer specifically to those activities and authorizing sections which pertain to the energy sector, especially the generation, transmission, and wholesale marketing of electricity. Additionally, the TVA serves substantially all of the state of Tennessee, and its service area includes parts of Alabama, Mississippi, Kentucky, Georgia, North Carolina, and Virginia. For the purposes of this research, I will only be exploring TVA’s legal relationship to Tennessee and Tennesseans. 

A. Thesis and Roadmap: Tennessee Valley v. TVA 

The TVA Fence has barricaded the people of Tennessee from interstate commerce, creating a structural accountability vacuum that frustrates federal energy policy and chills the rights of its citizens. This thesis will explore legal recourse which Tennesseans may have against the federal government’s once-noble intrusion into the Tennessee energy sector. The analysis proceeds in three parts: 

1. Constitutional Challenges: I will analyze the vulnerability of the TVA Fence to claims that it violates the First Amendment (expressive conduct), the Fifth Amendment (procedural due process and property rights), the Tenth Amendment (commandeering of state entities), and the Commerce Clause (economic balkanization and compulsion of inactivity). 

2. Statutory Challenges: I will examine claims that the TVA has failed to comply with federal energy policy under the Public Utility Regulatory Policies Act (PURPA) and its duties under the National Environmental Policy Act (NEPA) and the Least Cost Planning mandate (16 U.S.C. § 831m-1). 

3. Policy Reform: I will explore and recommend legislative and structural policy changes at both the state and federal levels which will reorient the Tennessee energy economy toward a free-market, distributed-energy model that comports with principles of deep democracy. 

The express and stated goal of this research is to promote a clean, distributed energy generation and distributed asset ownership regime in Tennessee and the Southeast to satisfy the purposes of the TVA Act—namely, fostering regional economic development, enhancing national security, providing low-cost, reliable retail electricity, and stewarding the environment. 

B. Pro Se Plaintiff’s Prologue 

In December 2022, my wife Sandra and I found the perfect spot—a double-wide manufactured house on five acres, surrounded by a handful of similar lots and a few forty- and fifty-acre family farms. Down that dusty rural cul-de-sac, the quiet allows you to hear owls and foxes by night, and cows, chickens, horses, and children by day. I look across our pasture and dream of miniature sheep shaded by solar panels. 

In December of 2022, my wife Sandra and I found the perfect spot–a double wide manufactured house on five acres, surrounded by a handful of similar lots and a few forty- and fifty-acre family farms.1It is quiet down that dusty rural cul-de-sac, where you can hear owls and foxes by night, and cows, chickens, horses, and children by day. I look across our pasture and dream of miniature sheep shaded by solar panels. On March 1–3, 2023, intense wind storms ravaged Middle Tennessee, causing millions of dollars in damage to energy infrastructure.2 Many households experienced days-long power outages. Those who could afford generators either already owned them or rushed out to purchase them from big box stores. Others simply made do in the dark, camping out at home with candles and early bedtimes. 

On our street, we could see a handful of lights at nighttime. Sandra and I purchased a 2,300-watt gas-powered Ryobi inverter generator3to keep our fridge cold, log into our remote jobs, power the bedroom fan, and occasionally watch a movie or power the sheep fence. This small investment in energy resilience meant the disaster did not substantially impact our life. We could even check the generator’s output and fuel from our phones via Bluetooth. 

As two days turned into four, I began investigating outages in the territory of Cumberland Electric Membership Corporation (CEMC),4 the electric cooperative distribution utility in my area.5I found that CEMC had hundreds of transformers to service after the storms. Many served over 200 customers, and a handful impacted over 500. As I explored our neighborhood, I found our pad-mounted substation, which only served eight customers on my street. From a revenue standpoint, we were a much lower priority for CEMC, and the system likely required intervention “upstream.” On the fifth day, CEMC trucks finally came to our street. Within 15 minutes, we had grid electricity, and our meters started turning. Many other rural counties endured even longer outages. While this event did not substantially impact us (except for the time and money spent setting up the generator), it clearly demonstrated the fragility of the system I relied on. That winter had been particularly cold, forcing us to rely on heat in our energy-inefficient manufactured home. The following summer was brutal, and even with the air conditioning, we were often uncomfortably warm. An outage during these critical periods would prove disastrous. Furthermore, how much longer could an outage last in the event of a deliberate destruction of energy infrastructure? 

Along with some serial eco-entrepreneur friends, I began to dream of renewable energy generation cooperatives and microgrids. I started envisioning solar panels and battery storage—a microgrid behind CEMC’s substation on our dusty cul-de-sac, where we have plenty of open space. I quickly realized that Tennessee currently makes this impossible due to the Tennessee Valley Authority (TVA). 

Along with some serial eco-entrepreneur friends, I began to dream of renewable energy generation cooperatives and microgrids. I started envisioning solar panels and battery storage, a microgrid behind CEMC’s substation on our dusty cul-de-sac with plenty of open space. I quickly realized that in Tennessee, this was not possible currently due to the TVA. 

C. The Issue Presented 

The issue presented in this research explores the unique position the TVA holds in American Federalism. This position cannot be understood abstractly, but rather must be viewed, justified, or condemned based on the merits of its working history. We should laud aspects that generate tremendous success; however, those that generate externalities, chill constitutional rights, infringe on personal freedoms, or unduly burden interstate commerce require change. What was right in one era may be contraindicated in another. Values and realities that once superseded other concerns may no longer hold true. 

1. A Unique Position in Federalism 

The Tennessee Valley Authority (TVA) is an anomalous, hybrid entity within American federalism, blending the structure of a federal corporation with the autonomy of an independent agency. Congress created it as a federal corporation.6 It is also considered an independent agency with a historically autonomous Board of Directors composed of nine members nominated by the President and confirmed by the U.S. Senate.7 Most recently, the TVA’s autonomy has come under scrutiny,8 after President Trump removed three board members who President Biden had nominated and the Senate had confirmed.9 This action leaves only three board members, one-third of the number required by statute, and two fewer than the minimum needed for a quorum necessary to conduct several critical and regular decision-making duties.10 

The TVA territory covers nearly all of Tennessee and straddles the borders of six other states. It provides residential, commercial, and industrial electric service to nearly 10 million people, either directly or indirectly through 153 Local Power Companies (LPCs).11 Since 1935, TVA has directly employed between 9,000 and 28,000 people in the region, peaking in early 1942 during President Roosevelt’s New Deal era and wartime construction booms. More recently, TVA has not been immune to the federal employment pressures of the early days of the second Trump administration.12 Today it employs some 10,000 people. 

Unlike the four Power Marketing Administrations (PMAs) within the federal Department of Energy,13 which primarily provide transmission and/or marketing services for public power generation assets like dams, the TVA’s mandate is vast and quasi-sovereign. Congress tasked the TVA with economic development, flood control, navigation, reforestation, and national defense.14 Power generation was merely one tool Congress provided to TVA to achieve regional uplift. This comprehensive directive gives the TVA a "regional planner" role that no PMA possesses. 

Beginning in 1933, the federal government, through the TVA, began developing critical flood control and hydroelectric facilities throughout the Tennessee Valley.15 By 1966, TVA began developing Browns Ferry Nuclear Plant.16 The federal government was directly involved in building out transmission infrastructure and generation throughout the region, and this work is still ongoing. Today, TVA’s energy portfolio includes 3 nuclear plants, 4 coal plants, 17 natural gas plants, 1 diesel generator, 29 hydro plants, 9 solar photovoltaic plants, and 1 pumped storage hydroelectric plant. TVA manages another 5,000 MW of long-term contracted assets interconnected at the transmission level.17 

The four PMAs are primarily wholesalers and participate in a larger, competitive market. Electric utilities in the Pacific Northwest can buy electricity from the Bonneville Power Administration (BPA), but they also have other options. Congress does not authorize the federal government, via BPA, to interfere with the interstate commerce of a public utility in Oregon. Oregon LPCs can satisfy consumer demand by purchasing from BPA, building their own generation, buying from a private wind farm, or compensating customer-generators. On the other side of the country, the people of New Hampshire can democratically regulate the energy sector and the grid they use. This is not the case in the TVA territory. 

The TVA is not a wholesaler among wholesalers; it is the market. It operates as a vertically-integrated monopolist. It generates its own electricity, transmits it, and sells it via 153 captive LPCs within an exclusive service territory. 

Since the 1970s, the federal government’s approach to the energy sector has been deregulation, largely consisting of introducing competition where practicable and dismantling monopolies by unbundling core activities. President Carter’s administration passed the Public Utilities Regulatory Policies Act (PURPA), which this research explores below. The Federal Energy Regulatory Commission (FERC) adopted a policy of promoting interstate competition since 1996 when it issued Order No. 888, which required all public utilities to “functionally unbundle” their generation from transmission.18 This policy led to the creation of Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) that manage wholesale markets on behalf of member utilities, all closely regulated by FERC. The RTOs and ISOs act as referees for the competitive market, ensuring non-discriminatory access to transmission infrastructure, but they own no physical grid assets—no generation, no transmission. 

The TVA, on the other hand, embodies the anticompetitive, vertically integrated monopoly that PURPA and FERC Order No. 888 were designed to cure. It acts as both the referee and every team in the league. Sometimes the TVA contracts with outside players to participate in the major leagues, but minor leagues are all but forbidden. TVA owns and operates its generation portfolio and its own transmission system, making it the only game in town for the captive LPCs. Over the past 50 years, the structure and purpose of TVA have become anachronistic, with the citizens of 49 States protected equally by laws encouraging competitive energy markets, while Tennesseans are actively prohibited from the same. 

2. A People’s History of the TVA 

The TVA has a rich and storied history in the region. Unfortunately, system beneficiaries largely overlook its successes, while those same beneficiaries feel its failures almost exclusively. The TVA developed several hydroelectric dams, coal-fired and methane gas power plants, and a few nuclear reactors, powering the Tennessee economy for over 90 years. Since 2000, it has delivered 99.999% reliability19 and some of the lowest prices in the country thanks to early, long-term investments in dispatchable baseload resources like hydroelectric and nuclear generation.20 The TVA model was so successful in providing both flood control and affordable baseload electricity that it became a template for monopoly public power utilities across the world, including in Japan,21India,22 and Latin America.23 But while Congress shielded operations from risk through monopolization, this strategy imposed consequences. 

Recently, the TVA purchased 230 acres in Cheatham County, where my family owns five acres and grazes a few sheep. While TVA originally stated they would build a solar farm, they changed their plan to construct a 900 MW methane gas plant. The residents of Cheatham County did not want the gas-burning facilities in their neighborhood.24 They had little legal recourse because relevant authorities cannot exercise jurisdiction over this entity, which can behave as a private actor when it suits them and as the federal government when it suits them better.25 The proposed project would have tied into the interstate pipeline system, drawing methane from terminals on the coast of Louisiana. One could not drive down any back road or walk through the doors of a Waffle House in Cheatham County without seeing signs opposing the new facility. Fortunately, community pushback won the day.26 This is but one of many examples where individuals and local communities have exerted disproportionate effort to overcome federal bureaucracy without meaningful access to legitimate levers of accountability. 

In West Tennessee, Ford Motor Company is investing $2 billion in BlueOval City, a massive EV truck manufacturing plant. This will necessitate an enormous amount of new generation. Haywood and Shelby counties are over 50% African American, and the new generators will likely be methane power plants. With tight control of generation markets, this independent agency will effectively collude with the State government to force these communities to accept polluting technologies rather than allowing the development of alternatives distributed amongst themselves. While TVA is self-funded, it has creditors through bonds, not investors through shares. No Public Utility Commission has the authority to implement performance-based regulatory regimes, and no market mechanisms allow bondholders to hold the Board to account for anything but solvency. This creates an accountability vacuum that becomes particularly vacuous in the current absence of a Presidential appointment and Congressional oversight. 

This concern regarding accountability is not unfounded. Skepticism of the TVA runs bone deep in many parts of the region. In living memory, some Tennesseans know firsthand the impact of mass displacement, stemming from Congressional authorization for TVA to exercise eminent domain takings. TVA exercised this practice most notably in the construction of transmission and hydroelectric infrastructure. Some of our grandparents know precisely what the Old Crow Medicine Show means when they sing, “My home town is a half mile down, it’s a half mile o’ water all around, all around!”27 Famously, Mattie Randolph held the line for some time against the TVA’s reservoir clearance men with her family and a shotgun in 1935.28 George Clooney, Tim Blake Nelson, and John Turturro brought elements of these stories to life in 2000 in O Brother, Where Art Thou? when the Soggy Bottom Boys were saved from hanging but lost their treasure forever when the TVA flooded the Arktabutta Valley earlier than planned.29 Records indicate that some 15,000 families and 125,000 individuals were displaced during this early period.30 This mass displacement, powered by eminent domain, gave rise to a skeptical attitude: Is this about flood control, or federal control? This trend has continued in transmission siting and rights-of-way to this day. 

Then there were the disasters. In 1975, the Browns Ferry Nuclear Plant fire nearly caused a nuclear meltdown when a candle ignited flammable foam sealant in an electrical cable spreading room.31 The ensuing fire spread quickly, impacting controls for core cooling systems. The TVA plant superintendent did not allow local firefighters to extinguish the fire for approximately six hours due to uncertain procedure, narrowly avoiding a nuclear catastrophe resulting from disaster compounded by federal red tape. This left the TVA with a black eye in the public square of the Southeast. 

While answering numerous Nuclear Regulatory Commission investigations and Congressional inquiries regarding Browns Ferry, TVA also had to defend itself in TVA v. Hill,32 a famous case for environmentalists for the wrong reasons. When the snail darter, a tiny and endangered species, was discovered in the Little Tennessee River, a law student and their professor sued the TVA using the new Endangered Species Act (ESA). TVA had already spent over $100 million constructing Tellico Dam, but the Supreme Court (SCOTUS) found that Congress had made its intentions perfectly clear in the ESA. While the environmentalists prevailed in court, the TVA succeeded politically and actually, as Congress specifically authorized the completion of Tellico Dam after the SCOTUS ruling in 1978.33 This made the whole bureaucracy look absurd to the average Tennessean, even if both SCOTUS and Congress had legitimate interests in letting things run their course as they did to establish precedent. 

More recently, the TVA was responsible for the Kingston Coal Ash Spill of 2008, one of the largest industrial spills in history.34 Over a billion gallons of coal fly ash slurry flooded over 300 acres of residential and open space land. It carried arsenic, lead, and mercury into front yards, creeks, and living rooms. The sheer force of the spill was sufficient to lift entire homes from their foundations. The short-term cleanup efforts resulted in several lawsuits, as contractors were provided insufficient protective equipment, leading to cancer, lung disease, and death. The TVA is still monitoring remediation efforts, and ratepayers are still financing settlements today. 

Finally, the TVA’s own data does not lie: In 2020, leadership created “TVA Flex,” a program permitting LPCs to own and operate generation assets sufficient to produce 5% percent of their electricity demand for the first time in TVA history.35In 2023, 4% of the electricity sold via TVA transmission was from renewable sources,36 while the nationwide grid mix was around 21.4% renewable.37 That same year, Silicon Ranch, a leading solar project developer in the region, lauded TVA’s “Flex 2.0” enhancements which allowed LPCs to contract with independent power producers (IPPs) outside their service territory.38 When reached for comment, Eco Demo Law PLLC, an obscure regional law firm, characterized Flex 2.0 as “5% of catching up to PURPA, 50 years late.”39 

Looking to the future, the TVA’s 2025 Draft Integrated Resource Plan and Environmental Impact Statement (IRP/EIS) continues to linger incomplete without a Board capable of reaching a quorum to approve or reject a final version as of the publication of this research. The existing public draft does not analyze any scenario in which Distributed Energy Resources (DERs) play any role in TVA strategy.40Instead, it relies on additional pipeline infrastructure importing methane from terminals on the coast of Louisiana. 

Continued build-out of fossil fuel megaprojects puts Tennessee ratepayers at substantial risk for financing stranded assets in the likely event of carbon regulation or absorbing untenable shocks in energy markets. It excludes local communities from the distributed energy resource (DER) revolution, where energy dollars circulate in local economies seven times longer than conventional models.41It disallows Tennesseans from political and economic associations and expressive conduct affirming deep democracy, self-determination, environmental action, or all of the above. Tennessee seems to have fallen through a crack in federalism, and the levers of change are scattered across State and Federal lines with no immediately apparent authority or coalition for change. Can Tennesseans do anything about it? 

II. The TVA in se: A Federal Agent 

First, let’s examine the TVA in itself. What economic and political realities gave rise to this approach? How was the TVA Fence “constructed?” And what is different about the federal approach to energy regulation in the TVA to other federal programs? 

A. Economic and Political Backdrop 

The Tennessee Valley Authority (TVA). While the name sounds distinctly Southern, it is, in reality, a federal program. The TVA was not born in Tennessee, but in D.C., where President Roosevelt signed the TVA Act into law in 1933.42In a statement to Congress, President Roosevelt urged the Legislature to capitalize on existing national investment, leveraging momentum from World War I infrastructure build-out to push for more comprehensive national planning.43 This constituted a critical social policy, as the Tennessee Valley significantly lagged behind other states in energy infrastructure. 

President Roosevelt’s New Deal introduced sweeping federal reforms aimed at generating momentum across the economy. While the national average for rural electrification was roughly 10% in the early 1930s, only 3% of farms in the Tennessee Valley had electricity in 1933,44 compared to rates exceeding 50% in states like California and Utah. More broadly, the annual per capita income in the region was $168, compared to the national average of $376.45In the wake of the Great Depression, public investment was critical to restoring economic momentum. Policies fostering and mandating such investment included: 

● 1933: Public Works Administration – focused on large-scale infrastructure projects 

● 1933: Civilian Conservation Corps – dedicated to planting trees, fighting fires, and improving national parks 

● 1933: Agricultural Adjustment Administration – focused on strategic manipulation of crop prices 

● 1933: Federal Deposit Insurance Corporation – insured bank deposits to prevent runs on banks 

● 1934: Securities and Exchange Commission – regulated the stock market to prevent the fraud that led to the Great Depression 

● 1935: Rural Electrification Administration – provided low-cost federal loans and technical assistance for cooperative utilities 

● 1935: Works Progress Administration – served as a direct employment agency constructing public buildings and roads 

● 1935: Social Security Administration – established a federal safety net for the elderly and unemployed 

In addition to these mostly enduring legacy programs, the federal government targeted the Southeast with a new independent agency: the TVA. The region floundered after the post-Civil War Reconstruction era, largely bypassed by the Gilded Age and resistant to the Progressive Era. The Great Depression and multiple natural disasters further crushed the regional economy, necessitating outside intervention. 

B. The TVA Fence 

     The Federal government authorized the TVA to exercise eminent domain and granted them a monopoly in the southeast for the generation and transmission of electricity.46In 1959, Congress amended the TVA Act to include what is now commonly referred to as “The TVA Fence.”47 The amendment, codified at 16 U.S.C. § 831n-4(a), provides in relevant part that: 

Unless otherwise specifically authorized by Act of Congress the Corporation shall make no contracts for the sale or delivery of power which would have the effect of making the Corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power supply on July 1, 1957, and such additional area extending not more than five miles around the periphery of such area as may be necessary to care for the growth of the Corporation and its distributors within said area… 

While a plain reading of this amendment would merely suggest a constrained service area for this independent agency, the Courts have interpreted it along the lines of field preemption for the purposes of Tennessee. In Hardin v. Kentucky Utilities Company, the Supreme Court (SCOTUS) held that this section, in which Congress authorized bond payments for activities within a constrained territory, created a de facto monopoly territorial grant sufficient to overcome antitrust considerations.48 This decision vested TVA with the authority to exclude competitors in its service territory for the next 60 years. 

C. Federal Developments around the TVA 

       Since the TVA's inception, the energy sector has undergone several regulatory overhauls and regime changes. Early purposes of energy regulation included expanding the electricity grid and ensuring universal access to service where conventional market forces lacked adequate incentives and moved too slowly to satisfy the demands of social policy. As access became more ubiquitous, the purpose of energy regulation evolved from pure economic deployment to focusing on the system's qualities and attributes, with the development and management of competition driving change.49 This shift crystallized in the Public Utilities Regulatory Policies Act (PURPA). Importantly, TVA receives special treatment under these statutes. At the time the first electricity generators ran wires to their customers, a geographic monopoly seemed natural. Why would territories criss-cross? Why would the same company not run the generators and manage the wires and poles? The model of local monopolies persisted as electric companies began linking their systems, forming the vast, interconnected transmission, distribution, and generation network we know today as the grid. This horizontal agglomeration increased reliability and access but also entrenched the power of large, vertically integrated utilities. By the mid-20th century, massive, regulated monopolies that controlled generation, transmission, and distribution defined the electricity sector, leading to little incentive for innovation or competition. 

Enter the Public Utility Regulatory Policies Act of 1978, or PURPA. Congress passed PURPA in 1978 as part of the National Energy Act. President Jimmy Carter made energy policy a top priority of his administration. In an address to the nation broadcast via radio and television, President Carter spoke of an energy crisis and his forthcoming energy proposals to Congress. He asked the nation to prepare for the difficult effort of transition, which he likened to the Industrial Revolution and “the moral equivalent of war, except that we will be uniting our efforts to build and not to destroy."50 PURPA was one of five key pillars of his approach found in the National Energy Act of 1978.51 PURPA promotes energy conservation, the use of domestic energy, and the development of renewable energy. 

This law was enacted in direct response to an energy crisis. In October 1973, the Organization of Arab Petroleum Exporting Countries (OAPEC) implemented a total oil embargo against countries that had supported Israel during the 1973 Yom Kippur War, the fourth in a series of conflicts over the Sinai peninsula and other territories.52 Countries directly impacted by the embargo included the US, Canada, Japan, Netherlands, Portugal, Rhodesia, and South Africa. In 1974, Congress passed the Federal Energy Administration Act, creating an independent agency tasked with regulating fuel prices, managing the strategic petroleum reserve, collecting energy data, and promoting energy conservation and planning. Secretary of State and National Security Advisor Henry Kissinger under President Richard Nixon announced Project Independence, with the goal of achieving United States energy self-sufficiency by 1980. OAPEC lifted the embargo by March 1974, but the price per barrel of crude oil had risen 300% in just five months, particularly high in the U.S., leading to long lines, shortages, and rations. The price shock, lasting just five months, revealed how fragile the energy system was, causing immediate damage with lasting political, economic, and cultural impacts. 

By 1977, Congress passed the Department of Energy Organization Act, which absorbed the independent energy administration into a department with a Cabinet secretary. President Carter championed the cause of energy independence, security, and diversity, and signed PURPA into law in 1978. Its main purpose was to promote energy conservation, increase efficiency, and reduce the nation's dependence on foreign oil by encouraging domestic energy production, particularly from renewable and alternative sources. 

Prior to PURPA, energy companies were regulated as natural monopolies. This meant the same company would generate, transmit, and distribute your electricity within a defined service territory. A key provision of PURPA created a new class of power generators called "Qualifying Facilities” (QFs).53 These include small power producers using renewable energy like solar and wind, and cogeneration facilities that produce both electricity and useful heat simultaneously. To foster a competitive market, PURPA mandated that electric utilities must purchase power from QFs at a price no greater than the utility's "avoided cost"—the cost it would have incurred to generate or purchase the power itself. This guaranteed market spurred the development of countless independent power projects, effectively breaking the traditional monopoly of large utilities over electricity generation. Decoupling transmission, distribution, and generation gave rise to multiple private actors, each with its own incentives to innovate, conserve, and compete, driving down prices for ratepayers. 

The relevance of PURPA has been significantly minimized in regions that developed robust, competitive wholesale energy markets. Congress recognized this shift in the Energy Policy Act of 2005 (EPAct 2005), which amended PURPA to allow the Federal Energy Regulatory Commission (FERC) to terminate the mandatory purchase obligation for QFs in areas with nondiscriminatory access to competitive wholesale markets, such as those administered by Regional Transmission Organizations (RTOs) or Independent System Operators (ISOs). This means that in most parts of the country with organized markets, small generators now compete directly in the wholesale market, reducing the need for the guaranteed purchase price mechanism. 

PURPA remains necessary today. More recently, Vladimir Putin’s invasion of Ukraine sent shock waves through the political ecosystem and energy market across the world. While the European Union and supporters of Ukraine try to disentangle from dependence on Russian methane and petroleum, Russian sales shift to allies in India and China. This revenue trickles into the Kremlin's war chest, allowing the war to drag on. PURPA was designed specifically to protect the American people from these kinds of economic and political pressures. Distributed energy resources such as qualifying renewable energy facilities and rooftop solar arrays insulate the U.S. energy market from fluctuations in fuel price. Generators with free fuel and a 25–40 year life span are significantly less susceptible to contemporary strong-arm tactics than pipelines with an off-switch and a constant need for fuel inputs. 

President Carter even put solar panels on the White House in 1979, and numerous state legislatures created renewable portfolio standards, requiring utilities to ensure a certain percentage of the electricity they provide is renewable. These forward-looking policies created market demand, which incentivized supply chain development, which drove down prices, making renewables cost-competitive and, in many applications, a market leader. Renewables already occupy a significant market share, and complimentary growth in efficiency, electrification, and storage continues to enhance the flexibility of American energy demands. 

The federal mandate in PURPA created a non-negotiable floor for all 50 states: a utility cannot refuse to interconnect a QF. However, the unique structure of the TVA effectively exempts the region from the most crucial, competitive aspects of PURPA. The TVA itself is deemed the state regulatory authority for the Local Power Companies (LPCs) over which it has ratemaking authority, which includes most of the region's utilities. The TVA, unlike state Public Utility Commissions (PUCs), is also the vertically-integrated utility that owns the transmission system and the generation assets that compete with potential QFs. 

This makes the TVA subject to Title I of PURPA, which mandates the consideration of various regulatory standards, but grants the TVA itself the authority to determine their appropriateness for the LPCs. For instance, following the Infrastructure Investment and Jobs Act of 2021 (IIJA), the TVA Board reviewed and ultimately adopted revised standards for Demand Response and Electric Vehicle Charging, asserting its role as the regulatory authority and ensuring the standards are consistent with the TVA Act. 

Crucially, however, the TVA Fence (16 U.S.C. § 831n-4(a))—the de facto monopoly that prohibits LPCs from purchasing power from any source other than the TVA—operates as a definitive block to the central mandate of PURPA Section 210: the requirement that utilities must purchase power from QFs. Because the TVA is the sole market, and its contracts with LPCs forbid the purchase of power from independent generators, the right to sell power that PURPA grants to QFs elsewhere is nullified in the Tennessee Valley. 

While the rest of the federal government’s energy policy emphasized “deregulation” and promoted free markets and competition throughout the nation, Tennesseans did not enjoy the same. Instead, federal overreach and maladaptive State policy evolved to accommodate an unconstitutional federal field preemption, creating an additional layer of legal complexity. Now we see communities in 37 States plus D.C. and Puerto Rico with statewide interconnection procedures, giving their citizens and communities the ability to benefit from community solar projects, microgrids, and other DERs.54 Those 12 other States that have not promulgated such statewide rules still have a Public Utility Commission (PUC) or similar adjudicative body that has appropriate authority to referee between QFs and utilities denying interconnection. Tennessee alone is beholden to a utility that can both disallow interconnection in violation of PURPA and act as the judge presiding over the same matter. 

III. Legal Strategies Forward 

Turning to legal strategies, research indicates three colorable pathways toward resolution: litigating Constitutional challenges to the TVA Fence, litigating statutory challenges to TVA’s 2025 IRP/EIS, and policy reform. 

A. Constitutional Challenges 

As a principle matter, we must first explore when the Courts will review economic legislation, and who may assert standing. Then I will explore claims under the First, Fifth, and Tenth Amendments. Finally, I will turn to the Commerce Clause. For all four claims, I will assume the following fact pattern: 

After a multi-day power outage, neighbors on Fannie Nicholson Road in Cheatham County, TN, decided they wanted to solve the problem themselves. They had heard of a concept called a microgrid, which people were developing on the Northeast and West Coasts, and wanted to build a similar system so that if Cumberland Electric Membership Corporation (CEMC) were to experience another power outage, they would at least be able to cover the basics. They formed Fannie Pack LLC, signed a 25-year lease with one of the members for two acres of land, and ordered approximately $300,000 in solar panels, inverters, racking, a large battery, and fencing. Their members included an accountant, an electrician, a general contractor, and an attorney, all of whom were licensed and offered services as capital contributions—conservatively investing $100,000 in labor. 

After local permitting was completed and site preparation finished, the materials arrived, and construction began. However, as the project neared completion, the team realized they had a major problem: Fannie Pack had not secured an interconnection permit from CEMC. As they worked with CEMC, they came to understand the complexities of the mess they had just stepped in. CEMC was interested in promoting the local energy economy and wanted to work with the LLC, but could not authorize interconnection because both the TVA Act and Tennessee state law prohibited CEMC from purchasing electricity from anyone but the TVA. 

Fannie Pack had no intention of “selling” electricity (at least as they understood it); they only wanted to create a microgrid behind the last CEMC substation in case the power ever went down again. They also assumed this project would help them lower their electric bills over time. Their lawyer knew enough to know that they would either need to interconnect with CEMC or form a public utility, which involved a much greater regulatory headache than they anticipated. But even then, the TVA Flex program would only allow their hypothetical utility to generate 5% of its own electricity, and they anticipated their assets would generate over 70% of their current electricity demand. 

Fannie Pack's attorney formally declared the microgrid a Qualifying Facility (QF) under PURPA and submitted an interconnection request to CEMC. The request was formally denied, citing the exclusivity provisions of the TVA's wholesale power contract (the "Fence"). Fannie Pack's attorney then sought an administrative appeal of the denial to the TVA Board, asserting their statutory property right to sell power at avoided cost under PURPA Section 210. The TVA General Counsel's office informed Fannie Pack that due to the lack of a statutory quorum on the TVA Board, the Board was legally incapable of convening to hear the contested regulatory dispute. 

In addition to serving local residential load, Fannie Pack intended to aggregate its excess generation capacity and sell it into the interstate wholesale market using a Virtual Power Plant model, but the TVA Fence prevented the Local Power Company from entering into any such contractual arrangements. In the interest of self-determination and environmentalism, angry about the inability to freely contract with their neighbors, outraged that they are regulated differently than citizens of other states with no apparent rational basis, and disliking the federal government squashing good ideas on their street, Fannie Pack decided to sue in the District Court of Middle Tennessee, alleging the TVA Fence violates the First, Fifth, and Tenth Amendments to the U.S. Constitution; and that the TVA Fence is not a valid exercise of Congressional power under the Commerce Clause. 

1. Standing 

Fannie Pack LLC possesses the standing that previous challengers to the TVA have lacked. In Protect Our Aquifer,55the Western District of Tennessee dismissed claims brought by conservation groups because their alleged injuries—such as the “diminished value of private solar power systems” and the generalized harm of “paying more for dirtier energy”—were deemed speculative and widely shared grievances rather than concrete, particularized harms. Unlike those plaintiffs, Fannie Pack is not merely an advocacy group lodging a policy complaint; it is a market participant with a shovel-ready project that the TVA’s regulatory regime has affirmatively blocked. Fannie Pack does not allege a hypothetical future injury based on climate impacts; it alleges a direct, present-tense injury: the sterilization of capital investments and the prohibition of expressive conduct on specific real property. 

Under the tripartite test established in Lujan v. Defenders of Wildlife,56 Fannie Pack LLC satisfies the “irreducible constitutional minimum” of standing. 

1. Injury-in-Fact: Fannie Pack demonstrates this through the $400,000 in “brick and mortar” assets—solar panels, batteries, and labor—that are currently rendered useless by the TVA’s exclusivity contracts, as well as the deprivation of its statutory entitlement to a PURPA hearing without due process. 

2. Causation: This economic and procedural injury is fairly traceable to the TVA’s enforcement of the “Fence” (16 U.S.C. § 831n-4(a)) and its Board’s incapacity to adjudicate the interconnection dispute. 

3. Redressability: A favorable decision—whether a declaratory judgment invalidating the Fence or a mandatory injunction submitting the dispute to the Federal Energy Regulatory Commission (FERC)—would immediately “un-sterilize” the assets and allow the project to energize, thereby directly curing the injury. 

2. Judicial Review of Economic Legislation 

In general, the Courts avoid reviewing economic legislation.57 Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system.58 To challenge a non-uniform Congressional exercise of Commerce powers, claimants must show an “injurious character” of the policy in question.59 

Claimants alleging Due Process violations under the Fifth and Fourteenth Amendments must show a liberty or property interest. The Courts recognize governmental benefits, licenses, and permits as "property" subject to Due Process protections.60 Uniformity of regulation may be necessitated by national concern.61 Transferring property from private parties to private parties in a comprehensive redevelopment plan to accomplish a public purpose established by Congress does not violate the Due Process Clause so long as just compensation is paid.62 Legislation that retroactively adjusts rights and burdens is not unlawful solely because it upsets otherwise settled expectations, especially where new data reveals new realities in law or science.63 

3. First Amendment Claim 

The First Amendment protects the "right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances".64 This right includes the right to associate with others in pursuit of political, social, and economic ends.65 Conduct qualifies as protected speech if there is an intent to convey a particularized message, and the likelihood is great that the message would be understood by those who viewed it.66 

Fannie Pack LLC is not merely a widget factory; it is a vehicle for shared political and environmental values. The members are expressing their respective views on environmental matters in a region where the federal government provides only 4% renewable energy; asserting their right to self-determination where the federal government permits days-long outages and permit denials impact local economies; and protesting government overreach that strips Tennessee of its power to meaningfully regulate its energy sector. Tennesseans banding together to form a community solar project in the face of Tennessee’s unique history under TVA is, in itself, speech protected by the Freedom of Association. 

The product of Fannie Pack LLC is also itself expressive conduct. By building a visible solar microgrid in Cheatham County—where the TVA recently attempted to strong-arm residents into accepting a polluting 900 MW methane gas plant—Fannie Pack is broadcasting a specific message: 'We reject the federal monopoly's reliance on fossil fuels and assert our independence.' In 2025, solar panels are widely understood symbols of environmentalism and independence. The conduct of generating one's own power is the only effective, tangible way to convey this message of self-reliance against a federal monolith. 

When governmental regulation of conduct incidentally restricts speech, courts apply the four-part test established in United States v. O’Brien.67 The TVA Fence68is ostensibly a content-neutral regulation—it regulates the economic transaction of selling power, not the political message of the microgrid—thus subjecting it to intermediate scrutiny. A regulation restricting both "speech" and "nonspeech" elements is sufficiently justified if: 

1. It is within the constitutional power of the Government. The TVA Act's authorization to construct, transmit, and sell power is a valid exercise of Congress’s Commerce and Property Clause powers, affirmed in the 1930s to accomplish a public purpose. This factor is satisfied. 

2. It furthers an important or substantial governmental interest. The government interest asserted here is the maintenance of grid reliability, safety, and financial solvency for the federal corporation. These are generally considered substantial governmental interests. This factor is satisfied. 

3. The governmental interest is unrelated to the suppression of free expression. The original 1959 purpose of the TVA Fence was financial: to restrict the TVA’s geographic expansion and protect its bondholders. Its purpose was not to target political dissent. While its effect is to silence dissent, its core interest is purely economic and technical, so the interest is deemed unrelated to the suppression of expression. This factor is satisfied. 

4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. This is the crucial point of failure for the TVA Fence. 

The TVA Fence fails the fourth prong of the O’Brien test because it is grossly overbroad and is not narrowly tailored to the government’s interest in grid reliability and safety. The government's interest is protecting grid stability; however, the Fence is a categorical, absolute ban on third-party electricity purchase by Local Power Companies (LPCs). This total prohibition suppresses far more expression and commerce than is necessary. A law that merely required Fannie Pack's microgrid to undergo standardized safety and interconnection procedures—procedures that exist in the rest of the country—would fully serve the governmental interest in grid reliability without stifling the expressive act of creating a resilient, community-owned system. 

The existence of competitive energy markets and robust Distributed Energy Resource (DER) integration in 49 states serves as definitive proof that the government's interest can be accomplished through a less restrictive means. For example, the Institute of Electrical and Electronics Engineers (IEEE) standard 1547 provides the technical safety protocols necessary for grid interconnection, which utilities across the nation successfully enforce while permitting community solar. By choosing a total ban over technical regulation, Congress and the TVA have burdened substantially more speech and association than is necessary, rendering the Fence unconstitutional as applied to these Plaintiffs. 

Because the TVA Fence acts as an unconstitutional prior restraint on the protected expressive conduct of forming associations for community solar and microgrids, Fannie Pack LLC is entitled to relief. Prior court decisions, such as those concerning symbolic speech in Tinker v. Des Moines and other expressive conduct cases, support the principle that non-verbal, symbolic acts intended to convey a political message are protected. While there are no prior rulings directly on microgrids as expressive conduct, the legal foundation established in O'Brien clearly allows for the classification of this public, political action as protected speech. Fannie Pack should request a Declaratory Judgment that the TVA Fence is unconstitutional as applied to the prohibition of forming associations for community solar and microgrids, as it burdens substantially more speech than necessary to ensure grid reliability; and a Permanent Injunction enjoining the TVA from enforcing the exclusivity provisions of its contracts with its captive distribution utilities, thereby removing the federal barrier to this expressive conduct. 

4. Fifth Amendment Claim 

In Tennessee, the Tennessee Valley Authority (TVA) operates as both a wholesale power monopolist and the sole regulator for its Local Power Companies (LPCs), creating a constitutionally deficient hearing process wherein the defendant is also the judge. This is not an overcharacterization. Its core function is that of a utility: it generates, transmits, and sells electricity to approximately 10 million people across seven states through a portfolio that includes nuclear, coal, natural gas, hydroelectric, and solar generation. At the same time, Congress explicitly names TVA as the regulatory authority for the electric utilities over which it has ratemaking authority. This special classification means that while it acts as a utility (generally, the “regulated community”), it also fulfills the role of the regulator (generally, the “Public Utility Commission”) within its service area for purposes of considering PURPA standards. 

While substantive economic due process rights of Tennesseans to participate in the distributed energy resource (DER) revolution are substantial, nearly 90 years of precedent have made substantive due process claims nearly insurmountable.69 However, a strong procedural due process claim remains regarding the inadequacy of review for DER interconnection in TVA territory. 

The TVA Act requires that the TVA Board must consist of five members to constitute a quorum for the transaction of business. Currently, the Board has only three members. While Section 831a(e)(2) provides that a vacancy shall not impair the power of the Board to act, the Supreme Court clarified in New Process Steel, L.P. v. NLRB (2010) that quorum requirements establish a floor, with vacancy provisions applying only to numbers in excess of quorum. The Court analyzed nearly identical provisions of the National Labor Relations Act of 1935, which established another independent agency of the federal government. Where there is no quorum, no adjudicative body is present that can lawfully transact business.70 

The Board’s quorum failure is critical because, as the deemed "regulatory authority" for its LPCs under Title I of PURPA, the Board acts as the ultimate administrative appeals body for major regulatory disputes, including the required mandatory purchase provision of PURPA Section 210. While routine interconnection applications may be handled by staff, any contested decision, such as the categorical denial of a Qualifying Facility (QF) interconnection request by an LPC (like CEMC) based on the TVA Fence exclusivity contracts, must ultimately be adjudicated or reviewed by the TVA Board. The Board is the only body with the statutory authority to approve or reject the long-term contracts (the Power Supply Contracts) that contain the exclusivity provisions, and thus it is the only body that can provide relief from the restriction that Fannie Pack challenges. When the Board lacks a quorum, it is rendered incapable of rendering a binding, final agency decision in such contested cases. 

Under Coit Independence Joint Venture v. FSLIC (1989), the Supreme Court held that "administrative remedies that are inadequate need not be exhausted".71 The Court further clarified that a "lack of a reasonable time limit in the current administrative claims procedure renders it inadequate".72 The lack of two TVA Board members, barred in time by the lengthy Presidential appointment and Senate confirmation process, renders the TVA Board incapable of adjudicating an interconnection application for a QF in CEMC territory. This constitutional defect renders the administrative remedy futile (Coit), granting the federal courts immediate jurisdiction for de novo consideration. 

A claimant may allege a property interest protected by the Fifth Amendment Due Process Clause by showing a "legitimate claim of entitlement" created by statute.73 PURPA Section 210 requires electric utilities to purchase electricity from QFs at the utility's "avoided cost". Post-Loper Bright Enterprises v. Raimondo (2024), courts owe no deference to the TVA's interpretation of its enabling statute or PURPA. Courts must exercise independent judgment interpreting statutory provisions using traditional tools of construction without deferring to agency interpretations. The statute's mandatory language—"shall purchase"—creates an unambiguous obligation. No deference is owed to the TVA's contrary interpretation that it may categorically exclude QFs through wholesale contract exclusivity provisions. A QF meeting statutory criteria possesses a legitimate claim of entitlement—a property interest—to interconnect and sell electricity at avoided cost rates. The TVA, through its exclusive control of the wholesale market and contracts with distributors, effectively deprives QFs of that property right. 

The next stage in every other state after a QF is denied interconnection by a public utility would be to appeal to the state Public Utility Commission (PUC) or another body vested with such powers. In Tennessee, however, the TVA is its own regulator, creating a constitutionally deficient hearing process wherein the defendant is also the judge.74 QFs are thus denied an impartial, independent tribunal to adjudicate their claims, because the TVA is an interested party. The Fifth Amendment guarantees that when government deprives a person of property, it must provide a fair process before an impartial tribunal. The Supreme Court has consistently struck down adjudicatory processes where the decision-maker has a disqualifying interest: 

● In Tumey v. Ohio (1927), the Court held that adjudication by a decision-maker with "a direct, personal, substantial, pecuniary interest" in the outcome violates due process. 

● In Ward v. Village of Monroeville (1972), the Court extended this principle to structural conflicts where the adjudicator's institutional interests created bias. 

● In Gibson v. Berryhill (1973), the Court invalidated adjudication where board members had competitive interests adverse to the parties. 

The TVA possesses multiple disqualifying interests that violate this command: 

1. Financial Interest: Every kilowatt-hour a QF sells reduces the TVA's wholesale revenues, as the TVA must purchase less power itself. 

2. Competitive Interest: Distributed Energy Resources (DER) directly threaten the TVA's centralized generation model and its capital-intensive fossil fuel expansion plans. 

3. Territorial Interest: QF interconnection erodes the TVA's exclusive monopoly, which the "Fence" was designed to protect. 

4. Operational Interest: Distributed generation challenges the TVA's billions in existing or planned generation investments, creating the risk of stranded assets. 

Recent Supreme Court decisions, such as Lucia v. SEC (2018), emphasize that adjudicators must operate within constitutional bounds. As Lucia established, when constitutional defects taint adjudication, the remedy is "a new hearing before a properly appointed official"—here, an independent tribunal. 

Because the TVA is incapable of providing a constitutionally sufficient hearing on the appeal of a QF interconnection application denial, federal courts should grant either: 

1. A Mandatory Injunction: Order the TVA to submit interconnection disputes to the Federal Energy Regulatory Commission (FERC) for de novo review under PURPA § 210(h), thereby bypassing the incapacitated TVA Board and the structural conflict of interest; or 

2. An Injunction: Prohibit the TVA from enforcing the exclusivity provisions of its power supply contracts against QFs, thereby permitting local cooperatives to comply with PURPA § 210 without contractual penalty. 

The constitutional command that no person may be judge in their own case applies with equal force to federal agencies with billion-dollar stakes in maintaining territorial monopolies. 

5. Tenth Amendment Claim 

The resolution of the conflict between the Tennessee Valley Authority (TVA) Act and the Public Utility Regulatory Policies Act of 1978 (PURPA) requires the application of fundamental rules of statutory construction. These rules dictate that courts must look to the most recent, specific intent of Congress—an intent clearly embodied in PURPA. Therefore, the TVA Act and the accompanying "TVA Fence" must be interpreted to harmonize with PURPA, and PURPA's clear directives should not yield to the Fence. 

When two federal statutes appear to conflict, the courts resolve the tension by giving effect to the most specific and most recent expression of congressional will. The TVA Act, at its core, is a broad statute aimed at regional economic development (navigation, flood control, and power production). In contrast, PURPA is a narrowly tailored, specific statute designed to achieve two precise goals: fostering competition and ensuring interconnection for qualified power facilities. Under the canon of specific controls the general (generalia specialibus non derogant), the specific and focused provisions of PURPA regarding interconnection and competition should govern over the broad economic mandate of the TVA Act. 

The TVA Act was enacted in 1933, creating a broad federal power producer and regulator. PURPA was enacted 45 years later in 1978. As the later-enacted statute, PURPA represents the most recent and relevant expression of Congressional policy regarding utility competition and interconnection. This rule further supports the conclusion that the TVA Act must be read in light of, and yield to, PURPA's specific directives. 

Reading the TVA Act as a whole confirms its broad, economic development purpose, supporting the conclusion that it is the general statute in this conflict. Crucially, the "TVA Fence" (16 U.S.C. § 831n-4(a)) is often a product of judicial interpretation and contractual obligations (the "all-requirements" contract) rather than an explicit, current statutory mandate from Congress itself. PURPA, by contrast, provides clear, affirmative, statutory duties for electric utilities, including the obligation to purchase power and interconnect with qualifying facilities. The court should reject a judicially-created or contract-based barrier (the Fence) when it conflicts with an express, later-enacted federal statute (PURPA). 

The conflict also implicates the Tenth Amendment, which reserves to the States or the people all powers not delegated to the federal government. The TVA Fence, as enforced through the "all-requirements" contract, does more than merely regulate commerce; it effectively preempts the State of Tennessee's historic police power to regulate the health, safety, and welfare of its citizens, specifically in the critical area of energy policy and reliability. States like Tennessee could otherwise enact laws to encourage local energy generation, such as community solar, as 24 other states have successfully done. The TVA's action displaces this state sovereign authority within its own borders. 

Electric Cooperatives like Cumberland Electric Membership Corporation (CEMC) are creatures of Tennessee state law (the Electric Cooperative Act). The TVA, through its contractual Fence, effectively commandeers these state-chartered entities. This legal relationship forces the cooperatives to act as mere administrative outposts of a federal monopoly and prevents them from exercising powers—such as purchasing power from competitive generators and setting rate structures—granted to them by the State. 

The key distinction here is that the federal commandeering is effectuated through a federal agency's non-negotiable contract terms, rather than a direct, explicit Congressional statute compelling the State legislature to act (as prohibited in New York v. United States or Printz v. United States). However, the result is identical: the TVA leverages its federal agency status and statutory monopoly to dictate the actions of state-chartered entities. The LPCs are state-based non-profits that cannot legally exercise the autonomy granted to similar utilities in other states because the TVA's federally-authorized contract imposes a prohibition that serves as an instrument of federal policy. The TVA Fence thus functions as a mechanism of federal law, achieving the effect of unconstitutional commandeering by stripping state-chartered entities of their legislatively granted autonomy. 

Fannie Pack LLC is injured precisely because the TVA Fence displaces the state regulatory authority that would otherwise govern interconnection with the cooperative. By transforming independent, state-chartered entities into federal enforcement agents, the Fence prevents the cooperatives from fulfilling their statutory duties under PURPA and infringes on Tennessee's police powers. 

Given that PURPA is both the more specific and later-in-time expression of Congressional will, and considering the constitutional infirmity arising from the TVA's displacement of state police power and effective commandeering of state-chartered utilities, the court must overturn the TVA Fence. This action would allow the state-chartered cooperatives to fulfill their duties under PURPA, restoring the State of Tennessee's proper regulatory authority and resolving the conflict in favor of Fannie Pack LLC. 

6. Commerce Clause Claim 

     The final and perhaps most structural constitutional defect of the TVA Fence is its violation of the Commerce Clause itself. While the Supreme Court has historically granted Congress broad deference in economic regulation, that power is not infinite. In United States v. Lopez (1995), the Court established clear boundaries, limiting Congress’s power to three categories: the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that “substantially affect” interstate commerce.75 The TVA Fence, however, does not merely "regulate" these categories; it creates a unique form of federal blockage that fails the modern test for valid commercial regulation established in NFIB v. Sebelius (2012).76 

In Sebelius, the Court famously held that the power to "regulate" commerce presupposes the existence of commercial activity to be regulated. Congress cannot, under the guise of the Commerce Clause, compel individuals to engage in commerce (the "activity vs. inactivity" distinction). The TVA Fence presents the inverse, but equally unconstitutional, side of this coin: it compels activity into inactivity. By statutorily prohibiting the TVA from selling power outside the Fence and contractually forbidding LPCs from buying power inside it, the federal government is not regulating the flow of an existing market; it is forcibly suppressing the creation of a market. It compels non-participation, freezing Tennessee’s energy economy in a 1959 stasis while the rest of the nation moves forward. 

This compulsory suppression creates what can only be described as a "Federal Dormant Commerce Clause" paradox. The foundational purpose of the Commerce Clause was to end the economic balkanization that plagued the colonies under the Articles of Confederation and to create a unified national free-trade zone. As Hamilton state in Federalist No. 11, 

An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions... The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. 

The TVA Fence actively creates the very economic balkanization the Constitution was designed to destroy. It erects a federally-mandated protectionist wall around seven states–particularly Tennessee–segregating them from the national grid economy. By severing Tennessee from the national grid economy, the TVA Fence acts as the very clot Hamilton warned against. 

The legal question is stark: Can Congress use a power designed to foster a national market for the specific purpose of severing a region from it? The answer is illuminated by the principle of equal constitutional application. In Bolling v. Sharpe (1954), the Supreme Court applied the Equal Protection principle of the Fourteenth Amendment to the federal government via the Due Process Clause of the Fifth Amendment, known as the reverse incorporation doctrine. The core principle is that the Constitution demands uniform protection across the country, whether the violation originates from a state or the federal government. By analogy, if the Constitution prevents states from engaging in economic protectionism via the Dormant Commerce Clause, then the Commerce Clause's structural mandate for a unified national market must restrain the federal government from mandating that same protectionism. The federal government should not be able to use its Commerce power to achieve a protectionist result—economic balkanization—that the courts would immediately strike down if enacted by a state. 

While Congress does have the ability to explicitly permit state actions that would otherwise violate the Dormant Commerce Clause (see Prudential Ins. Co. v. Benjamin (1946)), the TVA Fence is distinct because it is a federal action creating the barrier, not a delegation to the State of Tennessee to create one. The purpose of the Dormant Commerce Clause—to destroy "economic balkanization" and foster national economic unity—applies with equal, if not greater, force to federal action. The Supreme Court's reasoning in H.P. Hood & Sons, Inc. v. Du Mond (1949), which struck down a New York law that served as economic protectionism, condemns government policies that "tend to build up embargoes" and interfere with the free flow of commerce. The "TVA Fence" actively achieves the very market segregation the Framers sought to prevent. 

This violation is magnified by the technological reality of the modern grid. In 1959, electricity was largely a local commodity. Today, under FERC Order No. 2222, Distributed Energy Resources (DERs) are aggregated into "Virtual Power Plants" that sell capacity and ancillary services into interstate wholesale markets. The TVA Fence functions as a blockade against these interstate aggregators, severing Tennessee DERs from the national marketplace and blocking their participation in national capacity markets. 

The Fence, therefore, has a "substantial effect" on interstate commerce, but that effect is to prohibit it entirely for millions of Americans. This is not a "necessary and proper" means of regulating a modern grid; it is a protectionist exclusion that serves no legitimate federal interest in 2025. Because the Fence functions as an unconstitutional compulsion of inactivity and a barrier to interstate commerce, Fannie Pack LLC requests that the Court issue an Injunction invalidating the territorial restrictions of 16 U.S.C. § 831n-4(a). The practical effect of this remedy would be to void the "exclusivity" provisions in the TVA’s contracts with local power companies, forcing the federal monopoly to compete on merit and finally opening Tennessee to the DER revolution. 

B. Statutory Challenges 

While constitutional challenges offer the most direct path to dismantling the TVA Fence, statutory challenges provide complementary and potentially less politically fraught pathways to relief. If both the constitutional and statutory challenges are brought together, the Court may likely find on statutory bases due to the doctrine of Constitutional Avoidance, a preference that the plaintiffs should seek to preclude where possible to ensure the constitutional issues are addressed. As mentioned above, the lack of quorum currently prevents TVA from issuing a final IRP/EIS. The draft has been pending since February 2025.77 For the purpose of this brief analysis, we assume the final draft of the TVA's 2025 IRP/EIS will be substantially similar to the existing public draft, failing to adequately consider distributed energy resources (DERs) with distributed ownership. We will also extend the Fannie Pack LLC hypothetical plan, assuming the attorney formed Fannie PAC, a related 501(c)(4) non-profit, to pursue these statutory and policy claims. 

If both the Constitutional and statutory challenges are brought together, the Court will likely find on statutory bases by any means necessary due to the doctrine of Constitutional Avoidance.78In order to preclude Constitutional Avoidance, it may be necessary to bring these claims separately, consecutively, or together, depending on strategy. Broader community input is needed to determine whether the Constitutional issues carry greater import than the statutory challenges. It is likely that the Constitutional challenges will resonate more with the political culture and landscape in the state, whereas it is more likely the statutory challenges would prevail, particularly where the alternative presented to the Court is a Constitutional ruling. 

1. PURPA Already Tore Down the Fence 

     In a separate lawsuit, Fannie PAC alleges that Congress in PURPA already tore down the judicially erected TVA Fence. The 1968 Hardin reading of the 1959 amendment to the TVA Act created a "Fence" around the Tennessee Valley, explicitly prohibiting the TVA from selling power outside its designated area. Crucially, the amendment did not grant the TVA or its distributors an exclusive monopoly within that territory against future federal mandates. 

When Congress enacted the Public Utility Regulatory Policies Act (PURPA) in 1978, it broadly defined "electric utility" to include "nonregulated" entities like the TVA and mandated that all such utilities must purchase power from Qualifying Facilities (QFs) at avoided costs. By creating a federal statutory entitlement for independent power producers to sell into the grid, PURPA effectively punctured the TVA Fence from the inside. 

The TVA proffers the imprimatur of compliance with PURPA through its Dispersed Power Production Program, which requires QFs to enter into a Power Purchase Agreement (PPA) directly with the TVA, not the Local Power Company (LPC). This program stipulates that the sale of power occurs at a "Delivery Point" determined in a separate agreement between the QF and the LPC, but the purchase is made by the TVA. The TVA's terms and conditions explicitly recognize the Congressional mandate, stating that the agreement is "consistent with provisions of the Public Utility Regulatory Policies Act of 1978, as amended (PURPA)". 

However, the argument remains that the TVA's centralized PPA model—which requires the QF to sell to TVA and relies on TVA's internally determined avoided cost —is a defensive administrative workaround that fails to meet the core statutory intent of PURPA Section 210. PURPA intended to foster localized competition and innovation; the TVA's mechanism preserves its centralized control and allows it to impose onerous safety and interconnection requirements (like islanding protection) before a sale can be finalized. Fannie PAC can argue that the TVA's existing QF program fails the statutory standard by being unduly burdensome, non-competitive, and an inadequate substitute for genuine open access required by PURPA. 

2. NEPA, Vermont Yankee, & Seven Counties 

             In the alternative, Fannie PAC alleges that the TVA’s 2025 Integrated Resource Plan (IRP) and Environmental Impact Statement (EIS) are insufficient to survive a challenge under the National Environmental Policy Act (NEPA) and the precedent set in Vermont Yankee Nuclear Power Corp. v. NRDC (1978).79In Vermont Yankee, the Court of Appeals held that the environmental impact statement for the construction of certain nuclear reactors was fatally defective for failure to examine energy conservation as an alternative to such reactors. 

The current public draft of the TVA's IRP/EIS presents a similar defect. While the 2019 TVA IRP did model different scenarios for energy efficiency and Distributed Energy Resources (DERs) (labeled as "BTM solar and storage" in the modeling) , the 2025 IRP/EIS currently fails to analyze an aggressive, least-cost portfolio that fully integrates DERs and wind resources. This failure to adequately evaluate the Clean Portfolio Replacement scenario—which avoids investments in new gas and includes increased energy efficiency, solar, wind, and storage —violates NEPA's mandate for a "hard look" at all reasonable alternatives. 

This failure to adequately evaluate demonstrably superior alternatives stems from fundamental methodological flaws. TVA's own draft IRP modeling separates the capacity and economic contribution of solar and storage resources, a methodology that understates the synergistic value of solar-plus-storage. By artificially limiting the modeled benefits, TVA's models systematically bias the results toward existing, centralized resources. We never reach the merits of options not presented. The Synapse Energy Economics report demonstrates that the failure to analyze DER alternatives is material: 

1. A Clean Portfolio Replacement scenario would save customers an estimated $9.4 billion from 2022 to 2042 compared to the Business-As-Usual (BAU) scenario, which leans on new gas capacity 

2. The clean portfolios achieve the same level of reliability as gas-heavy portfolios 

3. This portfolio also results in an additional 301.7 million tons of CO2 avoidance compared to the BAU scenario over the same period 

The IRP/EIS's reliance on options A and B (constructing new gas-fired capacity) risks creating stranded assets and is fundamentally inconsistent with the TVA's own stated mission of providing low-cost, reliable, and clean energy. Since the Clean Portfolio Replacement scenario, which incorporates wind and energy efficiency, requires significantly less total capacity build-out (less than 17 GW of utility-scale solar, storage, and wind) compared to the solar-only scenario (a combined 60 GW of solar and storage), this diversified clean alternative is both more cost-effective and more feasible in the required timeframe. The failure to fully model this demonstrably superior and reasonable alternative renders the NEPA analysis fatally flawed. 

Furthermore, the IRP's reliance on options A and B (constructing new gas-fired capacity) risks creating stranded assets and is inconsistent with its net-zero goals. The draft IRP reveals a range of 4 GW to 19 GW of new gas generation capacity across its strategies, despite the external analysis showing a Clean Portfolio Replacement scenario that saves customers $9.4 billion and achieves the same reliability. By choosing to pursue a gas-heavy path, the IRP fails NEPA's mandate by ignoring a reasonable, proven, and superior least-cost alternative. 

3. TVA Act & Least Cost Planning 

In the alternative, Fannie PAC alleges that the TVA’s 2025 IRP violates the Least Cost Planning mandate Congress created at 16 U.S.C. § 831m-1. The IRP fails to analyze a scenario that maximizes the use of DERs, even though a Distributed Energy Resources (DER) Pilot involving the TVA and ten LPCs has already occurred, leading to recommendations to advance DER interconnection practices across the Valley. The TVA is also actively engaged in promoting grid modernization through its Regional Grid Transformation (RGT) initiative, which aims to create a more resilient, flexible, and integrated system, with DER interconnection as a key focus area. The exclusion of a full DER-based scenario that shifts generation asset ownership to the private sector represents a violation of the Least Cost Planning requirement. Such a scenario would diminish TVA's need for massive, capital-intensive new gas infrastructure and transmission upgrades, shifting ownership risk to the private sector and increasing the circulation of energy dollars locally. Given the Synapse modeling showing the Clean Portfolio Replacement scenario saves customers $9.4 billion and results in a lower net present value of revenue requirements, the TVA's current IRP, which still plans for new gas capacity, cannot be reasonably characterized as genuine "Least Cost Planning." 

The Least Cost Planning mandate requires TVA to employ a planning process that minimizes system costs while "treating demand and supply resources on a consistent and integrated basis". Fannie PAC argues that the IRP fails this mandate by arbitrarily excluding the societal cost of carbon in its final portfolio selection. Crucially, while the draft EIS performed an analysis finding that a carbon-free portfolio avoided $17.8 billion in damages (Social Cost of Carbon) compared to the baseline, the TVA did not incorporate this monetized finding into its final portfolio scoring in the IRP. This omission constitutes a systemic failure to apply the least-cost principle on an "integrated basis," as required by statute. The failure to account for $17.8 billion in quantified environmental costs renders the TVA's decision-making arbitrary and capricious and in violation of the Least Cost Planning mandate, as it privileges the utility's capital expenditure budget over the genuine least-cost option for ratepayers and society. 

F. Policy Reform 

Finally and concurrently, Fannie PAC should pursue policy pathways for relief. While the energy sector is inherently technical—a barrier that often causes even the most ardent, environmentally conscious citizens to "gloss over"—it is necessary to foster deep democratic participation in the energy sector for the future of national security. The pursuit of policy reform necessitates simultaneous changes in both federal and Tennessee state law, as the Tennessee Legislature has adopted maladaptive policy under the federal Congress’ energy regulatory regime in the TVA Act over the last 100 years. These changes, once implemented, would clear the path for the District Court to act on the constitutional and statutory claims through the federal question doctrine. 

At the state level, the Tennessee Legislature must repeal or amend key sections of law to clear a path for Distributed Energy Resources (DERs) in the state. 

1. Repeal Cooperative Restrictions: The Tennessee Electric Generation & Transmission Cooperative Act specifically restricts the services that cooperatives (like CEMC) can provide to retail customers in the TVA area.80 Purchasing electricity from customer-generators is not included in the authorized activities,81 unlike in the many states with net metering statutes in compliance with PURPA. This restriction is technically obsolete. The TVA itself has functionally de-risked DER integration through internal research: 

○ The TVA’s Regional Grid Transformation (RGT) initiative is actively collaborating with Local Power Companies (LPCs) to transform the grid into a "more resilient, flexible and integrated system". 

○ A DER Interconnection Pilot involving TVA and ten LPCs has already led to the development of recommendations to advance DER interconnection practices across the Valley. 

○ This internal research demonstrates that the technical concerns used to justify the state’s restrictive cooperative laws have been addressed, removing any rational, technical basis for the Tennessee Legislature to maintain the prohibition on LPCs buying power from customer-generators. 

2. Restore PUC Jurisdiction: While Tennessee does have a Public Utility Commission (TN PUC), it currently has jurisdiction over only one independent municipal electric utility.82 The TN PUC is not authorized to fix just and reasonable rates for the full avoided cost for electricity generated within the distribution utility territory by customer-generators.83 These sections must be amended to grant the TN PUC full regulatory authority over all electric distribution utilities in the state, allowing it to fulfill the traditional state role of refereeing interconnection disputes and setting fair rates. Federal reform must focus on stripping the TVA of its monopolistic power and reorienting the region toward market competition and regional coordination. 

3. Renegotiate an Interstate Compact (Sunset the Monopoly): Congress and the Southern States Energy Board (SSEB)84 should renegotiate an interstate compact which sunsets the TVA as a vertically-integrated monopoly. Currently, the TN PUC cannot regulate TVA transmission or generation by requiring a finding of public necessity,85 leading to innumerable lawsuits over TVA’s exercise of Eminent Domain powers. By limiting the exercise of such takings, Congress will save taxpayers substantial duplicative litigation, converting from a regime requiring just compensation paid to one that generates tax revenue through free market activity. 

4. Establish TVA as a PMA and Free the Market: Congress and SSEB should amend the TVA Act to establish the TVA as a PMA within the federal Department of Energy. This key structural change would: 

● Grow the Regional Market: It would free the SSEB to grow the Southeast Energy Exchange Market (SEEM) into a fully functional Regional Transmission Organization (RTO), introducing competition and wholesale market participation to the region. 

● Unlock Billions in Savings: RTO membership and broader regional connectivity are essential to unlocking the true least-cost portfolio for the Valley. The Synapse Energy Economics modeling demonstrated that the Clean Portfolio Replacement scenario—which relies on accessing low-cost wind from the adjacent Southwest Power Pool (SPP) and Midcontinent Independent System Operator (MISO) regions—is critical to achieving its $9.4 billion in customer savings. RTO membership would facilitate the necessary "proactive transmission planning" to connect these wind-rich resource areas with TVA's load centers, a practice supported by multiple industry studies. 

● Limit Generation Authority: Congress should sunset TVA’s authority to participate in the electricity generation market, except for existing nuclear and hydroelectric public power facilities. This would force the market to rely on independent power producers, immediately honoring the spirit of PURPA Section 210. 

These policy reforms would reorient Tennessee and southeastern energy policy toward free market participation, deep democracy, and self-determination consistent with the spirit of the Constitution, the New Deal, and the TVA Act. 

IV. Conclusion 

         The Tennessee Valley Authority (TVA), once a bold New Deal experiment in regional uplift, now operates as an anachronistic federal monopoly, holding 10 million Americans captive to a statute that isolates them from the nation’s energy markets. The TVA Fence (16 U.S.C. § 831n-4(a)) has created a profound accountability vacuum, leaving citizens with no shareholders to pressure, no state utility commission to appeal to, and a federal Board so incapacitated by a lack of quorum that it cannot even convene to hear a dispute. 

This structural failure is not just a policy flaw; it is a constitutional crisis. It denies Tennesseans their Fifth Amendment right to a fair hearing for their property (the statutory entitlement created by PURPA Section 210), strangles their First Amendment right to express dissent through the expressive act of building a community microgrid, and creates the very "economic balkanization" the Commerce Clause was designed to prevent. 

The TVA Fence is a relic of a bygone era, a federal wall that now blocks free markets, stifles innovation, and denies the fundamental right of self-determination. The time for judicial review, legislative reform, and executive action is now. Ironically, in the same spirit as President Roosevelt when the TVA was first established, and toward the same objectives Congress intended with the TVA Act, we now shout, “Mr. President—Tear Down This Wall!”

_______________________________

1 Carlson and Sandra’s property. https://maps.app.goo.gl/U1MzSSKUE233pctQ7 (last visited 11/15/25). 2 Chris Gadd, “A week after high winds left ‘widespread damage’ across Middle Tennessee, repair work continues,” The Tennessean. March 10, 2023. 

https://www.tennessean.com/story/news/2023/03/10/a-week-later-devastating-middle-tn-storm-cleanup-remains-und erway-utilities-restored-deaths-grieved/69994593007/ (last visited 10/13/24). 

3 2300-Watt Bluetooth Inverter Generator. Ryobi. 

https://www.ryobitools.com/products/46396025487?srsltid=AfmBOorh7hf-XuN6mqdMppj5P4UdSRi1jzSGD4pTX mFk-kE12cEeY-XS (last visited 11/17/25). 

4 Cumberland Electric Membership Corporation. https://cemc.org/ (Last visited 11/12/25). 5 TVA’s Distribution Utility Map. 

https://tva-azr-eastus-cdn-ep-tvawcm-prd.azureedge.net/cdn-tvawcma/images/default-source/transmission-towers/en ergy/public-power/tva-local-power-companies-07-25-2.png?sfvrsn=5ad71516_1 (last visited 11/12/25). 

6 16 U.S.C. 831. 

7 16 U.S.C. 831a. 

8 The legality of removing Senate-confirmed members of an independent agency Board, absent cause as defined by statute, potentially raises questions under Humphrey's Executor v. United States, 295 U.S. 602 (1935), which distinguishes between purely executive officers and those of "quasi-legislative or quasi-judicial" agencies. Critically, the current lack of a quorum directly implicates the procedural due process challenge raised later in this thesis, specifically the Coit v. FSLIC argument that the TVA's administrative remedies are futile because the Board cannot lawfully convene to hear contested cases. See Coit Independence Joint Venture v. Fed. Sav. & Loan Ins. Corp., 489 U.S. 561 (1989). 

9 Ryan Wilusz, “Trump fires another Biden appointee, cutting TVA board down to just three members,” Knox News. June 11, 2025. 

https://www.knoxnews.com/story/news/local/2025/06/11/trump-fires-biden-tva-pick-beth-geer-from-tennessee-valle y-authority-board-directors/84153477007/ (last visited 11/13/25). 

10 16 U.S.C. 831a(e)(1). 

11 A Guide to Information About the Tennessee Valley Authority. 

https://www.tva.com/information/freedom-of-information/a-guide-to-information-about-the-tennessee-valley-authori ty (last visited 11/13/25). 

12 Daniel Dassow, “TVA sheds 600 employees in voluntary buyout to reduce costs,” Chattanooga Times Free Press. August 21, 2025. 

https://www.timesfreepress.com/news/2025/aug/21/tva-sheds-600-employees-in-voluntary-buyout-to/#:~:text=TVA %20has%20had%20a%20hiring,House%20extended%20through%20mid%2DOctober. (last visited 11/13/15). 

13 Bonneville, Southwestern, Southeastern, and Western Area Power Administrations. 

14 16 U.S.C. § 831. 

15 “Norris,” Tennessee Valley Authority. https://www.tva.com/energy/our-power-system/hydroelectric/norris (last visited 11/13/25). 

16 “Browns Ferry Nuclear Plant,” Tennessee Valley Authority. 

https://www.tva.com/energy/our-power-system/nuclear/browns-ferry-nuclear-plant#:~:text=Browns%20Ferry%20is %20TVA's%20first,1%20billion%20watts%20of%20power. (last visited 11/13/25). 

17 “Our Power System,” Tennessee Valley Authority. https://www.tva.com/energy/our-power-system (last visited 11/13/25). 

18 FERC Order No. 888. 

19 “Transmission,” Tennessee Valley Authority. 

https://www.tva.com/energy/transmission#:~:text=You%20may%20never%20give%20any,intelligent%20right%20o f%20way%20policies. (last visited 11/15/25). 

20 “TVA Rates,” Tennessee Valley Authority. 

https://www.tva.com/about-tva/tva-rates#:~:text=Living%20in%20the%20Tennessee%20Valley,power%20through %20these%20low%20rates. (last visited 11/15/25). 

21 Julia Mariko Jacoby, “The Tennessee Valley Authority Goes Japan: A River’s Way into the Anthropocene,” Dec 10, 2019. 

https://www.anthropocene-curriculum.org/contribution/the-tennessee-valley-authority-goes-japan-a-rivers-way-into the-anthropocene (last visited 11/15/25). 

22 Dipankar Chaudhurl, “Damodar River Valley: An Indian parallel to the Tennessee River Valley,“ June 2000. Journal of Hydraulic Engineering. 

https://www.researchgate.net/publication/280877414_Damodar_River_Valley_An_Indian_parallel_to_the_Tennesse e_River_Valley (last visited 11/15/25). 

23 “The Father of Public Power,” TVA Heritage Series. 

https://www.tva.com/about-tva/our-history/tva-heritage/the-father-of-public-power#:~:text=Later%20he%20served %20as%20a,%2C%20Brazil%2C%20Iran%20and%20Vietnam. (last visited 11/15/25). 

24 “Preserve Cheatham County,” Action Network. https://actionnetwork.org/groups/preserve-cheatham-county (last visited July 16, 2025). 

25 As President Roosevelt said, the TVA is “a corporation clothed with the power of Government but possessed of the flexibility and initiative of a private enterprise.” Franklin D. Roosevelt, Message to Congress Suggesting Legislation to Create the Tennessee Valley Authority. Apr. 10, 1933. 

https://www.presidency.ucsb.edu/documents/message-congress-suggesting-the-tennessee-valley-authority (last visited 11/12/25). 

26 Eric Hilt, “Tennessee Valley Authority scraps plans for rural Cheatham County gas plant,” Southern Environmental Law Center. July 15, 2025. 

https://www.selc.org/press-release/tennessee-valley-authority-scraps-plan-for-rural-cheatham-county-gas-plant/ (last visited July 16, 2025). 

27 Old Crow Medicine Show, “Half Mile Down.” https://youtu.be/RgLDdKr8fCs?si=IZ1zwtHibuNX5nIr (last visited 11/12/25). 

28 TVA Office Memorandum dated January 9, 1936 regarding TVA contacts with Mattie and Jim Randoph Tract No. 566. https://www.archives.gov/files/education/lessons//images/depression-randolph-relocation-memo.pdf (last visited 11/15/25). 

29 O Brother, Where Art Thou?: Miraculously Saved. https://youtu.be/aYAG5cjvC9g?si=Vjv69-vfg8M-p5JU (last visited 11/12/25). 

30 See Michael J. McDonald & John Muldowny, TVA & The Dispossessed: The Resettlement of Population in the Norris Dam Area 8 (1982). 

31 Tommy Steventson, “Remembering Browns Ferry, almost nuclear catastrophe,” Tuscaloosa News. March 20, 2011. 

https://www.tuscaloosanews.com/story/opinion/columns/2011/03/20/at-large-remembering-browns-ferry-almost-nuc lear-catastrophe/28369177007/ (last visited 11/12/25). 

32 437 US 153 (1978). 

33 S.243 - A bill to exempt the Tellico Dam Project of the Tennessee Valley Authority from the provisions of section 7 of the Endangered Species Act. 1979. https://www.congress.gov/bill/96th-congress/senate-bill/243 (last visited 12/14/25). 

34 “The Kingston Disaster,” Southern Alliance for Clean Energy. 

http://www.southeastcoalash.org/about-coal-ash/coal-ash-disasters/the-kingston-disaster/ (last visited 11/12/25). 35 Feb 13, 2020, TVA Board Adopts Principles of Public Power Flexibility. 

https://www.tva.com/news-media/releases/tva-board-adopts-principles-of-public-power-flexibility (last visited 11/15/25). 

36 Caroline Eggers, “TVA’s power mix explained in two charts,” WPLN News. 

https://wpln.org/post/tvas-power-mix-explained-in-two-charts/ (last visited 11/15/25). 

37 “Electricity Explained: Electricity in the United States,” U.S. Energy Information Administration. https://www.eia.gov/energyexplained/electricity/electricity-in-the-us.php#:~:text=Other%20major%20electricity%2 0generation%20technologies,scale%20and%20small%2Dscale%20systems. (last visited 11/15/25). 38 Matt Brown, “TVA’s ‘Flex 2.0’ Program Provides New Opportunities to LPCs,” Silicon Ranch. https://www.siliconranch.com/stories/silicon-ranch-flex-2-0-new-program (last visited 11/15/25). 39 “Publications,” Eco Demo Law, PLLC. https://www.ecodemo.org/publications (last visited 12/14/25). 

40 2025 Draft Integrated Resource Plan. TVA. September 2024. 

https://tva-azr-eastus-cdn-ep-tvawcm-prd.azureedge.net/cdn-tvawcma/docs/default-source/environment/environment al-stewardship/integrated-resource-plan/2025/draft-2025-irp-volume-1-092324.pdf?sfvrsn=26f01b64_1 (last visited 11/18/25). 

41 Katie Kienbaum, John Farrell, Matthew Grimley, “Advantage Local: Why Local Energy Ownership Matters,” June 2023. Institute for Local Self-Reliance. 

https://ilsr.org/wp-content/uploads/2023/06/ILSR-Advantage-Local-Report-2023.pdf (last visited 11/15/25). 

42 “The TVA Act,” Tennessee Valley Authority. https://www.tva.com/about-tva/our-history/the-tva-act (last visited 11/12/25). 

43 Franklin D. Roosevelt, Message to Congress Suggesting Legislation to Create the Tennessee Valley Authority. Apr. 10, 1933. 

https://www.presidency.ucsb.edu/documents/message-congress-suggesting-the-tennessee-valley-authority (last visited 11/12/25). 

44 Fred Brown, "TVA's Legacy: Region Rose from Poverty to Prosperity." Knoxville News Sentinel, 18 May 2008. https://archive.knoxnews.com/news/local/tvas-legacy-region-rose-from-poverty-to-prosperity-ep-411654291-35989 8501.html/ (last visited 11/18/25). 

45 Table Data - Personal income per capita. Federal Reserve Bank of St. Louis. 

https://fred.stlouisfed.org/data/A792RC0A052NBEA (last visited 11/18/25). 

46 16 U.S.C. § 831x. 

47 16 U.S.C. § 831n-4(a). 

48 Hardin v. Ky. Utils. Co., 386 U.S. 1 (1968) 

49 Professor Mark James in Energy Regulation, Markets and the Environment, Spring 2025. Vermont Law and Graduate School. 

50 President Jimmy Carter, Address to the Nation on Energy. April 18, 1977. 

https://www.presidency.ucsb.edu/documents/address-the-nation-energy (last visited 11/15/25). 51 This comprehensive legislative package included PURPA, the National Energy Conservation Policy Act, the Energy Tax Act, the Power Plant and Industrial Fuel Use Act, and the Natural Gas Policy Act. 52 “Arab oil embargo,” Encyclopedia Britannica. Oct. 17, 2025. https://www.britannica.com/event/Arab-oil-embargo (last visited 11/15/25). 

53 16 U.S.C. § 824a-3. 

54 “Interconnection Key Takeaways: State Grade Breakdown,” Freeing the Grid. 

https://freeingthegrid.org/interconnection-key-takeaways/#:~:text=State%20Grade%20Breakdown,Freeing%20the% 20Grid%20(FTG)%3B (last visited 11/16/25). 

55 Protect Our Aquifer v. TVA, 654 F.Supp.3d 654 (W. Dist. Tenn. 2023). 

56 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 

57 Schweiker v. Wilson, 450 U.S. 221 (1981). 

58 U.S. v. Darby, 312 U.S. 100 (1941). 

59 Currin v. Wallace, 306 U.S. 1 (1939). 

60 Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). 

61 U.S. v. Darby, 312 U.S. 100 (1941). 

62 Berman v. Parker, 348 U.S. 26 (1954). 

63 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976). 

64 Roberts v. U.S. Jaycees, (1984). 468 U.S. 609. 

65 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Larson v. Valente, 456 U.S. 228 (1982); In re Primus, 436 U.S. 412 (1978). 

66 Spence v. State of Washington, 418 U.S. 405 (1974). 

67 United States v. O’Brien, 391 U.S. 367 (1968). 

68 16 U.S.C. § 831n-4(a). 

69 See Lochner v. New York, 198 U.S. 45 (1905); then, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) et seq. establishing nearly ninety years of subsequent jurisprudence rejecting judicial interference in economic regulation, creating a presumption of legislative deference, and making such a constitutional challenge exceptionally difficult. 

70 New Process Steel v. NLRB, 560 U.S. 674, 683 (2010). 

71 Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 587 (1989). 

72 Ibid. 

73 The Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). 

74 Tumey v. State of Ohio, 273 U.S. 510 (1927). 

75 United States v. Lopez, 514 US 549 (1995). 

76 National Federation of Independent Business v. Sebelius, 567 US 519 (2012). 

77 2025 Integrated Resource Plan. TVA. https://www.tva.com/environment/integrated-resource-plan (last visited 11/17/25). 

78 Ironically, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring), setting forth the seven rules by which the Court avoids ruling upon a constitutional question, creating a policy of judicial self-restraint rarely departed from unless absolutely necessary. A well-pleaded complaint that does not give the court means to find on other grounds, however… 

79 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). 

80 TN ST § 48-69-118. 

81 TN ST § 65-25-104. 

82 TN ST § 48-69-119. 

83 TN ST § 65-5-101. 

84 Southern States Energy Compact. https://www.sseb.org/about/southern-states-energy-compact/ (last visited 11/17/25). 

85 TN ST § 65-4-208.