4. Legal Reasoning and Precedents Cited
A. The stay framework: preserving the prelitigation position
The panel applied the four familiar stay factors:
- A strong showing of likely success on the merits;
- Irreparable injury without a stay;
- Substantial injury to other interested parties from a stay; and
- The public interest.
OPAWL - Building AAPI Feminist Leadership v. Yost, 118 F.4th 770, 774 (6th Cir. 2024), supplied the circuit’s framework, drawing on Nken v. Holder, 556 U.S. 418, 434 (2009). The panel emphasized the distinction between an injunction that changes the prelitigation status quo and a stay that suspends the district court’s change to it. Under OPAWL - Building AAPI Feminist Leadership v. Yost, a stay applicant faces a lower burden than an applicant seeking an injunction.
This reasoning mattered because TVA had been constructing the plant under its existing approvals throughout the litigation. The requested stay would permit that activity to continue while the appellate court reviewed the judgment.
The panel did not categorically equate APA vacatur with an injunction. Instead, it accepted the parties’ agreement that the injunction-stay factors should govern because the vacatur order functionally stopped construction. That assumption limits the opinion’s significance for broader debates about the legal nature of vacatur.
B. Standing: an unresolved jurisdictional concern
Under TransUnion LLC v. Ramirez, 594 U.S. 413, 423, 431 (2021), a plaintiff must establish a cognizable injury, causation, and redressability for each claim pressed. The panel questioned whether the organizations had demonstrated those elements for their two successful claims.
The alternatives claim particularly concerned the court. Neither the organizations nor the district court had identified another viable alternative. The panel therefore questioned whether an injury could confidently be traced to TVA’s failure to examine unidentified options or redressed through additional analysis. It cited Klein v. U.S. Dep't of Energy, 753 F.3d 576, 579–80 (6th Cir. 2014), in connection with that concern.
Nevertheless, the panel concluded that it could grant interim relief without resolving standing. It relied on Mullin v. Doe, 609 U.S. 324, 346 (2026), expressly identified as a plurality opinion, and Arizona v. Biden, 31 F.4th 469, 479 (6th Cir. 2022). The court distinguished temporarily staying relief from ultimately affirming relief, which would require resolving jurisdiction.
Significance: The opinion raises a claim-specific standing issue; it does not establish a categorical requirement that every NEPA plaintiff identify an alternative the agency would ultimately select.
C. A “reasonable range” is not necessarily a numerical minimum
The central statutory provision, 42 U.S.C. § 4332(2)(C)(iii), requires consideration of:
“a reasonable range of alternatives to the proposed agency action,” including the specified no-action analysis, that are “technically and economically feasible” and “meet the purpose and need of the proposal.”
The district court had upheld TVA’s purpose-and-need formulation. Nobody disputed at the stay stage that the gas plant was the only known option satisfying it. The district court nevertheless interpreted “range” to require more than one qualifying alternative.
Text and the Dictionary Act
The Sixth Circuit rejected that likely interpretation through several steps:
- “Range” can describe scope: It need not describe a series containing multiple items. The scope of options satisfying several conditions can contain only one option.
- The statutory qualifications matter: NEPA limits the relevant alternatives to technically and economically feasible options meeting the project’s purpose and need.
- Plural language is not conclusive: The Dictionary Act, 1 U.S.C. § 1, provides that words importing the plural include the singular unless context indicates otherwise.
- A contrary reading would obstruct otherwise lawful action: If only one qualifying option exists, requiring two would turn environmental procedure into a prohibition on the project.
The resulting principle is conditional, not unlimited: a single qualifying option may constitute the statutory range when no other viable option exists and the agency’s objectives are reasonable.
Precedents limiting alternatives to options that serve the project’s objectives
Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 75 (D.C. Cir. 2011), supports the proposition that an agency need not include an alternative that would not accomplish the federal action’s objectives. The panel cited Gas Transmission Nw., L.L.C. v. Fed. Energy Regul. Comm'n, 157 F.4th 674, 709 (5th Cir. 2025), and HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1231 (9th Cir. 2014), for the same general limitation.
These authorities undermine the district court’s numerical approach: if an agency need not analyze an option that cannot achieve the project’s ends, a court should not require such an option simply to increase the count.
N. Cascades Conservation Council v. U.S. Forest Serv., 136 F.4th 816, 827 (9th Cir. 2025), further supports excluding alternatives that are infeasible, ineffective, or inconsistent with the project’s goals. The panel repeatedly returned to the absence of any additional “viable” option in this record.
The safeguard against artificially narrow objectives
The court acknowledged an important qualification. An agency cannot manufacture a one-option analysis by defining its objectives unreasonably narrowly.
Sierra Club v. Fed. Energy Regul. Comm'n, 145 F.4th 74, 87–88 (D.C. Cir. 2025), explains that increasingly specific objectives produce a narrower range of alternatives. It also recognizes the possibility that a reasonable purpose and need may leave only one feasible option.
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991), supplies the corresponding warning: objectives cannot be defined so narrowly that environmental review becomes a “foreordained formality.” The opinion draws on then-Judge Thomas’s formulation of that concern.
Here, however, the district court had upheld TVA’s objectives. The appellate panel therefore treated manipulation of the purpose-and-need statement as outside the problem presented. This distinction is essential: the opinion relaxes no requirement that project objectives themselves be reasonable.
Precedents rejecting a fixed minimum number
Citizens for Smart Growth v. Sec'y of Dep't of Transp., 669 F.3d 1203, 1212 (11th Cir. 2012), directly states that NEPA imposes no minimum number of alternatives.
The panel also relied on decisions upholding reviews involving an agency’s preferred alternative and a no-action alternative:
- City of North Miami v. Fed. Aviation Admin., 47 F.4th 1257, 1268 (11th Cir. 2022);
- Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005);
- Airport Neighbors All., Inc. v. United States, 90 F.3d 426, 431–32 (10th Cir. 1996); and
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d at 196–98.
These cases reinforce a qualitative rather than numerical inquiry. They do not eliminate the no-action analysis or excuse omission of genuinely viable alternatives. Their relevance is that NEPA compliance does not turn on satisfying an inflexible count.
The 2023 amendments and NEPA’s procedural character
The district court believed the 2023 addition of “reasonable range” and the purpose-and-need qualification imposed new obligations. The panel took the opposite view: the amendments clarified limits on the alternatives agencies must consider rather than creating a previously unknown two-alternative minimum.
Seven Cnty. Infrastructure Coal. v. Eagle County, 605 U.S. 168, 173, 178 n.1, 181 n.3 (2025), supplied the broader interpretive framework. It describes NEPA as procedural and cautions against turning environmental review into a substantive roadblock. The panel also noted the amendments’ inclusion in the “Building United States Infrastructure through Limited Delays and Efficient Reviews Act,” or BUILDER Act.
The statutory text, rather than the legislation’s title alone, drove the analysis. The title and procedural context reinforced the conclusion that Congress had not intended to prohibit projects whenever only one feasible option remained.
D. Precommitment: an unsettled legal foundation, but a likely permissible agreement
Where does the prohibition come from?
The panel questioned the legal foundation of the asserted prohibition on “precommitment” or “predetermination.” The parties had not identified a statutory provision expressly using those terms.
Burkholder v. Peters, 58 F. App'x 94, 96–97 (6th Cir. 2003), and Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir. 1988), had connected relevant restrictions to Council on Environmental Quality regulations. But Marin Audubon Soc'y v. Fed. Aviation Admin., 121 F.4th 902, 908–15 (D.C. Cir. 2024), held those regulations beyond the Council’s authority. The Council had also rescinded its regulations in 2025.
The Sixth Circuit did not resolve the broader validity question itself. It identified the problem and considered an alternative foundation: the obligation to take a genuine “hard look” under NEPA and the APA’s prohibition on arbitrary agency action.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989), supplies the hard-look principle. Judge Gorsuch’s concurrence in Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 719 (10th Cir. 2010), suggests that an agency’s environmental evaluation may be arbitrary if the agency had already irrevocably decided the outcome.
That possible rationale created a difficulty for the organizations: the district court had independently found TVA’s environmental examination adequate. Burkholder v. Peters, 58 F. App'x at 98, supported the possibility that an earlier commitment could be harmless if it did not undermine the later review. The panel left the ultimate legal foundation for another day.
Planning is different from irreversible commitment
Assuming a legally cognizable precommitment claim, Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d at 712, 714, establishes a demanding standard. Agencies may prefer an alternative; the concern is an “irreversibl[e] and irretrievabl[e]” commitment before environmental review is complete.
The panel contrasted two authorities:
- Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F.3d 174, 205 (4th Cir. 2005), permits expenditure of resources on planning before completion of review.
- Save the Yaak Comm. v. Block, 840 F.2d at 718, identifies beginning construction before that point as crossing the line.
TVA’s agreement, the court reasoned, likely fell on the planning side. TVA did not begin constructing the plant until after issuing its Record of Decision.
Why a preliminary gas agreement was commercially necessary
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 302 (1988), explains that a pipeline company must obtain a federal certificate of public convenience and necessity before constructing the relevant infrastructure. This regulatory process helps explain why TVA explored gas supply years before its final project decision.
Env't Def. Fund v. Fed. Energy Regul. Comm'n, 2 F.4th 953, 959, 972 (D.C. Cir. 2021), describes precedent agreements as preconstruction contracts between shippers and transporters and recognizes their importance as evidence of pipeline demand before FERC. These precedents supported viewing the agreement as advance coordination, not necessarily an irrevocable construction decision.
Contract interpretation preserved TVA’s exit options
The agreement made performance contingent on several conditions, including completion of environmental reviews for construction of the Kingston gas project and issuance of a NEPA-compliant Record of Decision.
Jones v. United States, 96 U.S. 24, 28 (1877), supplies the established meaning of a condition precedent: an event that must occur before a contractual obligation becomes binding. The panel also cited Williston’s contract treatise on that point.
The district court had read the agreement to require only completion of some NEPA review and issuance of any Record of Decision. On that interpretation, TVA could select solar power and still owe performance under an agreement for gas.
The Sixth Circuit rejected that likely reading for three reasons:
- Shared contractual meaning: Both TVA and East Tennessee Natural Gas understood the condition to require a decision choosing the gas plant. Russell v. Citigroup, Inc., 748 F.3d 677, 680–81 (6th Cir. 2014), and In re AmTrust Fin. Corp., 694 F.3d 741, 756 (6th Cir. 2012), support interpreting an agreement consistently with the meaning shared by its parties. The court also relied on Restatement (Second) of Contracts § 201.
- Text and ambiguity: Review “for the construction” of the gas project could reasonably mean review resulting in approval of that project. In re AmTrust Fin. Corp., 694 F.3d at 750, supported using the parties’ understanding to resolve ambiguity.
- The contract as a whole: Diversified Energy, Inc. v. Tenn. Valley Auth., 223 F.3d 328, 339 (6th Cir. 2000), supported a contextual reading. An obligation to finance a pipeline for gas TVA would not need made little commercial sense.
The panel acknowledged, but did not resolve, the broader question whether shared subjective intent can override unambiguous objective language. It found no need to do so because the language accommodated the parties’ interpretation.
An additional safeguard was decisive: later service and rate agreements required approval by TVA’s Board of Directors in its “sole and absolute discretion.” The Board could refuse approval if TVA selected another technology. Thus, the agreement contained more than one route away from the gas project.
Practical lesson: The mere existence of a preliminary commercial agreement does not establish unlawful predetermination. Its actual obligations, contingencies, and termination mechanisms matter.
E. Remand without vacatur: remedy must reflect seriousness and disruption
The court offered an alternative basis for likely appellate success: even if TVA violated NEPA, vacating the approvals was probably the wrong remedy.
Authority to leave an approval in place during remand
The APA directs courts to “hold unlawful and set aside” agency action meeting the statutory grounds for invalidity. Nevertheless, Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm'n, 988 F.2d 146, 150–51 (D.C. Cir. 1993), recognizes remand without vacatur, permitting an agency to correct a deficiency while its action remains effective.
The Sixth Circuit acknowledged that it had not previously taken that path, citing Kentucky v. EPA, 123 F.4th 447, 472 (6th Cir. 2024). Judge Murphy’s concurrence in that case, at page 478, suggested that if vacatur functions like an injunction, traditional equitable discretion might support a more tailored remedy.
The panel identified established practice in other circuits:
- Tex. Ass'n of Mfrs. v. Consumer Product Safety Comm'n, 989 F.3d 368, 389 (5th Cir. 2021);
- Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 781 F.3d 1271, 1290 (11th Cir. 2015);
- Prometheus Radio Project v. FCC, 824 F.3d 33, 52 (3d Cir. 2016);
- Nat. Res. Def. Council, Inc. v. EPA, 808 F.3d 556, 584 (2d Cir. 2015); and
- Cent. Me. Power Co. v. Fed. Energy Regul. Comm'n, 252 F.3d 34, 48 (1st Cir. 2001).
These decisions establish that the proposed remedy is not novel nationally, although they do not themselves settle its availability in the Sixth Circuit.
Most importantly, Seven Cnty. Infrastructure Coal. v. Eagle County, 605 U.S. at 185, states that a procedural deficiency does not necessarily require vacatur of a project approval. Together, these authorities were sufficient for a likelihood determination that remand without vacatur is available for NEPA violations.
Applying the Allied-Signal factors
Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm'n directs attention to the seriousness of the error and the disruptive consequences of vacatur.
Seriousness: Neither the district court nor the organizations had identified another viable alternative that additional analysis might reveal or cause TVA to select. The district court had also found the environmental hard look adequate notwithstanding the asserted precommitment. The panel therefore doubted that additional procedure would change the outcome.
Disruption: A shutdown threatened substantial added costs, displacement of approximately 2,000 union workers, higher electricity bills, and risks to reliable electricity supply.
This was a record-specific assessment, not a conclusion that all NEPA violations are trivial. The panel’s reasoning linked the apparent lack of effect on TVA’s ultimate choice with unusually serious consequences from stopping a half-completed project.
The court did not actually order remand without vacatur. It held that the possibility of that remedy independently strengthened TVA’s case for a stay.
F. Irreparable financial harm depends on recoverability
Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991), quoting Sampson v. Murray, 415 U.S. 61, 90 (1974), states the general rule that expenditures of money, time, and energy are not irreparable when damages can later provide compensation.
The panel stressed the qualification: losses may be irreparable if there is no way to recover them after prevailing. It relied on:
- Nat'l Inst. of Health v. Am. Pub. Health Ass'n, 145 S. Ct. 2658, 2660 (2025) (mem.);
- Dep't of Educ. v. California, 604 U.S. 650, 651–52 (2025) (per curiam);
- Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023); and
- Texas v. EPA, 829 F.3d 405, 433–34 (5th Cir. 2016).
TVA submitted evidence that a shutdown could increase project costs by 25%, approximately $625 million. The projected costs included releasing and replacing workers, repeating clearance procedures, potential subcontract repricing, and equipment-related losses. The organizations identified no avenue through which TVA could recover those amounts.
Passing costs to customers would not eliminate the problem. Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 599 (6th Cir. 2001), recognizes loss of established customer goodwill as irreparable injury. Moreover, shifting costs would convert TVA’s financial harm into a public-interest concern.
G. Continuing an approved project during litigation was not automatically self-inflicted harm
The organizations argued that TVA created its predicament by continuing construction after being sued. The panel rejected any general obligation to cease approved activity merely because litigation begins.
It distinguished the authorities invoked against TVA:
- Dep't of Educ. v. California, 604 U.S. at 652, involved the possibility of recouping funds; TVA lacked a comparable recovery route.
- Cuomo v. Nuclear Regul. Comm'n, 772 F.2d 972, 977 (D.C. Cir. 1985), and Towerco 2013, LLC v. Berlin Twp. Bd. of Trs., 110 F.4th 870, 888 (6th Cir. 2024), involved risks associated with proceeding without required licenses or permits. TVA had obtained its approvals before construction.
- Baker v. Adams Cnty. Sch. Bd., 310 F.3d 927, 929–30 (6th Cir. 2002) (per curiam), did not establish that unrecoverable monetary harm must always be disregarded.
Drawing again on Kentucky v. Biden, the panel reasoned that an erroneous judicial order can impose unrecoverable compliance costs just as an unlawful executive regulation can. Filing suit does not itself create a requirement of judicial preclearance.
H. Electricity reliability and the timing of harm
Texas v. EPA, 829 F.3d at 434, and Kentucky v. EPA, 2023 WL 11871967, at *4 (6th Cir. July 25, 2023) (order), support treating grid instability as irreparable injury.
TVA’s evidence indicated that delaying the Kingston plant could heighten the risk of outages and rolling blackouts during peak demand. The organizations argued that this risk was too remote because the plant would not operate for more than two years even without a shutdown.
The panel answered through City of Memphis ex rel. Memphis Light, Gas & Water Div. v. Ford Motor Co., 304 F.2d 845, 850 (6th Cir. 1962), which recognizes the multiyear planning horizon for major generating facilities. Long construction lead times mean that delay now can create a meaningful future supply shortfall.
The court also rejected the suggestion that TVA could avoid cognizable harm by curtailing electricity to businesses rather than households. Reliable service to commercial customers was itself a legitimate interest.
I. The public interest and the organizations’ interim injuries
Under OPAWL - Building AAPI Feminist Leadership v. Yost, 118 F.4th at 785, applying Nken v. Holder, 556 U.S. at 435, the remaining equitable factors merge when a government agency is a party.
The panel emphasized the effect of a shutdown on workers’ pay, employment, housing and travel arrangements, customer bills, and electricity reliability. City of Maryville v. Farmer, 244 F.2d 456, 462 (6th Cir. 1957), recognizes that unwarranted interruptions of power can cause serious economic loss and potentially loss of life. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978), further supports the importance of continued utility service.
By contrast, the organizations had waited six months after construction began to sue and had sought neither a preliminary injunction nor expedited proceedings. Tenn. Conf. of the NAACP v. Lee, 105 F.4th 888, 899 (6th Cir. 2024) (per curiam), supports treating ordinary-paced litigation as undermining assertions of immediate irreparable urgency.
Some members feared pollution from the plant’s eventual operation, but the panel expected to resolve the appeal before operation began. Fischer v. Thomas, 78 F.4th 864, 868 (6th Cir. 2023), supported distinguishing future injury from a need for relief during the appeal.
One declarant described dust, noise, and vibrations from pipeline construction. Those harms were current, but East Tennessee Natural Gas—not TVA—was building the separately authorized pipeline. Because the organizations had sued only TVA and TVA asserted no control over that company, the panel concluded that vacating TVA’s decision would not redress those particular injuries.
The organizations’ litigation choices therefore affected the equitable balance, not the existence or ultimate merits of their NEPA claims.