916 F.3d 1075
D.C. Cir.2019Background
- Dominion sought Corps of Engineers permits to build an electrical switching station and two transmission lines (including ~250-foot towers) to address generation shortfalls, with an 8-mile line crossing the James River and passing through the Jamestown-area historic district.
- The Corps issued an Environmental Assessment and concluded "no significant impact," so it did not prepare an EIS; it granted the permit and executed a Memorandum of Agreement with mitigation commitments from Dominion.
- Numerous federal and state agencies, preservation organizations, experts, members of Congress, and the Advisory Council on Historic Preservation strongly objected, citing methodological flaws in visual, cultural, socioeconomic, and alternatives analyses and claiming significant harm to nationally important historic resources (e.g., Jamestown, Carter’s Grove, Captain John Smith National Historic Trail).
- The National Trust and preservation groups sued, alleging violations of NEPA, the Clean Water Act (alternatives/cumulative impacts), and the National Historic Preservation Act (section 110(f) duty to minimize harm to National Historic Landmarks).
- The district court granted summary judgment to the Corps; the D.C. Circuit reviewed de novo and focused on whether the Corps’ "no significant impact" finding was arbitrary and capricious and whether an EIS was required.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA required an EIS because impacts to historic resources are significant | Corps’ EA understates scope/intensity; agency and expert criticism shows substantial disputes and methodological flaws that render impacts significant | Corps argued comments showed passion, not substantive dispute; visual/aesthetic impacts are subjective and normally suitable for an EA | Court: Reversed—EA inadequate; record shows controversy, unique historic context, and adverse effects to National Register properties, so an EIS is required |
| Whether Corps’ consultation/comments from expert agencies created a “highly controversial” effect under NEPA | Agency criticisms (Park Service, Advisory Council, Argonne, state historic office) reflect substantive dispute about size, nature, and effect | Corps said it addressed concerns via revisions and that Interior Secretary Zinke’s concurrence withdrew Park Service opposition | Court: Agency and expert objections amount to "something more" than mere passion; controversy factor satisfied |
| Whether the Project’s proximity to unique historic resources makes intensity factor met | Project places large towers directly across the only Congressionally-designated historic water trail and near many NRHP-eligible/listed sites; even non-physical visual intrusions defeat purpose of preservation | Corps argued towers would not dominate or block views and existing modern intrusions make impacts minor | Court: Unique characteristics/intensity factor met; visual impacts undermine Congress’s preservation objectives and are not comparable to small existing intrusions |
| Meaning of "directly" in NHPA §110(f) duty to minimize harm to National Historic Landmarks | "Directly" means causation (no intervening cause); visual or other non-physical effects can be "direct" if they immediately cause harm to a landmark | Corps and district court read "directly" to require physical intrusion on landmark grounds | Court: "Directly" refers to causation, not limited to physical intrusion; Corps must reassess its Preservation Act analysis on remand |
Key Cases Cited
- Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978) (courts defer to agency's informed decisionmaking but require adequate procedures)
- Myersville Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (standard for reviewing agency decision not to prepare an EIS)
- Sierra Club v. U.S. Department of Transportation, 753 F.2d 120 (D.C. Cir. 1985) (agency must make a convincing case for no significant impact)
- American Rivers v. FERC, 895 F.3d 32 (D.C. Cir. 2018) (NEPA requires an honest, hard look; speculative estimates insufficient)
- Town of Cave Creek v. FAA, 325 F.3d 320 (D.C. Cir. 2003) ("controversial" means substantial dispute over size, nature, or effect)
- North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172 (9th Cir. 1982) (substantive expert disagreement can show controversy requiring an EIS)
- Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975) (opposition alone insufficient to show controversy)
- Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002) (remand for inadequate consideration of significant environmental values)
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) (lead agency must take other agencies' comments seriously but need not follow them slavishly)
- Biodiversity Conservation Alliance v. U.S. Forest Service, 765 F.3d 1264 (10th Cir. 2014) (substantial doubt about agency methodology can show controversy and require an EIS)
- Maryland-National Capital Park and Planning Comm'n v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973) (distinguishes subjective aesthetic judgments from cases where Congress intended preservation of unencumbered views)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agency must give adequate reasons when changing position)
- American Iron & Steel Institute v. EPA, 115 F.3d 979 (D.C. Cir. 1997) (court may withhold ruling on other claims when agency must revisit core analysis)