925 F.3d 500
D.C. Cir.2019Background
- The Army Corps issued a permit allowing Dominion to build electrical transmission towers across the James River (Surry–Skiffes Creek–Whealton project). The Corps did not prepare an Environmental Impact Statement (EIS).
- This court held the Corps violated NEPA for failing to prepare an EIS and vacated the permit in National Parks Conservation Ass’n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019).
- Petitioners (the Corps and Dominion) sought panel rehearing limited to remedy, arguing Allied‑Signal factors justified remand without vacatur because construction was complete and vacatur would be disruptive.
- Conservation Groups responded that Petitioners had previously assured the district court and this court that, if the Conservation Groups prevailed, the towers could be removed; they therefore argued Petitioners are judicially estopped (or have forfeited the argument) from opposing vacatur.
- The panel found Petitioners’ change of position troubling and noted Petitioners had not informed the court that construction completed just before the opinion, but concluded the district court is best suited to resolve remedy issues (including estoppel, forfeiture, and factual findings about disruption and costs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate remedy after NEPA violation (vacatur vs. remand without vacatur) | Vacatur of permit is appropriate to enforce NEPA and remedy the violation | Remand without vacatur is appropriate because construction is complete and vacatur would be highly disruptive and costly | Remanded to district court to determine whether vacatur remains appropriate; panel did not decide remedy |
| Judicial estoppel based on prior assurances about tower removal | Petitioners are judicially estopped from opposing vacatur because they previously represented towers could be removed if plaintiffs prevailed | Petitioners deny estoppel and now cite changed circumstances and disruptive consequences | Remanded for district court to consider whether estoppel or forfeiture bars Petitioners’ current position |
| Application of Allied‑Signal factors (seriousness of deficiency vs. disruptive consequences) | Allied‑Signal supports vacatur given the NEPA violation | Allied‑Signal favors remand without vacatur due to completed construction, electrification, and alleged higher investment | Panel did not resolve; directed district court to apply Allied‑Signal factors with additional factfinding |
| Waiver/forfeiture of remedy argument for not raising it earlier | Petitioners waived remedy argument by not raising it during merits briefing | Petitioners contend they can raise remedy now in light of new factual developments | Remanded for the district court to address waiver/forfeiture and related factual issues |
Key Cases Cited
- National Parks Conservation Ass’n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019) (held Corps violated NEPA by issuing permit without an EIS and vacated the permit)
- Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015) (describing NEPA’s core procedural requirement to prepare an EIS)
- Allied‑Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (explaining when vacatur may be inappropriate and remand without vacatur may be justified)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (describing doctrine of judicial estoppel)
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (district courts’ broad authority to fashion sanctions and remedies)