311 F. Supp. 3d 350
D.C. Cir.2018Background
- Dominion proposed a 500kV transmission project crossing the James River near Jamestown that would install 17 towers (four ~295 ft; 14 ~189 ft) and affect National Park Service-managed and other historic resources.
- The U.S. Army Corps of Engineers conducted NEPA and CWA review, circulated notices, conducted Section 106 consultation under the NHPA, and in June 2017 issued an EA, a FONSI, a CWA Section 404 Statement of Findings, and a permit conditioned on an MOA mitigating historic impacts.
- Plaintiffs (NPCA; National Trust; Preservation Virginia) sued, alleging violations of NEPA and the CWA; National Trust and Preservation Virginia also challenged compliance with NHPA §110(f).
- Plaintiffs moved for summary judgment seeking an order vacating the permit and requiring an EIS; defendants (Corps and Dominion) cross-moved to uphold the administrative record.
- The Court reviewed the administrative record under the APA arbitrary-and-capricious standard and denied plaintiffs’ motions and granted defendants’ cross-motions, upholding the Corps’ FONSI, alternatives and mitigation analyses, public-participation decisions, CWA public-interest/practicable-alternatives review, and NHPA procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps should have prepared an EIS (NEPA) | Project is highly controversial; multiple CEQ significance factors implicated (historic viewshed, precedent, uncertainty) so EIS required | Corps took a hard look, addressed methodological critiques, and reasonably found impacts "moderate at most" so EA/FONSI adequate | Corps satisfied NEPA; FONSI upheld, no EIS required |
| Adequacy of alternatives analysis (NEPA & CWA) | Corps improperly rejected underwater and other alternatives; relied on applicant without independent evaluation | Corps evaluated 28 alternatives, independently analyzed feasibility (cost, NERC compliance, timing, logistics) and reasonably eliminated impracticable options | Corps’ alternatives analysis and narrowing were reasonable and not arbitrary |
| Public comment/draft EA circulation (NEPA) | Corps should have circulated draft EA/FONSI for 30-day public review given controversy and precedent-setting nature | CEQ regs allow discretion; Corps’ action not without precedent and permitting actions normally use EA, so draft circulation not required | Corps acted within its discretion; no public circulation violation |
| Application of NHPA §110(f) (NHLs) | §110(f) applies because harms to Carter’s Grove are direct (caused by project) and require heightened planning to minimize harm | §110(f) applies only where NHL is directly (physically) affected; visual-only impacts are indirect and Section 106 process/MOA satisfied §110(f) duties | Court reads “directly” to mean physical effects; §110(f) not triggered; even if it were, Corps met heightened procedural obligations via consultation and MOA |
Key Cases Cited
- Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (agencies must consider environmental impacts though NEPA is procedural)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires agencies to take a hard look; EIS procedural focus)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary-and-capricious standard for agency action)
- Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C. Cir.) (framework for evaluating FONSI and significance factors)
- Mayo v. Reynolds, 875 F.3d 11 (D.C. Cir.) (limited review of agency decision not to prepare EIS)
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir.) (agency need not adopt commenters' preferred methodology; must take comments seriously)
- Presidio Historical Ass'n v. Presidio Trust, 811 F.3d 1154 (9th Cir.) (discussion of NHPA §110 and relation to Section 106 consultation)
- Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497 (D.C. Cir.) (NEPA mitigation requirements are procedural and need not be fixed in minute detail)