422 F.Supp.3d 92
D.D.C.2019Background
- D.C. Circuit held the U.S. Army Corps of Engineers violated NEPA by issuing a permit to Dominion for the Surry–Skiffes Creek–Whealton transmission project without completing an Environmental Impact Statement (EIS), but the project was completed before the appellate opinion issued and the case was remanded for remedy.
- Plaintiffs sought vacatur of the Corps’ permit; defendants moved for remand without vacatur and to complete an EIS.
- The district court first addressed threshold defenses (waiver/forfeiture and judicial estoppel) and rejected them, finding defendants had not intentionally relinquished rights or taken clearly inconsistent positions.
- The court applied the Allied-Signal two-factor vacatur test: (1) seriousness of the agency’s procedural deficiency (EIS omission) and (2) disruptive consequences of vacatur.
- The court found the NEPA procedural error serious (first factor) but concluded vacatur would produce severe, real-world harms (risk of regional blackouts, inability to operate without a valid permit, and massive economic waste from dismantling and perhaps re‑building infrastructure).
- Holding: remand to the Corps to complete the EIS in accordance with the D.C. Circuit’s ruling, without vacating the permit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver/forfeiture of remedy | Defendants’ appellate brief mentioned remand without vacatur only once; thus they forfeited contesting vacatur | Remedy distinct from merits; parties commonly reserve remedy arguments until after merits; no forfeiture | Court: no waiver/forfeiture; will decide remedy on merits |
| Judicial estoppel | Defendants previously said courts could order removal; they should be estopped from opposing vacatur now | No clear inconsistency: earlier position allowed vacatur as possible, not mandatory; no court was misled; no unfair advantage | Court: judicial estoppel inapplicable |
| Seriousness of NEPA deficiency | NEPA violation is substantial; EIS required | (Defendants did not effectively rebut seriousness) | Court: deficiency is serious under Allied-Signal factor one |
| Appropriateness of vacatur (Allied-Signal factor two) | Vacatur is the standard remedy; alleged harms from vacatur are hypothetical and limited to permit revocation | Vacatur would likely force shutdown, create blackout risk, cause large economic and environmental costs from removal/reinstallation | Court: disruptive consequences are severe; vacatur denied — remand without vacatur ordered |
Key Cases Cited
- Nat'l Parks Conservation Ass'n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019) (appellate decision finding Corps violated NEPA and requiring an EIS)
- Allied-Signal, Inc. v. United States Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (establishes two-factor test for vacatur vs. remand)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (sets three-factor judicial estoppel framework)
- United States v. Olano, 507 U.S. 725 (1993) (defines waiver vs. forfeiture)
- Honeywell Intern., Inc. v. EPA, 374 F.3d 1363 (D.C. Cir. 2004) (distinguishes merits and remedy; discusses vacatur preference)
- Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012) (remand without vacatur where vacatur would jeopardize regional power reliability)