965 F. Supp. 2d 67
D.D.C.2013Background
- Utilities (PPL Electric & PSE&G) applied for NPS special use permits and an expanded right-of-way to replace an existing 230 kV line with a 500 kV Susquehanna–Roseland (S‑R) transmission line through three park units (Delaware Water Gap NRA; Middle Delaware NSR; Appalachian NST). NPS issued a DEIS, FEIS, Record of Decision (ROD), and permits.
- PJM identified grid reliability problems driving a 500 kV solution; applicants proposed mitigation/compensation and provided a proposed compensatory mitigation methodology and dollar figure during DEIS comments.
- FEIS identified the applicant’s route as NPS’s preferred alternative; ROD approved permits and required compensatory mitigation, and a Memorandum of Agreement created a Middle Delaware Mitigation Fund.
- Plaintiffs (conservation organizations) challenged NPS decisions under NEPA, the NPS Organic Act, and the Wild and Scenic Rivers Act (WSRA), alleging inadequate EIS analysis (mitigation, alternatives, scope, supplemental EIS), arbitrary non-impairment findings, and WSRA violations.
- District court reviewed the administrative record under the APA arbitrary-and-capricious standard and granted summary judgment to defendants, denying plaintiffs’ motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA — mitigation analysis (including compensatory mitigation) | FEIS lacked sufficient detail/supporting analysis of mitigation and did not disclose compensatory mitigation so public couldn’t evaluate Fund or mitigation adequacy | FEIS included fixed and adaptive mitigation, cited specific plans and app. detail; compensatory mitigation discussed and applicant’s proposed methodology was in the record; final dollar figure developed during negotiation | Court: NPS satisfied NEPA; FEIS reasonably complete re: mitigation and compensation; no arbitrary/ capricious action |
| NEPA — supplemental EIS for $66M Fund | NPS had to prepare an SEIS after ROD fixed $66M because the new funding amount materially changed environmental consequences | Amount and details of Fund did not change the environmental analysis in FEIS; compensatory mitigation was already contemplated; SEIS not required | Court: No SEIS required; new monetary figure did not present a seriously different picture of impacts |
| NEPA — range of alternatives (including non‑transmission/renewables) | NPS failed to evaluate reasonable non‑transmission alternatives (distributed generation, renewables) | FEIS considered purpose/need tied to applicant’s permits and PJM reliability needs; NPS evaluated and rationally rejected non‑transmission options as not meeting purpose | Court: NPS met NEPA rule of reason; alternatives were reasonable and rationally considered/rejected |
| NEPA — scope of impacts beyond park boundaries (VSLs; viewshed impacts elsewhere) | NPS improperly limited analysis to within Visual Split Locations; should have assessed indirect effects (e.g., Steamtown viewshed) causally linked to approval | NPS’s action was the permit to build through parks; VSLs reasonably constrained review to area where NPS controlled routing; no reasonably close causal link shown for off‑park impacts | Court: NPS’s scope determination was reasonable; no requirement to analyze effects lacking proximate causal relation |
| NPS Organic Act & WSRA — non‑impairment and river protection | NPS failed to justify non‑impairment (conclusory labels; no objective thresholds); S‑R Line will substantially interfere with Middle Delaware values | NPS gave specific mitigation measures, explained rationale for non‑impairment, considered legal/easement context and likely outcomes, and found no substantial interference under WSRA | Court: NPS provided rational connection between facts and non‑impairment decision; decisions under Organic Act and WSRA were not arbitrary and capricious |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (standard that agency action must not be arbitrary and capricious)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires discussion of mitigation to allow informed decisions)
- Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir.) (mitigation discussion may include fixed measures and adaptive management)
- Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir.) (EIS need not contain every mitigation detail; reasonably complete discussion suffices)
- Dep't of Transp. v. Public Citizen, 541 U.S. 752 (proximate causal relationship required to compel analysis of indirect effects)
- Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (NEPA effects require reasonably close causal relationship)
- City of Olmsted Falls v. FAA, 292 F.3d 261 (6th Cir.) (supplemental EIS required only when new info gives seriously different picture)
- Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C.) (agency must explain non‑impairment with reasoned analysis; avoid conclusory labels)
- Daingerfield Island Protective Society v. Babbitt, 40 F.3d 442 (D.C. Cir.) (agency can rely on legal/property realities in selecting least intrusive feasible alternative)
- Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170 (9th Cir.) (WSRA review under APA; deference to agency on substantial interference determination)
- Bluewater Network v. Salazar, 721 F. Supp. 2d 7 (D.D.C.) (agency must link impacts to non‑impairment conclusion)