580 F.Supp.3d 588
W.D. Wis.2022Background
- The Cardinal–Hickory Creek (CHC) project is a proposed ~100–125 mile, 345 kV transmission line crossing the Driftless Area, including the Upper Mississippi River National Wildlife and Fish Refuge (the Refuge); utilities (ATC, Dairyland, ITC) plan to build, own, and operate it.
- RUS led an EIS in cooperation with USFWS, the Army Corps, and EPA; USFWS issued a Compatibility Determination and right-of-way in 2019–2020 but withdrew that determination in August 2021 after discovering errors; utilities then proposed a land exchange to cross the Refuge.
- The Corps’ Rock Island District verified the project under Nationwide Permit 12 (later replaced by NWP 57); the St. Paul District issued a Regional Utility General Permit (RUGP) covering portions in Wisconsin.
- Plaintiffs (environmental groups) challenged the EIS, USFWS compatibility decision/right-of-way, Corps permits, and proposed land transfer; utilities continued construction up to the Refuge and suggested a 30‑day notice before building through it.
- The court found the controversies not moot, held plaintiffs have standing (associational and individual member affidavits), and addressed merits: USFWS’ compatibility analysis and RUS’ EIS failed legal requirements; Corps RUGP verification was upheld.
- The court granted summary judgment in part, declaring that the compatibility determination precludes the CHC line from crossing the Refuge by right-of-way or land transfer, and invited briefing on remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of USFWS compatibility permit / reviewability of land exchange | Withdrawal of the 2019/2020 compatibility determination and pursuit of a land exchange are tactical; case is not moot because a Refuge crossing is likely to recur. | Withdrawal and pending land-exchange decisions render the original compatibility determination non-final and moot. | Not moot: voluntary cessation/withdrawal did not meet the heavy burden; land exchange or renewed permit likely, so claims ripe. |
| Standing | Organizational plaintiffs and members concretely use and plan to return to the Refuge; injuries are traceable and redressable by preventing a Refuge crossing. | Plaintiffs’ affidavits are generalized; only RUS funding decision is ripe and RUS funding is uncertain and minor. | Standing established: member affidavits sufficiently allege concrete, particularized, imminent recreational/aesthetic injuries; causation and redressability satisfied. |
| USFWS compatibility determination / maintenance exception | The CHC is not simply maintenance/minor realignment; it materially interferes with Refuge purposes (habitat fragmentation, scenic harm); compensatory mitigation cannot make an incompatible use compatible. | Intervenors claim it’s a minor realignment/maintenance (lower standard) and/or nevertheless compatible. | USFWS classification as maintenance was arbitrary and capricious; the project conflicts with the Refuge Comprehensive Conservation Plan and Refuge Act goals; compensatory mitigation cannot cure incompatibility; compatibility finding set aside—crossing by right-of-way or land transfer precluded. |
| NEPA: RUS EIS purpose and alternatives analysis | RUS defined an overly narrow, multi-part purpose largely echoing MISO/utilities, which improperly excluded reasonable non-wire alternatives (storage, demand response, local renewables, underground line). | Purpose statement and sub-purposes reflect legitimate project goals (reliability, congestion relief, interstate transfer capacity) and reasonably narrow alternatives. | RUS’ purpose statement and its narrowing of alternatives were flawed: adopting utilities’ self-serving project purposes improperly limited reasonable alternatives; EIS must be revisited. |
| Corps RUGP verification / cumulative impacts | Corps failed to analyze cumulative impacts of crossings under the RUGP and provided only superficial verification. | Project-specific verification need not contain exhaustive cumulative-impact analysis; district communications, verification memoranda, and conditions suffice. | Corps’ RUGP verification upheld: limited project-specific documentation can be adequate when verification letters, special conditions, and inter-district communications show cumulative-impact consideration (relying on circuit precedent). |
Key Cases Cited
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (voluntary cessation/mootness standard; heavy burden to show no recurrence)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements for environmental plaintiffs)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (limits on generalized intentions to visit as standing evidence)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (finality and ripeness: fitness and hardship factors)
- Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997) (NEPA: defining purpose controls the alternatives analysis)
- N. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) (repeal-and-replace doctrine; minor changes do not moot challenges)
- Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (10th Cir. 2015) (RUGP/NWP verification can be adequate without full cumulative-analysis in each letter)
- Snoqualmie Valley Pres. All. v. U.S. Army Corps of Engineers, 683 F.3d 1155 (9th Cir. 2012) (nationwide-permit verification regime is streamlined; detailed analysis not always required)