Federal Appeals Court Invalidates Dominion’s Permit for Already-Built Power Lines
On March 1 the U.S. Court of Appeals for the District of Columbia issued a blockbuster decision that has wide-ranging implications for preservation groups, Native American tribes, developers, and consultants.
In National Parks Conservation Association v. Todd T. Semonite, Lieutenant General et al. the Court considered whether the U.S. Army Corps of Engineers (“Corps”) conducted a valid permitting review process before approving Dominion Energy’s overhead transmission project near historic Jamestown, Virginia.
The project consists of seventeen 250-ft. steel towers supporting electrical lines across the James River. Dominion constructed the towers even as this litigation was pending and first energized the lines last week.
Dominion initially applied to the Corps in 2013 to greenlight the undertaking known as the Surry-Skiffes Creek-Whealton Project, or “Skiffes Creek.” Because the Corps has jurisdiction over projects concerning “waters of the United States” (33 C.F.R. § 328.1), the agency must satisfy statutory obligations before permitting such projects:
- First, the National Environmental Policy Act (“NEPA”) requires that the Corps consider alternatives to the project and prepare an Environmental Impact Statement (“EIS”) if the project would “significantly affect [] the quality of the human environment” (42 U.S.C. § 4332(2)(C)). This analysis must take into account effects on historic resources (40 C.F.R. § 1508.8). If a preliminary environmental assessment indicates that the project would have “no significant impact” on the environment, however, the Corps may bypass the EIS requirement (40 C.F.R. § 1508.9).
- Second, the Clean Water Act (“CWA”) requires that the Corps determine whether any “practicable alternative” exists that “would have less adverse effect on the aquatic ecosystem” (40 C.F.R. § 230.12(a)(3)(i)).
- Third, the National Historic Preservation Act (“NHPA”) requires that the Corps “take into account the effect of the undertaking on any historic property” and, if the project might “directly and adversely affect any National Historic Landmark,” take steps “to minimize harm to the landmark” (54 U.S.C. §§ 306107–08).
The permitting process for this project was highly controversial from the start. Preservation and environmental groups, and thousands of members of the public, warned that the power line project would have irreparably adverse effects on heritage sites and the local tourism economy. Other federal agencies agreed. The federal Advisory Council on Historic Preservation and the National Park Service argued that the adverse effects of such visible modern construction to such a historic and largely intact landscape simply could not be mitigated. In an attempt to resolve these concerns, the Corps also negotiated a Memorandum of Agreement pursuant to Section 106 of the NHPA in which Dominion agreed to pay $90 million to a variety of preservation and environmental groups for activities intended resolve adverse effects to historic properties.
Nonetheless, after producing an Environmental Assessment, the Corps determined that the project would not significantly impact the historic setting of the James River, declined to produce an EIS, and issued the permit to Dominion.
In response, the National Parks Conservation Association, the National Trust for Historic Preservation, and Preservation Virginia sued in district court. They alleged that the Corps failed to satisfy its legal obligations under NEPA, CWA, and NHPA. The district court found, however, that the “Corps made a ‘fully informed and well-considered’ decision” in issuing the permit and granted summary judgment in favor of the agency.
On appeal, the Court ruled that the Corps’s finding that the project would have no significant impact on the environment or historic resources was “arbitrary and capricious” because “important questions about both the Corps’s chosen methodology and the scope of the project’s impact remain unanswered.” Circuit Judge Tatel noted that “federal and state agencies with relevant expertise harbor serious misgivings about locating a project of this magnitude in a region of such singular importance to the nation’s history.”
Remanding the case with instructions to vacate the permit, the Court ordered the Corps to develop an EIS that will identify and rigorously analyze the project’s environmental (including historic) effects. The Court also clarified interpretation of Section 110(f) of the NHPA. This section requires an agency to minimize harm to any National Historic Landmark “directly and adversely affected by a project.” Circuit Judge Tatel clarified that “direct” effects can be visual effects, and that proposed projects need not physically alter a National Historic Landmark for Section 110(f) to apply.
This decision has other far-reaching implications for many groups. How will it affect you?
If you are a TRIBE:
While the 26-page court decision contains exactly one sentence mentioning Native Americans, it has positive implications for tribes in Virginia and nationwide.
First, since the Corps first analyzed this project, six additional tribes in Virginia received federal recognition. Many of these tribes felt unfairly excluded from earlier reviews of the transmission project and have strong ties to the historic resources located in the area of potential effect. Newly federally recognized tribes will now have a right to consult fully during the preparation of the EIS.
Second, we often hear concerns from tribes that the Corps does not take their concerns seriously and will permit a project without fully considering the possible project alternatives or the scope of a project’s impacts on tribal heritage. This decision provides a helpful explanation of when development projects require a more in-depth analysis through an EIS. The decision also provides a roadmap for ways that tribes can prove that projects meet the test for “intensity”—including how to satisfy the court that a “substantial dispute exists as to the size, nature, or effect of the major federal action.”
If you are a DEVELOPER:
If you are seeking permits from the Corps, this decision is a good reminder that the Corps does not always follow the law and that the developer assumes the risk if it proceeds to construction while a permit is subject to litigation. In addition, the Court found that disregarding federal agency input for purposes of political expediency is inconsistent with the law. For developers, it is a costly cautionary tale that applying political pressure to make your permitting problems go away (such as when then-Interior Secretary Ryan Zinke tried to overrule the previous Administration and push through the Dominion permits) can cause more risk and costs for the project than complying with the law from the outset.
The decision also highlights the perils of siting a proposed project in an area with sensitive historic resources and strong local opposition. Developers who invest in early planning that avoids historic resources wherever possible will encounter fewer conflicts in the permitting process and a smoother path to approval.
If you are a CONSULTANT:
The Court’s analysis emphasizes that the cultural resources effects assessment prepared by Dominion and its consultants was highly problematic. Expert commenters called the methodologies used by the consultants “scientifically unsound,” “completely contrary to accepted practice,” and “fundamentally flawed.” Experts challenged the accuracy of data used by Dominion and its consultants, and also accused the Corps of “conflating a cultural resources analysis with the very different visual resources analysis.” The Advisory Council and NPS repeatedly objected that the visual simulations and visual analyses conducted by Dominion’s consultants did not meet professional standards.
Because of the controversy about the scientific soundness of the reports prepared by Dominion and its consultants, the Court found there was “substantial doubt about the adequacy of the Corps’s methodologies,” a point on which it relied to order an EIS.
The lesson for consultants and the developers who hire them: poor work product can imperil a project, and consultants need to be sure they have appropriate expertise to advise their clients well.
If you are a PRESERVATIONIST:
Know that your advocacy and your comments matter. The Court specifically noted that 50,000 members of the public had commented on the need for an EIS to support its finding that there was a substantial dispute about the size, nature, or effect of the action.
Preservation groups can also appreciate that the Court’s decision emphasizes the importance of heeding warnings from federal agencies with relevant expertise. Indeed, the Court made it clear that the Corps could not disregard input from the Advisory Council on Historic Preservation or the National Park Service. The Court reiterated that it owes no deference to the Corps’s interpretation of the NHPA, but instead must give deference to the ACHP and NPS—the two agencies that are charged with implementing the NHPA. So even if the lead federal agency is ignoring its responsibilities, advocating to other agencies can help.
Finally, preservationists can rejoice that the Court has reaffirmed the potential of visual intrusions to adversely affect historic sites. This clarification in the Court’s decision will support future efforts to preserve the viewsheds of National Historic Landmarks.
Marion Werkheiser is Managing Partner of Cultural Heritage Partners, PLLC, a global law and policy firm that serves clients who seek to preserve and share history and culture. Questions about how this decision will affect you? Email Marion at marion@culturalheritagepartners.com.
This blog post is not intended to provide legal advice to any particular company or entity.