"As We Know, Elections Have Consequences........"
May 29, 2018
By: Blair M. Gardner
From the U.S. District Court in Washington comes a lengthy opinion that rejects a challenge from three conservation organizations to a determination of the Army Corps of Engineers to issue a Finding of No Significant Impacts (FONSI) and a decision not to prepare an environmental impact statement. The court’s opinion is a carefully expressed analysis of why the Corps’ decision complied with NEPA and other statutes. It is particularly interesting, however, for its inferences about how federal agencies participate, affirmatively or in opposition, in the permitting issues associated with controversial projects.
The Chesapeake Bay at its confluence with the James River is possibly the most important maritime region in America. It is the home of the Navy’s Atlantic fleet, numerous other military installations, and the most important coal export terminal on the East Coast. Major cities are located along the Bay and the rivers that flow into it. For historians and others who prize the past, it marks the beginning of English settlement at Jamestown and the birth of the nation at Yorktown. It remains the home of a Native American people who watched the English arrive in 1607. So when Virginia Electric & Power Company (VEPCO) announced in 2013 that it wanted to construct a major transmission line, the Surry-Skiffles Creek-Whealton Project, across the James, it was certain to be controversial, meaning the project would be challenged by multiple environmental and conservation groups.
Constructing anything across a navigable river (which the James is to Richmond) requires a Clean Water Act permit from the Corps. In turn, the Corps must comply with NEPA - the National Environmental Policy Act. NEPA is at heart a procedural statute, one designed to prohibit uninformed, but not necessarily unwise, agency decisions. It is calculated to require an agency have available, and to carefully consider, detailed information concerning environmental impacts. The relevant information gathered by the agency must be made available to a wider audience that may have a role in the decision-making process as well as the implementation of any eventual decision.
The NEPA process can be nothing short of excruciating. In the hands of determined and dedicated environmental opponents, every environmental effect must be analyzed, any effect will always be significant, all proposals will require the preparation of an environmental impact statement (EIS) and nothing should ever be constructed. To add an additional layer of complexity to the environmental evaluation of the project, the Department of the Interior through the National Park Service, invoked the National Historic Preservation Act (remember that Jamestown is close by) and the consultation process required by that statute. From the very beginning the Park Service asserted that the impacts from the project would be significant and that an EIS would be required.
For three and a half years, VEPCO funded the studies needed by the Corps to perform its required environmental analysis. Among the more innovative aspects was a 400 page “cultural resources effects assessment” of the visual impacts of the powerline. It contained photographs of “the project from key vantage points, line of sight analysis and photo-simulations prepared by an expert consultant” to depict how the powerline crossing would appear to the human eye. (Slip Op. at 15.) The Park Service objected in March 2016 because the simulation only projected how the transmission line would appear form vantage points on the land, but not the river. VEPCO updated the simulation in August 2016 to include that view as well. It really did not matter, because in January 2017 then Interior Secretary Jewell in her final month in office stated “in no uncertain terms” the Department’s “substantial concerns” with the project. (Slip Op. at 15-16.) In effect, “no mitigation measure can effectively offset the impact to the landscape that the transmission line would cause.” (Slip Op. at 16.)
Two months later, newly appointed Interior Secretary Ryan Zinke acknowledged that additional information that the Corps had supplied to Park Service reflected “thoughtful and thorough consideration of the issues raised by my predecessor.” (Slip Op. at 19.) The Park Service withdrew its requirement that an EIS was required and approved the Corps’ environmental assessment and FONSI. It was over except for the inevitable lawsuit.
Two national organizations, the National Parks Conservation Association and the National Trust for Historic Preservation, brought suit to challenge the Corps’ decision. The latter group was joined by the Association for the Preservation of Virginia Antiquities, traditionally a group of blue-haired matrons who designated old buildings in Virginia for their unique historical or architectural values. In his 44 page opinion, district court Judge Royce Lamberth explained why the Corps complied with each of the three statutes it sought to implement in its permitting decision.
Appellate review of the decision is almost certain. Whether or not the decision is upheld, it is discouraging to acknowledge the reason an EIS was not required. It had nothing to do with how faithfully agencies attempted to comply with statutes and their regulations. Instead it had everything to do with the outcome of an election.
The case is National Parks Conservation Association v. Semonite, Civil No. 17-CV-01361-RCL, U.S. District Court for the District of Columbia (May 23, 2018).
“As We All Know, Elections Have Consequences . . .”
 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F.Supp.3d 101, 119 (D.D.C. 2017).