Corps of Engineers to Prepare EIS for Permit to Construct Power Lines Over Historic James River

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On March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.”

The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act.

The Virginia Electric and Power Company (VEPCO), the public utility providing electrical power to this area, decided to retire two coal-fired powerplants after the Environmental Protection Agency (EPA) issued a rule in 2012 requiring power generating facilities to reduce certain air emissions. To redress this looming shortfall in electricity, VEPCO applied for a permit to construct a new electrical switching station and two transmission lines; one of these lines would cross the James River and cut through the historic district encompassing Jamestown and other historic resources, which requires a Corps permit.

Following notice of the application, the Corps began its environmental assessment, and contacted interested parties and government agencies that have an interest or jurisdictional authority in this area. Apparently, the reaction was both loud and negative. In addition to thousands of adverse comments from the public, the Advisory Council on Historic Preservation warned that the project “threatens to irreparably alter a relatively unspoiled and evocative landscape that provides context and substance for the historic properties encompassed within.” The Corps, however, asserted that the effects on these “national treasures” were moderate at most and inherently subjective.

The District Court agreed with the Corps and granted summary judgment against the plaintiff. In a very strong opinion, the Court of Appeals reversed the District Court, and admonished the Corps for its conduct of the review of this application. Finding that “[t]he Corps has… failed to make a ‘convincing case’ that an EIS is unnecessary,” the Court of Appeals reversed and remanded to the District Court with instructions to vacate VEPCO’s permit and to direct the Corps to prepare an EIS.

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