Conservation Law Found. v. U.S. Army Corps of Eng'rs
| Decision Date | 06 October 2019 |
| Docket Number | Civil No. 19-cv-868-JL |
| Citation | 457 F.Supp.3d 33 |
| Parties | CONSERVATION LAW FOUNDATION v. U.S. ARMY CORPS OF ENGINEERS, et al. |
| Court | U.S. District Court — District of New Hampshire |
Lisa Snow Wade, Jeremy David Eggleton, Nathaniel Burr Morse, Orr & Reno PA, Concord, NH, for Conservation Law Foundation.
Devon L. McCune, US Dept of Justice, Denver, CO, Kate R. Bowers, US Department of Justice, James T. Banks, Pro Hac Vice, Mary Anne Sullivan, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Wilbur A. Glahn, III, McLane Middleton, Manchester, NH, Barry Needleman, McLane Middleton, Concord, NH, Elizabeth A. Maldonado, Pro Hac Vice, Eversource Energy Service Co., Berlin, CT, for U.S. Army Corps of Engineers, et al.
This is an administrative and environmental law action concerning whether a federal agency's issuance of a construction permit complied with applicable federal law. Defendant Public Service Company of New Hampshire d/b/a Eversource Energy ("Eversource") seeks to run underwater electric cables beneath the floor of Little Bay, in the New Hampshire seacoast region, as part of a broader plan to support the reliable delivery of electric power. In May 2019, defendant U.S. Army Corps of Engineers concluded that the project would not have significant impact on the environment and thus granted Eversource a permit to begin work on the project. Plaintiff Conservation Law Foundation contends that in granting this permit, the Corps failed to comply with procedures required by the National Environmental Policy Act, the Clean Water Act, and other federal laws. It therefore moved to enjoin Eversource from installing the cables pending further administrative proceedings, which CLF contends, are required under federal law.
On September 6, 2019, the court held a day-long emergency hearing on the CLF's request to temporarily restrain a test run of the "jet plow" method for running the cables, scheduled for September 9. After denying emergency relief, CLF requested an expedited hearing on the project as a whole, which was scheduled to begin on October 5. Eversource represented that further delays requiring its barge and equipment to remain idle would increase the cost of the project by $125,000 per day of delay. The court therefore suspended an ongoing criminal jury trial to hold a preliminary injunction hearing on October 9. Due to the 9th being a religious holiday for at least one counsel of record, the court suggested, and then approved, that the parties conduct trial depositions in advance and submit those depositions into evidence. The hearing was completed on October 9, 2019.
After considering the parties’ briefs and oral arguments, the court finds that CLF has failed to establish it is entitled to the preliminary injunctive relief it seeks. In short, CLF has failed to show that it is likely to succeed on the merits of its administrative law claims by proving that the Corps’ issuance of the permit was arbitrary or capricious and thus in violation of the Administrative Procedure Act. Relatedly, CLF has also failed to show a likelihood, rather than a possibility, of irreparable harm. Given these insufficient showings, and the competing equities at play (including the public interests represented by CLF and the Corps), the court denies CLF's motion for preliminary relief.
The parties have stipulated to the following facts.
Plaintiff Conservation Law Foundation, a not-for-profit organization "dedicated to solving environmental problems that threaten the people, communities and natural resources of New Hampshire and other New England States,"1 seeks to enjoin defendant Eversource from installing underwater cables2 beneath the floor of Little Bay, which lies between Durham and Newington, New Hampshire, as one part of its planned Seacoast Reliability Project.3 Little Bay is part of the Great Bay estuary, which has been designated an estuary of national significance under Section 320 of the Clean Water Act.4 The Great Bay estuary provides a diversity of essential habitats, including eelgrass, salt marsh, mudflats, and oyster beds, including several commercial oyster aquacultural sites.5
The Project as a whole involves the construction a new 12.9-mile 115kV electric transmission line between substations in Madbury and Portsmouth, New Hampshire.6 As to Little Bay, the Project proposes "(1) the removal of portions of existing, unutilized cables owned and formerly operated by Eversource, (2) the installation of three new cables by the use of a jet plow, hand-jetting, and trenching, and (3) the installation of concrete mattresses in areas where the required full burial depth of 42 [inches] cannot be achieved."7
In April 2016, Eversource submitted an application to the New Hampshire Department of Environmental Services ("NHDES") and defendant U.S. Corps of Engineers for permits for the Project.8 The same day, Eversource also applied to the New Hampshire Site Evaluation Committee ("NHSEC") for a Certificate of Site and Facility under N.H. Rev. Stat. ch. 162-H.9 For the underwater cables in Little Bay, Eversource proposed installing them by means of jet plowing and hand-jetting.10 As described by Eversource:
In February 2018, "NHDES issued findings based on technical review of the Project and recommended that Eversource conduct a jet plow trial run across a portion of Little Bay ‘to provide useful information about [Eversource's] assumptions regarding the jet plow.’ "12 NHDES revised its findings in October 2018.13 In January 2019, NHSEC issued its Decision and Order Granting Eversource's Application for a Certificate of Site and Facility,14 which approved the Project, "including the installation of the three cables across Little Bay by means of jet plowing, hand-jetting, and trenching, and the installation of up to 8,681 square feet of concrete mattresses."15 In doing so, NHSEC "ordered, inter alia, that the Certificate was ‘conditioned upon compliance with the Section 404 General Permit (the New Hampshire Programmatic General Permit) and the 401 Water Quality Certification.’ "16 Further, the Certificate "imposed as a condition the requirement that Eversource develop a jet plow trial run plan to be approved by NHDES and to implement the approved jet plow trial run plan at least 14 days prior to the scheduled start of the submarine cable installation in Little Bay."17
CLF moved for rehearing of the NHSEC Order in March 2019, which NHSEC denied the following month.18 In May 2019, "CLF filed a Notice of Appeal with the New Hampshire Supreme Court challenging NHSEC's Certificate as it relates to the installation of concrete mattresses in Little Bay without Eversource having obtained a grant of right from the Governor and Executive Council."19 This appeal remains pending. In August 2019, the New Hampshire Supreme Court denied CLF's request for an immediate stay of NHSEC's Decision and Certificate,20 which also approved the jet plow trial run.21
While New Hampshire agencies assessed Eversource's requests for a wetlands permit and a site and facility certificate, the Corps assessed Eversource's request for permits under the National Environmental Policy Act and the Clean Water Act. In March 2019, CLF wrote to the Corps to object "to the use of the current Department of the Army General Permits for the State of New Hampshire (General Permit No. NAE-2016-02415) for the [P]roject, asserting that the [P]roject must proceed under an individual permit."22 In April 2019, the Corps issued a Public Notice requesting comments to be used "in the preparation of an Environmental Impact Statement or Environmental Assessment under the National Environmental Policy Act ("NEPA") and to determine the need for a public hearing and the overall public interest of the proposed activity."23 In July 2019, the Corps decided that no public hearing was necessary.24 The next day, the Corps "signed Permit No. NAE-2015-00665 for the Project as well as a Memorandum for Record including the Environmental Assessment and Statement of Findings ("EA/SOF") for the Project's individual permit," which determined, among other findings, that the Project did not necessitate an environmental impact statement under NEPA.25
In August 2019, CLF filed its Complaint for Declaratory Judgment and Injunctive Relief26 and a Motion for Temporary Restraining Order and Preliminary Injunction.27 In September 2019, the court set an expedited briefing and hearing schedule to consider CLF's emergency request to preliminarily enjoin a jet plow trial run required by NHDES, which was scheduled to being 3 days after the hearing date. After a day-long hearing, the court orally denied CLF's emergency request for the reasons stated on the record, including that CLF had failed to show that the jet plow trial would likely cause irreparable harm.28 The court then set an expedited schedule for CLF's remaining requests for preliminary relief against...
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