Conservation Law Found. v. U.S. Army Corps of Eng'rs, Civil No. 19-cv-868-JL

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
Writing for the CourtJoseph N. Laplante, United States District Judge
Citation457 F.Supp.3d 33
Parties CONSERVATION LAW FOUNDATION v. U.S. ARMY CORPS OF ENGINEERS, et al.
Decision Date06 October 2019
Docket NumberCivil No. 19-cv-868-JL

457 F.Supp.3d 33

CONSERVATION LAW FOUNDATION
v.
U.S. ARMY CORPS OF ENGINEERS, et al.

Civil No. 19-cv-868-JL

United States District Court, D. New Hampshire.

Signed October 6, 2019
Filed October 12, 2019


457 F.Supp.3d 39

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.

MEMORANDUM ORDER

Joseph N. Laplante, United States District Judge

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

457 F.Supp.3d 40

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.

I. Background

The parties have stipulated to the following facts.

A. The Little Bay project

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

457 F.Supp.3d 41

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:

The jet plow operation will utilize high-volume water pressure to temporarily liquefy the soft sediments immediately ahead of the plow blade.... The submarine cable will feed from the barge, pass through the back of the blade, and into the liquefied sediments. The majority of the sediment will settle into the trench leaving the cable installed at the desired depth.

The jet plow will reach within approximately 600 feet of the east shore, at which time the water depth will not allow further advancement of the barge towards the shoreline. At this point, the submarine cable will be unloaded from the plow, and ... the excavated cable landing trench will be buried by divers utilizing water jet hoses and an excavator in the nearshore intertidal area. The intertidal areas that will be subject to diver burial and excavation will be enclosed with silt curtains.11

B. New Hampshire agency proceedings

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

457 F.Supp.3d 42

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

C. Army Corps of Engineers proceedings

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...

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    • May 6, 2020
    ...has a vested interest in the efficient functioning of the credit market which depends in no small degree on the ability to collect 457 F.Supp.3d 33 debts.19 ORDER For the foregoing reasons, the court hereby enters a temporary restraining order enjoining the Attorney General from enforcing t......

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