Nat'l Parks Conservation Ass'n v. Semonite, Civil No. 17–CV–01361–RCL

• Decision Date: 23 May 2018
• Docket Number: Civil No. 17–CV–01574–RCL,Civil No. 17–CV–01361–RCL
• Citation: 311 F.Supp.3d 350
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, Plaintiff, v. Todd T. SEMONITE, Lieutenant General, U.S Army Corps of Engineers and Robert M. Speer, Acting Secretary of the Army, Defendants, Virginia Electric and Power Company, Defendant–Intervenor. National Trust for Historic Preservation in the United States and Association for the Preservation of the Virginia Antiquities, Plaintiff, v. Todd T. Semonite, Lieutenant General, U.S. Army Corps of Engineers and Robert M. Speer, Acting Secretary of the Army, Defendants, Virginia Electric and Power Company, Defendant–Intervenor.
• Court: U.S. District Court — District of Columbia

311 F.Supp.3d 350

NATIONAL PARKS CONSERVATION ASSOCIATION, Plaintiff,

v.Todd T. SEMONITE, Lieutenant General, U.S Army Corps of Engineers and Robert M. Speer, Acting Secretary of the Army, Defendants,Virginia Electric and Power Company, Defendant–Intervenor.

National Trust for Historic Preservation in the United States and Association for the Preservation of the Virginia Antiquities, Plaintiff,

v.Todd T. Semonite, Lieutenant General, U.S. Army Corps of Engineers and Robert M. Speer, Acting Secretary of the Army, Defendants,Virginia Electric and Power Company, Defendant–Intervenor.

Civil No. 17–CV–01361–RCL

Civil No. 17–CV–01574–RCL

United States District Court, District of Columbia.

Signed May 23, 2018

Filed May 24, 2018

Jessica L. Duggan, Pro Hac Vice; Matthew Adams, Pro Hac Vice; Dentons LLP, San Francisco, CA, Daniel G. Morris, Dentons US LLP, Washington, DC, for Plaintiff.

Dedra Seibel Curteman, Heather E. Gange, U.S. Department of Justice, Joseph Thomas Mathews, U.S. Department of Justice ENRD Natural Resources Section, Washington, DC, for Defendants.

Eric J. Murdock, Hunton Andrews Kurth LLP, Washington, DC, Harry M. Johnson, III, Hunton Andrews Kurth LLP, Richmond, VA, for Defendant–Intervenor.

Tyler Joseph Sniff, Stack & Associates, P.C., for Amici Curiae Coalition to Protect Americas National Parks, Inc., Jonathan B. Jarvis, and American Rivers, Inc.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

Before the Court are plaintiff National Parks Conservation Association's ("NPCA's") Motion for Summary Judgment (17–cv–01361, ECF No. 68); plaintiffs National Trust for Historic Preservation in the United States' ("National Trust") and Association for the Preservation of Virginia Antiquities' ("Preservation Virginia") Motion for Summary Judgment (17–cv–01574, ECF No. 53); federal defendants' and defendant-intervenor Virginia Electric & Power Company's ("Dominion") Cross–Motions for Summary Judgment (filed in both cases); and all responses and replies thereto. Plaintiffs in both cases bring claims under the National Environmental Policy Act and Section 404 of the Clean Water Act. Plaintiffs National Trust and Preservation Virginia also allege a violation of the National Historic Preservation Act. Given the substantially similar nature of the cases, the Court will address all the above motions in this opinion. Upon careful consideration of the parties' filings, the administrative record, and the applicable law, the Court will DENY the plaintiffs' Motions for Summary Judgment and will GRANT federal defendants' and defendant intervenor's Cross–Motions for Summary Judgment in their entirety.

I. BACKGROUND

A. Statutory and Regulatory Framework

1. The National Environmental Policy Act

The National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. ,"establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and his environment,’ and was intended to reduce or eliminate environmental damage and to promote ‘the understanding of the ecological systems and natural resources important to’ the United States." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321 ). "[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The goal of NEPA is to "prohibit[ ] uninformed—rather than unwise—agency action." Id. at 351, 109 S.Ct. 1835. It "is an ‘essentially procedural’ statute intended to ensure ‘fully informed and well-considered’ decisionmaking, but not necessarily the best decision." New York v. Nuclear Regulatory Comm'n , 681 F.3d 471, 476 (D.C. Cir. 2012) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ). The Council on Environmental Quality ("CEQ") promulgates regulations that guide federal agencies' compliance with NEPA. 40 C.F.R. §§ 1500.1 – 1508.28.

At the heart of NEPA is the requirement that federal agencies prepare a detailed statement—an Environmental Impact Statement (EIS)—in connection with "proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C) (emphasis added). Among other requirements, an EIS must include an explanation of "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and "alternatives to the proposed action." 42 U.S.C. § 4332(C)(i)–(iii). The Supreme Court has highlighted that an EIS is meant to "ensure[ ] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts" and that "the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson , 490 U.S. at 349, 109 S.Ct. 1835.

If an agency is unsure if an EIS is required (i.e. it is unsure if the proposed project will have a significant effect on the human environment), it may prepare an Environmental Assessment ("EA") to assist in making that decision. 40 C.F.R. § 1501.3 – 4. The regulations define an EA as a "concise public document" in which the agency must "briefly" discuss "the environmental impacts" and "alternatives" to the proposed action. 40 C.F.R. § 1508.9. If the agency determines upon completing an EA that an EIS is not necessary, it must issue a Finding of No Significant Impact ("FONSI") in which it "briefly present[s] the reasons why an action ... will not have a significant effect on the human environment." 40 C.F.R. § 1508.13. At issue in this case is the Corps' FONSI determination and its decision not to prepare an EIS.

2. The Clean Water Act

The Clean Water Act ("CWA") was enacted "to restore and maintain chemical, physical, and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). The statute prohibits the "discharge of any pollutant by any person" except as authorized by the statute or by a permit granted by the Corps pursuant to Section 404 of the Act, by the Environmental Protection Agency ("EPA"), or by an authorized State. Id. § 1311(a); see also id. § 1344. The Environmental Protection Agency, together with the Corps, developed guidelines to implement the policies of the CWA and the Corps is required to follow these guidelines in deciding whether to issue a Section 404 permit. See 33 U.S.C. § 1344(b) ; 40 C.F.R. § 230.2.

In deciding whether to grant a permit pursuant to Section 404, the Corps must conduct a "Public Interest Review." 33 C.F.R. § 320.4(a). The Corps evaluates the "probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest." Id. at 320.4(a)(1). The Corps must carefully weigh the benefits of the proposed action against the "reasonably foreseeable detriments." Id. The guidelines list numerous factors for the Corps to consider, including conservation, economics, aesthetics, general environmental concerns, historic properties, navigation, recreation, energy needs, safety, and the needs and welfare of the people. Id. Unless the proposal is determined to "be contrary to the public interest," a permit will be granted. Id.

The Corps must also consider if there is a "practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem." 40 C.F.R. § 230.10(a). "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2).

3. National Historic Preservation Act

As explained by the D.C. Circuit, the purpose of the National Historic Preservation Act ("NHPA") is to "discourag[e] federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control." Lee v. Thornburgh , 877 F.2d 1053, 1056 (D.C. Cir. 1989). In service of this goal, Section 106 of the NHPA mandates that federal agencies "shall take into account the effect of the undertaking on any historic property" and must provide the Advisory Council on Historic Preservation ("ACHP") with an opportunity to comment on the undertaking. 54 U.S.C. § 306108. Regulations promulgated by the ACHP lay out a procedure for the federal agency to follow in order to comply with the NHPA. 36 C.F.R. §§ 800.3 – 800.6. The consultative process typically commences with an executed memorandum of agreement outlining "how the adverse effects will be resolved." Id. § 800.6(b)(iv).

Section 110 was added to the NHPA by Congress in 1980 and stipulates that before commencing a federal undertaking that may "directly and adversely affect" a National Historic Landmark, agencies shall take "shall to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to the landmark." 54 U.S.C. § 306107. At issue in this case is whether Section 110 applies and whether the Corps met its obligation under the statute.

B. Relevant Factual and Procedural Background

This dispute arises out of a planned electrical infrastructure project in Virginia, known as the Surry–Skiffes Creek–Whealton Project ("Project"). The Project consists of three components: (1) a new 500kV overhead transmission line across the James River from Surry to Skiffes Creek, (2) a new electrical switching station at Skiffes Creek, and (3) a new overhead transmission line from Skiffes Creek to Whealton. Defendants posit that the project is essential in order to improve the electrical infrastructure and provide reliable electric service to the Hampton Roads region of Virginia. Plaintiff's interest in this case lies in the first component of the project, the river crossing, which...