Nat'l Parks Conservation Ass'n v. Semonite

• Citation: 916 F.3d 1075
• Decision Date: 01 March 2019
• Docket Number: No. 18-5179,C/w 18-5186,18-5179
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, Appellant v. Todd T. SEMONITE, Lieutenant General, et al., Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

916 F.3d 1075

NATIONAL PARKS CONSERVATION ASSOCIATION, Appellant

v.Todd T. SEMONITE, Lieutenant General, et al., Appellees

No. 18-5179

C/w 18-5186

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 2018

Decided March 1, 2019

Matthew G. Adams, San Francisco, CA, argued the cause and filed the briefs for appellants National Trust for Historic Preservation, et al.

William S. Eubanks II, Washington, DC, argued the cause for appellant National Parks Conservation Association. With him on the briefs was Eric R. Glitzenstein.

J. Blanding Holman, Charleston, SC, was on the brief for amici curiae The Lawyer's Committee for Cultural Heritage Preservation, et al. in support of appellant.

Tyler Joseph Sniff, Atlanta, GA, was on the brief for amici curiae 18th Director of the National Park Service Jonathan B. Jarvis, et al. in support of appellant National Parks Conservation Association.

Dustin J. Maghamfar, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, Eric A. Grant, Deputy Assistant Attorney General, and Andrew C. Mergen, Mark R. Haag, and Heather E. Gange, Attorneys.

Elbert Lin, Richmond, VA, argued the cause for appellee Virginia Electric and Power Company. With him on the brief were Eric J. Murdock, Washington, DC, Harry M. Johnson, III, and Timothy L. McHugh, Richmond, VA.

Michael J. Thompson and Brett K. White, Washington, DC, were on the brief for amici curiae PJM Interconnection, L.L.C. in support of appellees.

Before: Garland, Chief Judge, and Tatel and Millett, Circuit Judges.

Tatel, Circuit Judge:

In order to "create and maintain conditions under which man and nature can exist in productive harmony," the National Environmental Protection Act (NEPA), 42 U.S.C. § 4331(a), requires any federal agency issuing a construction permit, opening new lands to drilling, or undertaking any other "major" project to take a hard look at the project's environmental consequences, id. § 4332(2)(C), including the impacts it may have on "important historic ... aspects of our national heritage," id. § 4331(b). To this end, the agency must develop an environmental impact statement (EIS) that identifies and rigorously appraises the project's environmental effects, unless it finds that the project will have "no significant impact." 40 C.F.R. § 1508.9(a)(1). And that is what happened here. The U.S. Army Corps of Engineers ("Corps") granted a permit allowing a utility company to build a series of electrical transmission towers across the historic James River, from whose waters Captain John Smith explored the New World, and it did so without preparing an EIS because it found that the project would have "no significant impact" on the historic treasures along the river. As explained below, however, the Corps's "no significant impact" finding was arbitrary and capricious: important questions about both the Corps's chosen methodology and the scope of the project's impact remain unanswered, and federal and state agencies with relevant expertise harbor serious misgivings about locating a project of this magnitude in a region of such singular importance to the nation's history. Accordingly, we reverse the district court's decision to the contrary and remand with instructions to vacate the permit and direct the Corps to prepare an environmental impact statement.

I.

Over 400 years ago, Captain John Smith arrived on the shores of what is now known as the Chesapeake Bay. Keen on learning more about the unfamiliar land, Captain Smith voyaged up the winding James River, passing through lush forests and under open skies. During his voyages, Smith produced "maps and writings [that] influenced exploration and settlement in the New World for over a century." 152 Cong. Rec. 22,282 (2006) (statement of Rep. Davis). These journeys came to symbolize our nation's founding and to serve as an equally important reminder of one of the darkest episodes in our history—the settlers' devastation of Native American populations, including the "eventual collapse of the Powhatan polity." John S. Salmon, Project Historian, National Park Service, Captain John Smith Chesapeake National Historic Water Trail Statement of National Significance 2 (2006).

Long after Smith's voyages, the river "serv[ed] as a strategic transportation corridor that shaped the settlement and commerce of the region." H.R. Res. 16, 110th Cong. preamble (2007). Indeed, "the economic, political, religious, and social institutions that developed during the first [nine] decades" of the corridor's settlement "have profound effects on the United States" to this day. Jamestown 400th Commemoration Commission Act of 2000, Pub. L. No. 106-565, § 2(a)(3), 114 Stat. 2812, 2812. The same region commanded center stage through the nation's infancy, bearing witness to "the British surrender that marked the end of the American Revolution." Colonial National Historical Park Amendments, S. Rep. No. 104-30, at 2 (1995).

Honoring these ties to our nation's past, Congress and several federal agencies have established a series of "historic resources" in and around the Chesapeake Bay, including Jamestown, Carter's Grove National Historic Landmark, and the Captain John Smith National Historic Trail ("Historic Trail"), the nation's only congressionally-protected water trail. Due to the James River's "extraordinary historic, economic, recreational, and environmental importance," Congress recognizes it as " ‘America's Founding River.’ " H.R. Res. 16 §§ 1, 2. According to one representative, Congress "[d]esignat[ed] this [H]istoric [T]rail ... to spur efforts to protect and restore the region's historic and environmental assets." 152 Cong. Rec. 22,283 (2006) (statement of Rep. Castle). Other members of Congress observed that the region "represents a lasting tribute to the American spirit of discovery and exploration," id. at 22,282 (statement of Rep. Davis), affording visitors "the opportunity to marvel at some of the same sites that Captain Smith and his crew beheld 400 years ago," id. at 22,283 (statement of Rep. Hoyer).

The National Park Service, an agency of the Department of the Interior, pursuant to its obligation "to conserve the scenery [and] natural and historic objects" of our national parks, 54 U.S.C. § 100101(a), acts as steward of these resources, striving to "offer[ ] visitors an opportunity to vicariously share the experience of Smith and his crew" through views "evocative of the seventeenth century," Park Service, A Conservation Strategy for the Captain John Smith Chesapeake National Historic Trail Introduction 3 (2013). To this end, and in accordance with its conservation "management plan" for the Historic Trail, the Service seeks to "[m]aximize the visual and historical integrity of the visitor experience" by, among other things, ensuring that all new utility lines are underground. Park Service, General Management Plan: Colonial National Historical Park 19, 34 (1993) ("Management Plan").

Enter the demands of modernity. Although the approximately fifty-mile leg of the James River involved in this case has retained its seventeenth-century charm, the rest of Virginia has kept apace with modern development, which means it depends on electricity. Following the 2012 issuance of an Environmental Protection Agency rule requiring power generation facilities to reduce certain air pollutant emissions, see 77 Fed. Reg. 9304 (Feb. 16, 2012), Virginia Electric and Power Company ("Dominion") determined that, in order to comply with the rule, it would have to retire two coal-fired power generators. To compensate for the resulting electricity shortfall, Dominion applied in 2013 to the Corps, which has jurisdiction over certain projects concerning "waters of the United States," see 33 C.F.R. § 328.1 (internal quotation marks omitted), for a permit to construct a new electrical switching station and two transmission lines. Supported by seventeen 250-or-so-foot steel-lattice transmission towers, the line at issue here would stretch for eight miles, four of which would cross the James River and cut through the middle of the historic district encompassing Jamestown and other historic resources. See Figure 1.

Figure 1: Overview Map of Project and Historic Properties (created by Industrial Economics, Inc.), Joint Appendix (J.A.) 495

Before it could greenlight the undertaking, known as the Surry-Skiffes Creek-Whealton project ("Project"), the Corps had to satisfy several statutory obligations. First, as relevant here, NEPA required the Corps to consider alternatives to the Project and to prepare an "environmental impact statement" if the Project would "significantly affect[ ] the quality of the human environment," 42 U.S.C. § 4332(2)(C) —an analysis which must take into account effects on historic resources, 40 C.F.R. § 1508.8. But the Corps could bypass preparation of an EIS if, based on a preliminary "environmental assessment," it determined that the Project would have "no significant impact" on the environment. 40 C.F.R. § 1508.9. Second, the Clean Water Act required the Corps to determine that no "practicable alternative" existed that "would have less adverse effect on the aquatic ecosystem." Id. § 230.12(a)(3)(i). Third, the National Historic Preservation Act ("Preservation Act") required the Corps to "take into account the effect of the undertaking on any historic property," 54 U.S.C. § 306108, and, if the project might "directly and adversely affect any National Historic Landmark," to take steps "to minimize harm to the landmark," id. § 306107.

Pursuant to these obligations, the Corps studied the Project's environmental impacts and considered nearly thirty alternatives. In doing so, the Corps relied on a Cultural Resources Effects Assessment prepared by Dominion and its consultants, which included a series of photo simulations that superimposed mockups of the proposed towers over the existing landscape. In its...