United States District Court, District of Columbia
HONORABLE ROYCE LAMBERTH UNITED STATES DISTRICT JUDGE.
the Court are plaintiff National Parks Conservation
Association's Motion for Preliminary Injunction
(17-cv-01361, ECF No. 5); plaintiffs National Trust for
Historic Preservation in the United States' and
Association for the Preservation of Virginia Antiquities'
Motion for Preliminary Injunction (17-cv-01574, ECF No. 22)
(collectively, "Motions for Preliminary
Injunction"); and all responses and replies thereto.
Given the substantially similar nature of the cases, the
Court will address both motions in this opinion. For the
reasons given below, the Court will DENY the
Motions for Preliminary Injunction.
dispute arises out of a planned electrical infrastructure
project, known as the Surry-Skiffes Creek-Whealton Project
("Project"), which defendants contend is necessary
to provide reliable electric service to the region. The
Project consists of three components: (1) a new 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. The river-crossing component of
the Project will cross the James River through and in close
proximity to numerous historically significant sites dating
back to the birth of our Nation: the Captain John Smith
Trail, the Jamestown-Hog Island-Captain John Smith Trail
Historic District, Jamestown Island, the Colonial Parkway,
Colonial National Historical Park, and Carter's Grove
National Historic Landmark. The river crossing will entail
the construction of seventeen towers, up to 295 feet tall,
across the James River.
early 2013, defendant-intervenor Virginia Electric and Power
Company ("Dominion") sought approval for the
Project from the U.S. Army Corps of Engineers
("Corps"). In August 2013, the Corps issued a
public notice initiating the Project permitting process,
solicited comments from the public and government agencies,
and noted that a preliminary review indicated that an
Environmental Impact Survey ("EIS")-required under
the National Environmental Policy Act ("NEPA") for
projects that significantly impact the environment-would not
be required. In response to the notice, the Corps received
comments expressing concern with the Project's proximity
to historic sites-including from the National Parks Service
("NPS"), a sister government agency. From
2014-2017, the Corps engaged in the consultation process
required under Section 106 of the National Historic
Preservation Act ("NHPA") and continued to receive
expressions of concern regarding the impact of the Project
and the need for an EIS from various stakeholders, including
from NPS and the White House Council on Environmental Quality
2017, the Corps; Dominion; and the Acting Assistant Secretary
of Interior for Fish, Wildlife, and Parks (on behalf of NPS),
among other parties, signed a Memorandum of Agreement
("MO A"). The MO A, developed through the Section
106 consultation process, contained stipulations to avoid,
minimize, and mitigate adverse impacts to the historical
sites in proximity to the proposed Project. In June 2017, the
Corps signed and released a document entitled Memorandum for
the Record ("MFR"). The MFR, a 111-page document,
includes an Environmental Assessment ("EA") and a
Finding of No Significant Impact ("FONSI") as
required under NEPA, and a Section 404 Statement of Findings
as required under the Clean Water Act ("CWA"). And
on July 3, 2017, the Corps issued the permit to Dominion
authorizing the portions of the Project under Corps
jurisdiction, subject to compliance with the MOA (among other
all non-profit organizations, subsequently brought suit in
this Court and moved for preliminary injunctions. Plaintiffs
National Trust for Historic Preservation in the United States
and Association for the Preservation of Virginia Antiquities
allege violations of NEPA, the NHPA, the CWA, and the Rivers
and Harbors Act ("RHA") and request that the court
enjoin only the river crossing component of the Project.
Plaintiff National Parks Conservation Association alleges
violations of NEPA and the NHPA and moves that the court
enjoin implementation of the Corps' permit to Dominion.
On September 20, 2017, the Court heard oral arguments on the
Motions for Preliminary Injunction. The Court now considers
order to obtain a preliminary injunction, plaintiffs must
satisfy the following four elements: (1) likelihood of
success on the merits; (2) likelihood that they will suffer
irreparable harm in the absence of the preliminary
injunction; (3) that the balance of equities tips in their
favor; and (4) that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008).
injunctive relief is an extraordinary form of judicial relief
and is "never awarded as of right, " but only
"upon a clear showing that the plaintiff is entitled to
such relief." Id. at 22, 24; Sherley v.
Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Plaintiffs
must "demonstrate that irreparable injury is
likely in the absence of an injunction."
Winter, 555 U.S. at 22. The Court of Appeals
"has set a high standard for irreparable injury."
Chaplaincy of Full Gospel Churches v. Engalnd, 454
F.3d 290, 297 (D.C. Cir. 2006). The injury "must be both
certain and great; it must be actual and not
theoretical." Id. (citing Wise. Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir.1985) (per curiam)).
Plaintiffs must demonstrate that the injury is "of such
imminence that there is a clear and present need for
equitable relief to prevent irreparable harm."
Id. (internal quotations removed). Moreover, the
injury "must be beyond remediation" and
"[m]ere injuries, however substantial, in terms of
money, time and energy necessarily expended in the absence of
a stay are not enough." Id. (internal
to the Supreme Court's ruling in Winter, a
number of circuits, including the D.C. Circuit, evaluated the
four factors using a "sliding scale"
approach-allowing a strong showing on one of the factors to
make up for a weaker showing on another factor.
Sherley, 644 F.3d at 392. The D.C. Circuit has yet
to clarify whether Winter explicitly precludes the
use of a "sliding scale" approach. Id. at
393. But, the outcome of this case would not change even if
analyzed under a "sliding scale" approach. The
Court finds that the plaintiffs have not established a
likelihood of any irreparable harm and "failure to show
any irreparable harm is  grounds for refusing to issue a
preliminary injunction, even if the other three factors
entering the calculus merit such relief."
Chaplaincy 454 F.3d. at 297. The Court, therefore,
need not consider the other three factors of the preliminary
injunction test, even though the plaintiffs have made a
powerful argument on the merits. GEO Specialty Chem.,
Inc. v. Husisian, 923 F.Supp.2d 143, 147 (D.D.C. 2013).
put forward a number of arguments alleging they will suffer
irreparable harm in the absence of a preliminary injunction.
First off, both sets of plaintiffs point to harm to their
recreational and aesthetic interests should Dominion
construct the electrical towers across the River.
See 17-cv-01361, ECF No. 5-1 at 42-43; 17-cv-01574,
ECF No. 22-1 at 33. At the heart of their allegations is the
claim that the electrical line and the seventeen towers
across the river will negatively affect viewsheds in the area
and irreparably harm their overall enjoyment of the
nationally important region. For example, a declarant for
plaintiff National Parks Conservation Association explains
that "[t]he intrusion of mammoth towers of modernity
will instantly and forever after alter the space, the peace,
and the reflection of this place in history" and that
her experience "will forever be diminished" and
"permanently tarnished by this intrusion on an
unparalleled landscape." 17-cv-01361, ECF No. 5-1 at
42-43. Plaintiffs National Trust for Historic Preservation in
the United States and Association for the Preservation of
Virginia Antiquities note that their "members currently
use this area for recreational and aesthetic purposes"
and those "uses would be compromised by the River
Crossing." 17-cv-01574, ECF No. 22-1 at 33.
Court is not persuaded that those alleged injuries are
irreparable at this stage of the litigation. The alleged
injuries are not "of such imminence that there
is a clear and present need for equitable relief to prevent
irreparable harm." Chaplaincy 454 F.3d. at 297.
Dominion has indicated that it does not plan to begin
construction on the tower structures across the river until
at least April 2018. 17-cv-01361, ECF No. 22 at 38. The first
stage of the Project-scheduled to commence this
month-involves constructing the underwater foundations which
will extend seven feet above the water. Id.
Therefore, the source of the plaintiffs alleged irreparable
harm- "mammoth towers"-won't begin to be built
for at least another six months, leaving the parties'
ample time to fully brief the merits of the case. The
standard is not that irreparable harm will occur at some
point in the future, but that plaintiffs suffer irreparable
harm before a decision on the merits can be
reached. As our Court has noted, "it is well
established that 'perhaps the single most important
prerequisite for the issuance of a preliminary injunction is
a demonstration that if it is not granted the applicant is
likely to suffer irreparable harm before a ...