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National Parks Conservation Association v. Semonite

United States District Court, District of Columbia

October 20, 2017

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 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.

          MEMORANDUM OPINION

          HONORABLE ROYCE LAMBERTH UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         This 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.

         In 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 ("CEQ").

         In May 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 conditions).

         Plaintiffs, 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 these motions.

         II. LEGAL STANDARD

         In 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).

         Preliminary 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 quotations removed).

         Prior 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).

         III. DISCUSSION

         Plaintiffs 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.

         The 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.[1] 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 ...


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