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National Parks Conservation Association v. Semonite

United States District Court, District of Columbia

May 23, 2018

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.


          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 intervener'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 (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 (1989). The goal of NEPA is to "prohibit[] uninformed-rather than unwise-agency action." Id. at 351. 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 (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.

         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 presents] 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. Plaintiffs interest in this case lies in the first component of the project, the river crossing, which involves approximately 7.92 miles of overhead transmission line. Approximately 4.11 miles of the line 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 across the James River. Four of the towers will stand up to 295 feet tall, with the remaining 14 standing approximately 189 feet above the water level.

         In early 2013, defendant-intervenor Dominion sought Corps approval for the Project. Dominion initially asked for approval under Nationwide Permit 12, which authorizes activities that cause minimal impact and would not require any individualized analysis under NEPA or the CWA. However, the Corps determined that a standard individual permit review was more appropriate and requested additional information on the Project from Dominion. After receiving additional information from Dominion on the contours of the Project and the need for electrical infrastructure in the region, the Corps issued a public notice in August 2013 initiating the permitting process and soliciting comments from the public, government agencies, and Native American tribes. The Notice indicated that "[a]ny comments received will be considered by the Corps [] to determine whether to issue, modify, condition or deny a permit for this proposal." AR0149954. It further noted that comments would be "used to assess impacts on endangered species, historic properties, water quality, general environmental effects, " and other factors in order to prepare an EA and/or EIS. Id. Finally, the Corps stated that a preliminary review indicated that an EIS would not be required, though additional information might change their assessment. 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. NPS, among others, believed that the impacts of the project would be significant and that an EIS was required.

         Following release of the initial public notice of the Project, the Corps undertook dual-track processes to evaluate the Project: (1) the consultation process required under Section 106 of the NHPA and a (2) NEPA process to determine the environmental impacts and feasible alternatives. Plaintiffs in these cases participated in the processes and provided the Corps with feedback and analysis throughout. At this point in the opinion, the Court will not detail each and every piece of feedback that the Corps received nor the measures that the Corps took to respond to the feedback. The Court will discuss the relevant details as necessary during its analysis.

         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 on their claims. In one action, plaintiff NPCA alleges violations of NEPA and the CWA. See 17-cv-1361. In the other action, plaintiffs National Trust for Historic Preservation in the United States and Association for the Preservation of Virginia Antiquities allege violations of NEPA, the NHPA, and the CWA. See 17-cv-1574. On September 20, 2017, the Court heard oral arguments on the Motions for Preliminary Injunction. The Court denied both motions, finding that the plaintiffs failed to establish a likelihood of irreparable harm prior to the cases being decided on the merits. The plaintiffs subsequently filed motions for summary judgment on their claims and defendants and defendant-intervenors filed cross-motions for summary judgment. The Court now considers those motions.


         Although plaintiffs, defendants, and the defendant-intervenor filed cross-motions for summary judgment, the standard set forth in Federal Rule of Civil Procedure 56-which requires the Court to grant summary judgment when there is "no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law"-does not apply to this case. See Stuttering Found. of Amer. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C.2007). Rather, the case is properly reviewed under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. Upon review of the administrative record, the Court may only "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

         Courts find agency actions arbitrary and capricious if the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997-98 (D.C. Cir. 2008); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43. "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Id. Courts examine whether the agency engaged in "reasoned analysis." Id. at 57. An agency has engaged in "reasoned analysis" if the record demonstrates that "it examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Id. at 43.

         As to the plaintiffs' NEP A claims, the Court will consider only whether the Corps followed the procedural requirements set out by the statute in preparing the EA and issuing a FONSI for the Project, and not whether the Corps reached the right substantive result in deciding to grant the permit. The D.C. Circuit has highlighted that "because the statute directs agencies only to look hard at the environmental effects of their decisions, and not to take one type of action or another, federal judges [must] correspondingly enforce the statute by ensuring that agencies comply with NEPA's procedures, and not by trying to coax agency decisionmakers to reach certain results." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (citing Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98(1983).

         III. ANALYSIS

         A. The Corps' Compliance with NEPA

         Plaintiffs in both cases before the Court challenge the Corps' actions under NEPA and raise an array of arguments in support of their claims. For the sake of clarity, the Court buckets the plaintiffs' arguments into three main categories: (1) that the Corps erred in deciding to issue a FONSI and not an EIS; (2) that the Corps failed to adequately analyze less impactful feasible alternatives; and (3) that the Corps failed to provide the opportunity for public comment or meaningful involvement in the NEPA process. The Court will address each set of arguments in turn and find that the Corps complied with its NEPA obligation. Although at the preliminary injunction phase of this case the Court noted that the plaintiffs made a powerful argument on the merits, [1] now that the Court has dug in to the administrative record and relevant case law it is evident that the Corps made a "fully informed and well-considered" decision. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978). It is not the Court's role to overturn agency action in this context simply because it might have reached a different outcome on the substantive issue. Id.

         1. Decision to Issue a FONSI and Forego an EIS

         As the Court set out above, an EIS is only required when a major federal action will "significantly affect" the quality of the human environment. The D.C. Circuit recently reiterated that a court's role in "reviewing an agency's decision not to prepare an EIS is a limited one, designed primarily to ensure that no arguably significant consequences have been ignored." Mayo v. Reynolds, 875 F.3d 11, 20 (D.C. Cir. 2017). Courts in this Circuit apply a four-factor test when reviewing whether an agency properly issued a FONSI. Court's assess whether the agency:

(1) has accurately identified the relevant environmental concern, (2) has taken a hard look at the problem in preparing its [FONSI or Environmental Assessment], (3) is able to make a convincing case for its finding of no significant impact, and (4) has shown that even if there is an impact of true significance, an EIS is unnecessary because changes or safeguards in the project sufficiently reduce the impact to a minimum.

Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011). The D.C. Circuit makes clear that although the phrase "convincing case" (found in factor three above) has appeared in the case law, the scope of review is the usual one for reviewing administrative action-"arbitrary, capricious, or an abuse of discretion." Id.

         In order to satisfy the "hard look" requirement, the agency must ensure that the "adverse environmental effects of the proposed action are adequately identified and evaluated." Robertson, 490 U.S. at 350. The regulations issued by the Council on Environmental Quality further elucidate how to evaluate whether the proposed project will significantly impact the human environment. The Council explains that "[s]ignificantly as used in NEPA requires considerations of both context and intensity." 40 C.F.R. § 1508.27. "Context" refers to the fact that the action must be "analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality." Id. . § 1508.27(b). And "intensity" refers "to the severity of impact." Id. The regulations then proceed to identify the following ten "significance factors" that should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

Id. § 1508.27(b).

         i. Significance Factors

         Plaintiffs contend that the record makes clear that several of the CEQ significance factors are implicated in this case, demonstrating that the Corps failed to take a hard look at the problem and failed to make a convincing case of no significant imapct. As a threshold matter, the parties disagree as to whether a Court must order an EIS if only one of the significance factors is determined to be present. Plaintiffs suggest that the "existence of even a single significance factor requires preparation of an EIS." 17-cv-1361, ECF No. 68-1 at 25 (citing Fund for Animals v. Norton,281 F.Supp.2d 209, 218-19 (D.D.C. 2003) ("[T]he presence of one or more of these factors should result in an agency decision to prepare an EIS."); Humane Soc 'y v. Johanns,520 F.Supp.2d 8, 20 (D.D.C. 2007) (same); Ark Initiative v. Tidwell, 64 F.Supp.3d. 81, 99 (D.D.C. 2014) (same)). Defendants respond that the implication of a single significance factor does not require an EIS and that the factors are not to be interpreted as categorical rules; rather "the agency must consider the potential significance of the effects of its action in light of the intensity of each factor." 17-cv-1361, ECF No. 76-1 at 37 (citing Van Antwerp, 661 F.3d at 1154-55 (affirming decision by Corps not to prepare EIS based on evaluation of relevant significance factors); see also Advocates For Transp. Alternatives, Inc. v. U.S. Army Corps of Eng'rs,453 F.Supp.2d 289, 301-08 (D. Mass. 2006) (affirming Corps' ...

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