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National Parks Conservation Association v. Semonite

United States District Court, District of Columbia

November 8, 2019

NATIONAL PARKS CONSERVATION ASSOCIATION Plaintiff,
v.
TODD T. SEMONITE et al., Defendants, and VIRGINIA ELECTRIC & POWER COMPANY, Defendant-Intervenor. NATIONAL TRUST FOR HISTORIC PRESERVATION INTHE UNITED STATES AND ASSOCIATION EOR THE PRESERVATION OF VIRGINIA ANTIQUITIES, PLAINTIFFS
v.
TODD T. SEMONITE EL AL., DEFENDANTS, and VIRGINIA ELECTRIC & POWER COMPANY

          MEMORANDUM OPINION

          Royce C. Lamberth United States District Court Judge.

         On March 1, 2019, the D.C. Circuit determined that the U.S. Army Corps of Engineers ("Corps") violated the National Environmental Policy Act ("NEPA") by failing to complete an Environmental Impact Study ("EIS") before issuing a permit to the Virginia Electric and Power Company ("Dominion") to construct the Surry-Skiffes Creek-Whealton project ("the project"). The D.C. Circuit, however, was unaware that the project was completed shortly before they issued their opinion.[1] Upon learning of the project's completion shortly thereafter, the D.C. Circuit remanded the case to this Court to determine the appropriate remedy.

         Before turning to the ultimate question of whether vacatur is proper, two threshold questions must be addressed: (1) whether defendants waived or forfeited the right to contest that vacatur is the appropriate remedy; and (2) whether defendants are judicially estopped from contesting that vacatur is the appropriate remedy. For the reasons set forth below, this Court finds that waiver, forfeiture, and judicial estoppel are all inapplicable here. Furthermore, the Court finds that vacatur of the permit is not appropriate in this case. The Court will therefore remand to the Corps without vacatur but with instructions to complete an EIS in accordance with the D.C. Circuit's ruling.[2]

         WAIVER & FORFEITURE

         Waiver of a right is distinct from forfeiture of a right. Waiver is the "intentional relinquishment or abandonment of a known right or privilege." United States v. Olano, 507 U.S. 725, 733 (1993). In contrast, forfeiture is the "failure to make the timely assertion of a right." Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017). Nothing in the record supports the notion that defendants ever "intentional[ly] relinquish[ed] or abandon[ed] ... a known right or privilege," and therefore only the forfeiture issue will be addressed further. Olano, 507 U.S. at 733.

         Plaintiffs are correct that defendants' appellate brief contained only one reference to their desired remedy-remand without vacatur-in the event that they lost on the merits. Plaintiffs also stress the fact that this one reference was in the briefs conclusion, and they cite Bryant v. Gates in arguing that an issue is waived or forfeited when a party's argument on an issue consists of only a single, conclusory statement. 532 F.3d 888, 898 (D.C. Cir. 2008) (holding in part that an as-applied First Amendment Free Speech challenge was "doubly forfeit" when not raised in the district court and when included in the appellate brief only as a "single, conclusory statement"). "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work." Schneider v. Kissinger, 412 F.3d 190, 200 n.l (D.C. Cir. 2005) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

         Although plaintiffs cite numerous cases to support their forfeiture arguments, those cases all involved the forfeiture of a merits issue rather than forfeiture of a remedy issue.[3] The question -of whether the Corps needed to conduct an EIS (the merits issue) is separate from the question of whether vacatur is appropriate in this situation (the remedy issue). In Honeywell Intern., Inc. v. EPA, the concurring opinion explained that the merits of a case and the appropriate remedy are different issues that should be treated separately. See 374 F.3d 1363, 1375 (D.C. Cir. 2004) (Randolph, J., concurring). Questions of remedy are commonly reserved for post-decision motions, and "[i]t is quite rare for the parties even to mention the question of remedy in their merits briefs." Id. at 1375. Although plaintiffs argue that the Honeywell concurrence turns in their favor because Judge Randolph also wrote that "vacating (or reversing) and remanding unlawful agency action, rather than simply remanding, should always be the preferred course," that phrase is relevant to the ultimate issue of whether vacatur is proper here, not to whether defendants forfeited their right to contest vacatur. Id. at 1374-75. Because the question of whether an EIS was required is separate from the question of whether vacatur is warranted, defendants did not forfeit their right to contest that vacatur is the appropriate remedy when they omitted those arguments from their appellate brief. Essentially, it is standard practice on appeal to wait until after a decision on the merits to raise arguments regarding the proper remedy, which is precisely what defendants did here.

         Even if defendants had forfeited their right to contest vacatur, this Court would still have the authority to consider the appropriateness of vacatur if "injustice might otherwise result." Singleton v. Wulff, 428 U.S. 106, 121 (1976); see Hormel v. Helvering, 312 U.S. 552, 557 (1941). Due to the project's importance as a power source in the region and the amount of money at stake, it would be unjust not to reach the ultimate question of whether vacatur is the appropriate remedy in this case. Regardless of what defendants did or did not argue on appeal,, the hundreds of thousands of people whose power source could be impacted .by this decision are not responsible for what defendants included in their appellate briefs, yet they are the ones who would be directly affected if the Court failed to reach the remedy issue in this case. Therefore, even if defendants had waived or forfeited their remedy argument, the Court would still exercise its discretion to reach the question of whether vacatur is appropriate in this instance.

         JUDICIAL ESTOPPEL

         Judicial estoppel is an equitable doctrine that precludes a party from "adopting a legal position in conflict with one earlier taken in the same or related litigation" in order to "protect the integrity of the judicial process." New Hampshire v. Maine, 532 U.S. 742, 749 (2001). When determining whether judicial estoppel applies, courts generally consider three factors: (1) whether a party's later position is clearly inconsistent with their earlier position; (2) whether judicial acceptance of an inconsistent position in a later proceeding would create the perception that the court was misled; and (3) whether the party asserting the inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51.

         Beginning with the first factor, defendants have not taken "clearly inconsistent" positions throughout this litigation. At the preliminary injunction stage, defendants argued that there would be no irreparable harm without a preliminary injunction because the court could later order the towers torn down if plaintiffs prevailed on the merits. Plaintiffs have since prevailed on the merits, and defendants are now within their rights to argue against vacatur as the appropriate remedy. Defendants said that the court could order vacatur if plaintiffs prevailed on the merits, not that the court must order vacatur if plaintiffs prevailed on the merits. For example, defendants stated at the preliminary injunction stage, "[I]f necessary ... any visible infrastructure could be removed and the existing views thus fully restored." Dominion's Mem. in Opp. to Plaintiffs Motion for Preliminary Inj. at 38, National Trust ECF No. 22.[4] They also acknowledged that "[t]he D.C. Circuit has made clear that courts have the authority to order removal of completed infrastructure projects upon finding violations of the National Environmental Policy Act... if equity so requires." Dominion's Mem. in Opp. to Plaintiffs Emergency Motion for an Inj. Pending Appeal at 3, NPCA ECF No. 114. Similarly, defendants noted that if plaintiffs prevailed on the merits, Dominion would likely "have no choice but to remove the towers ... absent express authority from a court or otherwise" because it "would be within the Court's authority to order Dominion to take down the towers." Id. at 10. Even when there is ambiguity about whether a clear inconsistency exists, courts should "assum[e] there is no disabling inconsistency, so that the second matter may be resolved on the merits." Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir. 2010) (quoting 18B Charles Alan Wright, Arthur Miller & Edward H. Cooper, Federal Practice and Procedure § 4477, at 594 (2d ed. 2002)). It is thus presumed that judicial estoppel does not apply unless the opposing party can show that it should, which plaintiffs have not been able to do.

         Even the briefs that defendants submitted to this Court after the D.C. Circuit remanded the case are not clearly inconsistent with their previous contention that the court could order vacatur. Although defendants argue that vacatur is unwarranted here, at no point do they claim that this Court must not order vacatur or that this Court is without the power to order vacatur- they merely try to persuade the Court to exercise its vast discretion in their favor. The difference between could and must is paramount, as that distinction is what prevents this Court from finding. a "clear inconsistency" under the first factor of the test. New Hampshire, 532 U.S. at 750-51.

         Turning to the second factor, plaintiffs overstate what constitutes the perception that the court was misled. Plaintiffs contend that the mere perception, absent evidence of malintent, is sufficient to warrant the application of judicial estoppel. That is simply not true. The Supreme Court specifically stated that judicial estoppel should not be applied "when a party's prior position was based on inadvertence or mistake." Id. at 753. Likewise, the D.C. Circuit has explained that estoppel is about preventing "cold manipulation" rather than "unthinking or confused blunder." Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980).

         More importantly, however, the second factor is not met because this Court was not actually misled, and "[i]t follows that judicial estoppel should not be applied if no judicial body has been led astray." Id. This Court certainly never took defendants' argument that the court could later order vacatur to mean that this Court would be required to order vacatur. It has always been understood that although vacatur is the standard remedy, there would still be discretion not to order vacatur. The Court certainly never expected Dominion to stop building the towers when plaintiffs' preliminary injunction was denied, as that would have essentially amounted to a self-imposed injunction. The Court recognized the possibility of the towers being completed while this litigation was still pending, yet both this Court and the D.C. Circuit denied the preliminary injunction. This Court also understood that if plaintiffs prevailed on the merits, the project's status would be considered under the second Allied-Signal factor when deciding whether to order vacatur. Although the D.C. Circuit expressed concerns about defendants' arguments, it is unlikely that they were misled either, as the D.C, Circuit undoubtedly understood when ruling on the ...


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