A federal appeals court has decided to let a lower court determine whether the key permit underpinning Dominion Energy’s controversial James River transmission line should be overturned, which leaves the already-completed $400 million project in legal limbo.
On May 31, the U.S. Court of Appeals for the District of Columbia turned down petitions by Dominion and the U.S. Army Corps of Engineers to reconsider its earlier ruling to vacate a permit for the project previously issued by the corps.
Yet when offered a chance to reaffirm its earlier view, the court hesitated. Instead, it kicked the question of whether vacation — formally called vacatur — “remains the appropriate remedy” back to the U.S. District Court for the District of Columbia.
By doing so, said Cale Jaffe, director of the Environmental and Regulatory Law Clinic at the University of Virginia and the author of a 2017 amicus brief on behalf of the Mattaponi tribe opposing the Surry-Skiffes Creek transmission line, the appeals court has indicated that Dominion and the Army Corps “have an uphill battle, but certainly not an insurmountable battle.”
Still, he said, “if it were purely insurmountable, the court of appeals would simply have said the permit is vacated, just like they did back in March. But they didn’t go quite that far.”
The uncertainty about what the ruling means for the project was evident in the reactions of the parties involved, who all cast the decision as a victory.
The National Parks Conservation Association, which has spearheaded legal action against the line, called it a “positive step.” The National Trust for Historic Preservation declared that “the court’s decision underlines once again the historic significance of the James River.” And Jamie Brunkow, the James riverkeeper and an advocacy manager for the James River Association, described the ruling as “generally positive news.”
At the same time, a Dominion spokeswoman told the Virginia Gazette on May 31 that the company was “pleased” with the appeals court’s decision to send the case back to the district court.
“Keeping the transmission line energized while the environmental impact statement is prepared is the responsible thing to do,” Bonita Harris said.
Dominion spokesman Jeremy Slayton refused a request for comment from the Virginia Mercury.
‘The egg has now been scrambled’
The eight-mile transmission line, which stretches between Surry and Skiffes Creek near Jamestown, crosses four miles of the James River and spans 17 towers, some of them 250 feet tall.
Dominion first applied for a permit for the project from the corps in 2013 to resolve power reliability problems in 14 counties and seven cities on the Lower and Middle Peninsulas and Northern Neck, including Newport News and Hampton.
Two of the utility’s coal-fired units at Yorktown Power Station were facing closure due to their inability to meet new air emissions standards, a move that threatened the reliability of the electrical grid, the company said. The U.S. Department of Energy was sufficiently concerned that, beginning in June 2017, it issued seven emergency orders allowing the Yorktown units to operate despite not complying with emissions regulations.
Dominion’s solution, however, sparked fierce resistance.
Environmental and historic preservation groups, as well as some federal agencies, repeatedly aired concerns about the siting of the line and the effect it would have on the viewshed of what the U.S. House of Representatives in 2007 designated “America’s Founding River.” Most concerning to many was the irreparable harm they argued the line would cause to numerous historic and environmental resources of national importance, including Historic Jamestowne, Carter’s Grove and the Capt. John Smith National Historic Trail.
Ultimately, the debate centered on the corps’ decision to not prepare an environmental impact statement for the project. Under the National Environmental Policy Act, an EIS is required “if a proposed major federal action is determined to significantly affect the quality of the human environment.” Despite pushback, the corps steadfastly maintained that the line would have “no significant impact” on the environment.
In March, the U.S. Court of Appeals for the District of Columbia sided with the opposition. Finding that the corps’ review process had been “arbitrary and capricious,” the court ordered that the permit be vacated and directed the corps to prepare the EIS.
Dominion and the corps swiftly petitioned for reconsideration of that decision. Court documents show that they feared it would require tearing down the line, which had gone into operation Feb. 26, five days before the appeals court yanked its permit.
Instead, they argued that the courts should look to a different solution: remand without vacatur. Under that ruling, the court can determine that an agency’s action was “arbitrary and capricious” but stop short of ordering that it be undone, usually because doing so would be unnecessarily disruptive. That would mean the Surry-Skiffes Creek transmission line could remain standing.
Both Dominion and the corps pointed to the second part of the appeals court’s March order: the preparation of the environmental impact statement. It wasn’t a foregone conclusion, they maintained, that when this statement was complete, it would conclude that the line should have been built elsewhere. In fact, it might arrive at the same conclusion that the corps had when it declared the project would have “no significant impact” and that the best location for the line is exactly where it is.
In that case, Dominion contended, “years of time and over $400 million would be wasted, to say nothing of the needless additional environmental impacts associated with taking down and then, possibly, reconstructing the line.”
Furthermore, the corps argued, “the egg has now been scrambled. At this point, vacating the permit authorizing construction of the towers and line would not preserve the status quo prior to construction, which no longer exists.”
‘More than a little troubling’
Dominion and the corps’ contention that removal of the 17-tower line would be “highly disruptive” drew a sharp rebuke from the U.S. Court of Appeals, which called their arguments “more than a little troubling.”
That statement, said William Eubanks, an attorney for the National Parks Conservation Association, one of the project’s main legal challengers, is “some of the strongest language I’ve ever seen in a federal court opinion.”
The criticism focuses on the apparent reversal by Dominion and the corps of their legal stance. When the conservation groups sought an injunction to stop the building of the towers from going forward in 2018, Dominion argued that construction should not be stopped, because if the permit was vacated, “the towers can be removed, and preexisting views restored completely.”
Now, however, the appeals court noted, the utility and the corps are arguing the opposite: because the line has already been constructed, it would be unnecessarily disruptive to take it down, even if the permit for it should not have been issued without an environmental impact statement.
“It would be very odd for a permittee to be able to effectively insulate their permit from legal challenge by building the project while the permit is under legal review,” said Blan Holman, an attorney with the Southern Environmental Law Center. (Holman also penned an amicus brief on behalf of the National Trust for Historic Preservation and the Association for the Preservation of Virginia Antiquities in opposition to the transmission line.)
It would also, said Jaffe, in cases where permits have been challenged, “provide an incentive for the regulated industry to hurry up and finish a project, because it’s much harder to remove a finished project than it is to prevent it from being constructed in the first place.”
Examples of courts ordering utility-scale infrastructure to be torn down are few, but they do exist. In April 2008, a court of appeals in Missouri ordered the dismantling of a power plant after it was constructed without county zoning approval, but the facility was eventually allowed to remain after the company offered to pay the county millions. And in December 2018, an Iowa court ordered that three wind turbines be taken down because they had been constructed without the proper permits.
Nevertheless, whether a decision by the district court to uphold the vacatur ruling in the transmission line case would automatically require the line and towers to be dismantled isn’t clear. The National Parks Conservation Association believes that it would, and the corps in its court filings has acknowledged that it might, noting that vacatur “would cast legal uncertainty on Dominion’s right to maintain the structures.”
Still, said Eubanks, “I don’t know that there is clarity on that question right now until the court rules.”