This is an interesting one. I get it, how exactly is a 17 mile transmission line across a river, near the historic settlement of Jamestown VA not a significant visual impact under NEPA? Such that it could be mitigated to below a level of significance under an EA? I just don't see it. I'm curious the rationale the USACE used to reach the conclusion that it was not significant. On the surface that's a huge impact to the viewshed of an NRHP Historic District. I'm not saying that the power line would never be built, but we do need to acknowledge what the impacts of these projects are going to be so the regulators can make an informed decision. That's just my opinion. NEPA is rarely black and white.
A panel of judges grilled the federal government today in a fight over an electric transmission project near historical sites in Virginia.
During oral arguments at the U.S. Court of Appeals for the District of Columbia Circuit, Judge Patricia Millett repeatedly pressed the lawyer representing the Army Corps of Engineers to explain why the proposal didn't require an in-depth environmental review.
At issue in the case is a 17-mile transmission line planned to cross the James River near the historic English settlement of Jamestown. Several other agencies, nonprofits and individuals have raised concerns about the aesthetic impacts of the project, which would include transmission towers as tall as 295 feet.
A federal district court in May rejected legal challenges to the Army Corps-approved project, tossing claims from the National Parks Conservation Association, the National Trust for Historic Preservation and others that the agency violated the National Environmental Policy Act, National Historic Preservation Act and Clean Water Act (Greenwire, May 25).
The D.C. Circuit today zeroed in on NEPA claims. The federal law requires agencies to conduct a detailed environmental impact statement (EIS) for actions considered likely to have significant impacts or a simpler environmental assessment (EA) for relatively insignificant actions. The Army Corps performed an EA for the Dominion Virginia Power project.
Millett, an Obama appointee, raised multiple questions about whether the scope and impacts of the transmission line were "highly controversial," a threshold that would trigger an EIS. She noted that extensive public comments from preservation experts questioned the Army Corps' assessment of the visual impacts.
"Why isn't that totality of factors relevant to 'highly controversial' [analysis]?" she asked.
Critics of the power line have argued that it will destroy viewsheds from several protected sites in the area, including Carter's Grove, a former plantation that is now a National Historic Landmark.
The proposal will have "unparalleled impact" across the historic district, requiring an EIS, attorney William Eubanks II argued for the National Parks Conservation Association.
Justice Department attorney Dustin Maghamfar, representing the Army Corps, and Hunton Andrews Kurth LLP attorney Elbert Lin, representing the power company, responded that the final determination of whether a project's impacts are disputed enough to trigger an EIS is left to the reviewing agency, the Army Corps.
The National Park Service itself raised many concerns about the transmission line and the Army Corps' approach throughout the review process. When Interior Secretary Ryan Zinke took office in 2017, however, he sent a short letter that supported allowing the project to proceed. Millett asked whether that "180" actually confirmed that the impacts are controversial and should be reviewed under an EIS.
Today's arguments were scheduled to last 40 minutes but took up nearly 90 minutes, with extensive debate between the panel and Maghamfar about the NEPA issue.
The court also grappled with a question under the National Historic Preservation Act: Does the Army Corps have to comply with a provision requiring consultation and minimized harm to national landmarks if the impact is only visual, not physical?
The Army Corps argued that only physical impacts on landmarks triggered the NHPA provision, so it didn’t need to comply. But, the agency added, even if it did need to comply, its analysis was already robust enough to meet the requirements.
Judge David Tatel, a Clinton appointee, pushed back. "Wouldn't it be possible that the agency's analysis would be different" if it viewed the NHPA measure as applicable? he asked.
He also acknowledged, however, that the Army Corps says it did weigh the visual impacts. And Chief Judge Merrick Garland, another Clinton appointee, pointed out that the Army Corps considered several alternatives to the agreed-upon route.
The legal debate comes as the electric utility argues that the power line is essential for power reliability in the region. After two coal-fired power units shut down, Dominion has argued that the infrastructure is needed to deliver electricity from other sources. The company has estimated completing construction next year.