United States Court of Appeals, District of Columbia Circuit
December 7, 2018
Appeals from the United States District Court for the
District of Columbia Nos. 1:17-cv-01361, No. 1:17-cv-01574
Matthew G. Adams argued the cause and filed the briefs for
appellants National Trust for Historic Preservation, et al.
William S. Eubanks II argued the cause for appellant National
Parks Conservation Association. With him on the briefs was
Eric R. Glitzenstein.
Blanding Holman was on the brief for amici curiae The
Lawyer's Committee for Cultural Heritage Preservation, et
al. in support of appellant.
Joseph Sniff was on the brief for amici curiae 18th Director
of the National Park Service Jonathan B. Jarvis, et al. in
support of appellant National Parks Conservation Association.
J. Maghamfar, Attorney, U.S. Department of Justice, argued
the cause for federal appellees. With him on the brief were
Jeffrey H. Wood, Acting Assistant Attorney General, Eric A.
Grant, Deputy Assistant Attorney General, and Andrew C.
Mergen, Mark R. Haag, and Heather E. Gange, Attorneys.
Lin argued the cause for appellee Virginia Electric and Power
Company. With him on the brief were Eric J. Murdock, Harry M.
Johnson, III, and Timothy L. McHugh.
Michael J. Thompson and Brett K. White were on the brief for
amici curiae PJM Interconnection, L.L.C. in support of
Before: Garland, Chief Judge, and Tatel and Millett, Circuit
order to "create and maintain conditions under which man
and nature can exist in productive harmony," the
National Environmental Protection Act (NEPA), 42 U.S.C.
§ 4331(a), requires any federal agency issuing a
construction permit, opening new lands to drilling, or
undertaking any other "major" project to take a
hard look at the project's environmental consequences,
id. § 4332(2)(C), including the impacts it may
have on "important historic . . . aspects of our
national heritage," id. § 4331(b). To this
end, the agency must develop an environmental impact
statement (EIS) that identifies and rigorously appraises the
project's environmental effects, unless it finds that the
project will have "no significant impact." 40
C.F.R. § 1508.9(a)(1). And that is what happened here.
The U.S. Army Corps of Engineers ("Corps") granted
a permit allowing a utility company to build a series of
electrical transmission towers across the historic James
River, from whose waters Captain John Smith explored the New
World, and it did so without preparing an EIS because it
found that the project would have "no significant
impact" on the historic treasures along the river. As
explained below, however, the Corps's "no
significant impact" finding was arbitrary and
capricious: important questions about both the Corps's
chosen methodology and the scope of the project's impact
remain unanswered, and federal and state agencies with
relevant expertise harbor serious misgivings about locating a
project of this magnitude in a region of such singular
importance to the nation's history. Accordingly, we
reverse the district court's decision to the contrary and
remand with instructions to vacate the permit and direct the
Corps to prepare an environmental impact statement.
400 years ago, Captain John Smith arrived on the shores of
what is now known as the Chesapeake Bay. Keen on learning
more about the unfamiliar land, Captain Smith voyaged up the
winding James River, passing through lush forests and under
open skies. During his voyages, Smith produced "maps and
writings [that] influenced exploration and settlement in the
New World for over a century." 152 Cong. Rec. 22, 282
(2006) (statement of Rep. Davis). These journeys came to
symbolize our nation's founding and to serve as an
equally important reminder of one of the darkest episodes in
our history-the settlers' devastation of Native American
populations, including the "eventual collapse of the
Powhatan polity." John S. Salmon, Project Historian,
National Park Service, Captain John Smith Chesapeake National
Historic Water Trail Statement of National Significance 2
after Smith's voyages, the river "serv[ed] as a
strategic transportation corridor that shaped the settlement
and commerce of the region." H.R. Res. 16, 110th Cong.
preamble (2007). Indeed, "the economic, political,
religious, and social institutions that developed during the
first [nine] decades" of the corridor's settlement
"have profound effects on the United States" to
this day. Jamestown 400th Commemoration Commission Act of
2000, Pub. L. No. 106-565, § 2(a)(3), 114 Stat. 2812,
2812. The same region commanded center stage through the
nation's infancy, bearing witness to "the British
surrender that marked the end of the American
Revolution." Colonial National Historical Park
Amendments, S. Rep. No. 104-30, at 2 (1995).
these ties to our nation's past, Congress and several
federal agencies have established a series of "historic
resources" in and around the Chesapeake Bay, including
Jamestown, Carter's Grove National Historic Landmark, and
the Captain John Smith National Historic Trail
("Historic Trail"), the nation's only
congressionally-protected water trail. Due to the James
River's "extraordinary historic, economic,
recreational, and environmental importance," Congress
recognizes it as "'America's Founding
River.'" H.R. Res. 16 §§ 1, 2. According
to one representative, Congress "[d]esignat[ed] this
[H]istoric [T]rail . . . to spur efforts to protect and
restore the region's historic and environmental
assets." 152 Cong. Rec. 22, 283 (2006) (statement of
Rep. Castle). Other members of Congress observed that the
region "represents a lasting tribute to the American
spirit of discovery and exploration," id. at
22, 282 (statement of Rep. Davis), affording visitors
"the opportunity to marvel at some of the same sites
that Captain Smith and his crew beheld 400 years ago,"
id. at 22, 283 (statement of Rep. Hoyer).
National Park Service, an agency of the Department of the
Interior, pursuant to its obligation "to conserve the
scenery [and] natural and historic objects" of our
national parks, 54 U.S.C. § 100101(a), acts as steward
of these resources, striving to "offer visitors an
opportunity to vicariously share the experience of Smith and
his crew" through views "evocative of the
seventeenth century," Park Service, A Conservation
Strategy for the Captain John Smith Chesapeake National
Historic Trail Introduction 3 (2013). To this end, and in
accordance with its conservation "management plan"
for the Historic Trail, the Service seeks to "[m]aximize
the visual and historical integrity of the visitor
experience" by, among other things, ensuring that all
new utility lines are underground. Park Service, General
Management Plan: Colonial National Historical Park 19, 34
(1993) ("Management Plan").
the demands of modernity. Although the approximately
fifty-mile leg of the James River involved in this case has
retained its seventeenth-century charm, the rest of Virginia
has kept apace with modern development, which means it
depends on electricity. Following the 2012 issuance of an
Environmental Protection Agency rule requiring power
generation facilities to reduce certain air pollutant
emissions, see 77 Fed. Reg. 9304 (Feb. 16, 2012),
Virginia Electric and Power Company ("Dominion")
determined that, in order to comply with the rule, it would
have to retire two coal-fired power generators. To compensate
for the resulting electricity shortfall, Dominion applied in
2013 to the Corps, which has jurisdiction over certain
projects concerning "waters of the United States,"
see 33 C.F.R. § 328.1 (internal quotation marks
omitted), for a permit to construct a new electrical
switching station and two transmission lines. Supported by
seventeen 250-or-so-foot steel-lattice transmission towers,
the line at issue here would stretch for eight miles, four of
which would cross the James River and cut through the middle
of the historic district encompassing Jamestown and other
historic resources. See Figure 1.
1: Overview Map of Project and Historic Properties (created
by Industrial Economics, ...