Feds to D.C. Circuit: Rethink ruling against Va. power line

Source: Ellen M. Gilmer, E&E News reporter • Posted: Wednesday, April 17, 2019

The Trump administration is urging federal judges to rethink their recent decision striking down a key permit for a transmission project across the James River in Virginia.

In a filing to the U.S. Court of Appeals for the District of Columbia Circuit yesterday, the Army Corps of Engineers warned of major disruptions if the Dominion Virginia Power-backed project loses its federal approval.

“[V]acating the permit would throw into doubt the status of the already-operational transmission line, which is presently serving critical energy-reliability needs,” the agency told the D.C. Circuit.

In its own filing yesterday, Dominion said the court’s action could threaten electric reliability for more than 600,000 people.

The scramble to preserve federal approval for the 17-mile transmission line comes after a three-judge panel last month faulted the Army Corps for inadequate environmental review of the project, which crosses the James River near the historic English settlement of Jamestown.

The National Parks Conservation Association and National Trust for Historic Preservation sued over the project years ago.

The court’s decision called for immediately canceling the federal permit and ordered the Army Corps to conduct an in-depth environmental impact statement.

It came just days after the years-in-the-making project officially started service, having survived earlier efforts by environmentalists to halt construction.

The ruling also sparked concern among project backers that the transmission towers would have to be torn down (Greenwire, March 1).

Yesterday’s legal filings from the Army Corps and Dominion push the D.C. Circuit to amend its ruling to leave the permit intact while the Army Corps conducts additional environmental review.

They cite the Allied-Signal standard, a legal precedent dating back to a 1993 case that directs judges to consider two questions when deciding whether to scrap permits when an agency has erred in its decisionmaking process: Will the agency likely be able to support its original decision after correcting its errors? And will scrapping permits lead to disruptive consequences?

The Army Corps and Dominion say the answer to both questions in this case is yes.

“The potential for any interim disruption to NPCA and National Trust members’ aesthetic enjoyment of the James River while the towers remain standing does not justify the high cost to the Hampton Roads public and the multi-state power grid of even the possibility of removing the greatly needed transmission line and towers,” the Army Corps told the court.

“This is especially so,” the agency added, “when there is a serious possibility that the line and towers may be validly authorized following remand.”

Project opponents have vowed to push for removal of the towers.