This article, from law firm Davis Writhe Tremain LLP, is authored by Richard M. Glick.
A federal court in Washington, D.C. gave some encouragement to transmission line developers—not to mention sponsors of other linear projects, such as gas or water pipelines. In National Parks Conservation Assn. v. Jewell, the court rejected a challenge to the National Parks Service’s grant of special use permits and extended rights-of-way for the Susquehanna to Roseland Transmission Line (S-R Line), a replacement and upgrade project.
The focus of Appellant NPCA’s attack was the National Environmental Policy Act (NEPA), a potent weapon in years past. Under NEPA, a federal agency considering a “major” action must evaluate the environmental effects of the project. After an initial Environmental Assessment, the agency either conducts a full blown Environmental Impact Statement (EIS) or issues a Finding of No Significant Impact. NEPA’s purpose is to ensure that the agency takes a “hard look” at the environmental tradeoffs of its intended action, but once having done that, it can decide to move forward regardless. In other words, NEPA is a procedural statute, but lacks teeth to prevent the agency from acting.
Still, NEPA has proved effective in stopping projects in their tracks. The usual avenues of attack have been whether the agency should have written an EIS, whether it considered all reasonable alternatives, whether the EIS needs updating, and whether the project should be seen in a larger context of other similar developments or as part of a broad program. In recent years, however, the agencies have learned how to beat back such challenges.
The NPCA made allegations on similar bases here, but this time to no avail. The Parks Service’s EIS took an adaptive management approach to mitigation, anticipating that the mitigation plan would evolve. The NPCA argued that the EIS must analyze the mitigation ultimately decided on, but the court was satisfied the agency had taken the requisite “hard look.” Nor did the court find a supplemental EIS necessary because the “new information” adduced by the NPCA concerned environmental effects that were already within the scope of the EIS.
The NPCA also argued that the alternatives analysis in the EIS was lacking because it didn’t adequately consider the no-action alternative. In this case, the no-action alternative would be to pursue a non-transmission approach, such as distributed energy. The court deferred to the Parks Service’s analysis that this alternative would not meet the objective of improving the reliability of the applicants’ existing line. The court found that the Parks Service rationally considered and rejected the no-action alternative.
The court also rejected the argument that the Parks Service should have analyzed the environmental effects of the entire S-R Line, and agreed the agency could look just at the consequences of extending the right-of-way. The judge took note of the fact that the project sponsors could have reconstructed the line on their existing right-of-way, and therefore there was no functional difference between the reconstructed line on the proposed right-of-way and the existing one.
The court’s approach in this case is consistent with NEPA case law in recent years. Agencies will be given some deference in their decision making, so long as their NEPA documents indicate a good faith effort to look at environmental impacts. Project opponents can no longer rely on NEPA as a reliable weapon to block development.
Davis Wright Tremain LLP