UNITED sTATES DISTRICT COURT
FoR THE DI'STRICT OF COLUMBiA

NATIONAL PARKS CONSERVATION
ASSOCIATION,

Plaintiff,

v.
TODD T. SEMONITE, Lieutenant General, U.S
Army Corps of Engineers and ROBERT M.
SPEER, Acting Secretary of the Army

Defendants,

VIRGINIA ELECTRIC AND POWER
COMPANY,

Defendant-Intervenor.

 

NATIONAL TRUST FOR HISTORIC
PRESERVATION IN THE UNITED STATES
and ASSOCIATION FOR THE
PRESERVATION OF THE VIRGINIA
ANTIQUITIES

Plaintiff,

v.
TODD T. SEMONITE, Lieutenant General, U.S
Army Corps of Engineers and ROBERT M.
SPEER, Acting Secretmy of the Army

Defendants,

VIRGINIA ELECTRIC AND POWER
COMPANY,

Defendant-Intervenor.

Vv\/VV\/\/\/\/\./\/\/\_/\/VVV\/\/\/\/V\J\/\/\/V\_/VV\/V\/\/VV\./VVV

Civil No. 17-CV-01361-RCL

Civil No. 17-CV-01 574-RCL

MEMORANDUM OPINION

Before the Court are plaintiff National Parks Conservation Association’s Motion for
Preliminary Injunction (l7-cv-Ol361, ECF No. 5); plaintiffs National Trust for Historic
Preservation in the United States’ and Association for the Preservation of Virginia Antiquities’
Motion for Preliminary Injunction (l7-cv-01574, ECF No. 22) (collectively, “Motions for
Preliminary lnjunction”); and all responses and replies thereto. Given the substantially similar
nature of the cases, the Court will address both motions in this opinion. For the reasons given
below, the Court will DENY the Motions for Preliminary Injunction.
I. BACKGROUND

This dispute arises out of a planned electrical infrastructure project, known as the Surry-
Skiffes Creek-Whealton Project (“Project”), which defendants contend is necessary to provide
reliable electric service to the region. The Project consists of three components: (l) a new
overhead transmission line across the J ames River from Surry to Skiffes Creek, (2) a new electrical
switching station at Skiffes Creek, and (3) a new overhead transmission line from Skiffes Creek
to Whealton. The river-crossing component of the Project will cross the J ames River through and
in close proximity to numerous historically significant sites dating back to the birth of our Nation:
the Captain John Smith Trail, the Jamestown-Hog Island-Captain John Smith Trail Historic
District, Jamestown Island, the Colonial Parkway, Colonial National Historical Park, and Carter’s
Grove National Historic Landmark. The river crossing will entail the construction of seventeen
towers, up to 295 feet tall, across the J ames River.

In early 2013, defendant-intervenor Virginia Electric and Power Company (“Dominion”)
sought approval for the Project from the U.S. Army Corps of Engineers (“Corps”). In August

2013, the Corps issued a public notice initiating the Project permitting process, solicited comments

from the public and government agencies, and noted that a preliminary review indicated that an
Environmental Impact Survey (“EIS”)_required under the National Environmental Policy Act
(“NEPA”) for projects that significantly impact the environment_would not be required. ln
response to the notice, the Corps received comments expressing concern With the Project’s
proximity to historic sites-including from the National Parks Service (“NPS”), a sister
government agency. From 2014-2017, the Corps engaged in the consultation process required
under Section 106 of the National Historic Preservation Act (“NHPA”) and continued to receive
expressions of concern regarding the impact of the Project and the need for an EIS from various
stakeholders, including from NPS and the White House Council on Environmental Quality
(“CEQ”).

In May 2017, the Corps; Dominion; and the Acting Assistant Secretary of Interior for Fish,
Wildlife, and Parks (on behalf of NPS), among other parties, signed a Memorandum of Agreement
(“MOA”). The MOA, developed through the Section 106 consultation process, contained
stipulations to avoid, minimize, and mitigate adverse impacts to the historical Sites in proximity to
the proposed Project. In June 20]7, the Corps signed and released a document entitled
Memorandum for the Record (“MFR”). The MFR, a lll-page document, includes an
Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”) as required
under NEPA, and a Section 404 Statement of Findings as required under the Clean Water Act
(“CWA”). And on July 3, 2017, the Corps issued the permit to Dominion authorizing the portions
of the Project under Corps jurisdiction, subject to compliance with the MOA (among other
conditions).

Plaintiffs, all non-profit organizations, subsequently brought suit in this Court and moved

for preliminary injunctions Plaintiffs National Trust for Historic Preservation in the United States

and Association for the Preservation of Virginia Antiquities allege violations of NEPA,'the NHPA,
the CWA, and the Rivers and Harbors Act (“RHA”) and request that the court enjoin only the river
crossing component of the Project. Plaintiff National Parks Conservation Association alleges
violations of NEPA and the NHPA and moves that the court enjoin implementation of the Corps’
permit to Dominion. On September 20, 2017, the Court heard oral arguments on the Motions for
Preliminary Injunetion. The Court now considers these motions.
II. LEGAL STANDARD

In order to obtain a preliminary injunction, plaintiffs must satisfy the following four
elements: (l) likelihood of success on the merits; (2) likelihood that they will suffer irreparable
harm in the absence of the preliminary injunction; (3) that the balance of equities tips in their favor;
and (4) that an injunction is in the public interest. Winter v. Natural Res. Def Council, Inc., 555

U.S. 7, 20 (2008).

Preliminary injunctive relief is an extraordinary form of judicial relief and is “never
awarded as of right,” but only “upon a clear showing that the plaintiff is entitled to such relief.”
Id. at 22, 24; Sherley v. Sebelius, 644 F. 3d 388, 392 (D.C. Cir. 201 l). Plaintiffs must “demonstrate
that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. The Court
of Appeals “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches
v. Engalna', 454 F.3d 290, 297 (D.C. Cir. 2006). The injury “must be both certain and great; it
must be actual and not theoretical.” Id. (citing Wisc. Gas Co. v. FERC, 758 F.2d 669, 674
(D.C.Cir.l985) (per curiam)). Plaintiffs must demonstrate that the injury is “of such imminence
that there is a clear and present need for equitable relief to prevent irreparable harm.” Ia'. (intemal

quotations removed). Moreover, the injury “must be beyond remediation” and “[m]ere injuries,

however substantial, in terms of money, time and energy necessarily expended in the absence of a

stay are not enough.” Id. (internal quotations removed).

Prior to the Supreme Court’s ruling in Winter, a number of circuits, including the D.C.
Circuit, evaluated the four factors using a “sliding scale” approach-allowing a strong showing on
one of the factors to make up for a weaker showing on another factor. Sherley, 644 F. 3d at 392.
The D.C. Circuit has yet to clarify whether Winter explicitly precludes the use of a “sliding scale”
approach. Id. at 393. But, the outcome of this case would not change even if analyzed under a
“sliding scale” approach The Court finds that the plaintiffs have not established a likelihood of
any irreparable harm and “failure to show any irreparable harm is [] grounds for refusing to issue
a preliminary injunction, even if the other three factors entering the calculus merit such relief.”
Chaplaincy 454 F.3d. at 297. The Court, therefore, need not consider the other three factors of the
preliminary injunction test, even though the plaintiffs have made a powerful argument on the

merits. GEO Specialty Chem., lnc. v. Husisian, 923 F.Supp.2d 143, 147 (D.D.C. 2013).

III. DISCUSSION

Plaintiffs put forward a number of arguments alleging they will suffer irreparable harm in
the absence of a preliminary injunction First off, both sets of plaintiffs point to harm to their
recreational and aesthetic interests should Dominion construct the electrical towers across the
River. See l7-cv-0136l, ECF No. 5-l at 42-43; l7-cv-01574, ECF No. 22-1 at 33. At the heart
of their allegations is the claim that the electrical line and the seventeen towers across the river
will negatively affect viewsheds in the area and irreparably harm their overall enjoyment of the
nationally important region. For example, a declarant for plaintiff National Parks Conservation
Association explains that “[t]he intrusion of mammoth towers of modernity will instantly and

forever after alter the space, the peace, and the reflection of this place in history” and that her

experience “will forever be diminished” and “permanently tamished by this intrusion on an
unparalleled landscape.” l7-cv-0136l, ECF No. 5-1 at 42-43. Plaintiffs National Trust for
Historic Preservation in the United States and Association for the Preservation of Virginia
Antiquities note that their “members currently use this area for recreational and aesthetic purposes”
and those “uses would be compromised by the River Crossing.” l7-cv-0l574, ECF No. 22-l at
33.

The Court is not persuaded that those alleged injuries are irreparable at this stage of the
litigation. The alleged injuries are not “of such imminence that there is a clear and present need
for equitable relief to prevent irreparable harm.” Chaplaincy 454 F.3d. at 297. Dominion has
indicated that it does not plan to begin construction on the tower structures across the river until at
least April 2018. 17-cv-0136l, ECF No. 22 at 38. The first stage of the Project-scheduled to
commence this month-involves constructing the underwater foundations which will extend seven
feet above the Water. Id. Therefore, the source of the plaintiffs alleged irreparable harm-
“mammoth towers”_won’t begin to be built for at least another six months, leaving the parties’
ample time to iiilly brief the merits of the case. The standard is not that irreparable harm will occur
at some point in the future, but that plaintiffs suffer irreparable harm before a decision on the merits
can be reached.l As our Court has noted, “it is well established that ‘perhaps the single most
important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is
not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be

rendered.”’ Sierra Club v. United States Army Corps of Engineers, 990 F. Supp. 2d 9, 38 (D.D.C.

 

1 The Court need not find at this time whether the fully constructed electrical line and towers constitute

irreparable harm. If this case has not been decided on the merits prior to beginning of construction on the towers,
the Court welcomes renewed motions for preliminary injunction at that time.

6

2013) (citing 1 1A CHARLEs ALAN WRIGHT, ARTHUa R. MILLER & MARY KAv KANE, FEDERAL
PRACTICE AND PRoCEDURE § 2948.1 (Zd ed. 2013) (emphasis added)).

Here, Plaintiffs have not demonstrated that the seventeen foundations will result in
irreparable harm to their interests The foundations, spread across an approximately four-mile
stretch of the river, will extend a mere seven feet above the river--roughly the height of a person
standing on a boat. See l7-cv-0136l, ECF No. 22 at 38. The Court is hard pressed to see, nor
have plaintiffs established, how that will result in the “grea ” harm necessary to warrant a
preliminary injunction Chaplaincy, 454 F.3d. at 297. It is not clear whether they will even be
visible from a number of the historical sites in the region (for example, Carter’s Grove, one of the
closest land-based vantage points, sits roughly l.5 miles from the`site of the river crossing)i And
even if visible from land-based vantage points or individuals travelling by boat, they would not
irreparably harm plaintiffs’ recreational and aesthetic interests any more than the various fenies
and ships already traversing the river.

Plaintiffs National Trust for Historic Preservation in the United States and Association for
the Preservation of Virginia Antiquities stress that “they will begin to suffer harm when Dominion
initiates construction.” l7-cv-01574, ECF No. 22-1 at 33. One declarant notes, “[i]f construction
begins this fall, my experience would be permanently and irreparably hanned by viewing
construction equipment and massive industrial barges in the river, and I would likely end my jogs
along the lsland loop due to such construction” l7-cv-01574, ECF No. 22-5 at 116 Plaintiffs
further contend that construction activities will “cause Plaintiffs’ members, and the educational
groups they host, to delay, cancel, or lessen enjoyment of planned visits to the area.” l7-cv-01574,

ECF No. 22-1 at 34.

The Court finds that this argument also falls short in establishing irreparable harrn. First
off, for an injury to qualify as irreparable it much be “beyond remediation.” Chaplaincy, 454 F.3d
at 297. Construction, by its very nature, is temporary. The Court can issue an injunction at a later
stage and order construction to be halted.2 At that time, any individuals who were deterred from
visiting the area could return without having to witness an active construction project. Plaintiffs
have not provided evidence, outside of conclusory declarations, that individuals who visit the area
during construction will choose not to return in the future specifically because of their negative
experience.

Next, Plaintiffs allege that they will sustain irreparable procedural harm should the Court
fail to grant a preliminary injunction Procedural harm arising from a NEPA violation coupled
with “irreparable aesthetic injuries” can constitute irreparable harm. Fund For Animals v. Norton,
281 F. Supp. 2d 209, 222 (D.D.C. 2003) (citingAmoco Proa'uction Co. v. Village of Gambell, 480
U.S. 531, (1987)). However, as noted above, the plaintiffs have not established irreparable
aesthetic injuries. And even if the Court were to assume a NEPA violation, that procedural harm
standing alone is insufficient to constitute irreparable harm. Id.

Plaintiffs also contend, relying on out-of-circuit cases, that failing to issue an injunction
and allowing Dominion to push forward with the Project will render any future EIS to be of “little,
if any, utility.” l7-cv-0136l, ECF No. 34 at 23. The government decision makers will already
have their minds made up and reasonable alternatives will necessarily be limited as Dominion

begins construction of the towers in the river. Plaintiffs cite the First Circuit case Sierra Club v.

 

2 Defendants argue that the harm would also not be irreparable because the Court could always order the

completed towers removed at a later point. Defendants do not provide the basis by which the Court could
promulgate such an order. Nor is the Court aware of any precedent to order a private company to tear down a
completed project See Finca Santa Elena, Inc. v. U.S. Army Corps of Engineers, 62 F. Supp. 3d l, 5 (“The Court is
aware of rio case, and plaintiffs cite none, where a court in a NEPA case ordered a defendant to dismantle a
completed construction project.”). Therefore, the Court does not base its decision today on the ability to reverse any
future harm that may occur from the completed towers in the river.

8

Marsh, among other cases, highlighting that "‘the harm at stake is ...' the added risk to the
environment that takes place when government decisionmakers make up their minds without
having before them a [proper] analysis.” Sierra Club v. Marsh, 872 F. 2d 497, 500 (1 st Cir. 1989).
The Court is not persuaded by this argument The Supreme Court and D.C. Circuit require
that irreparable harm be likely, not merely speculative Winter, 555 U.S. at 22; Chaplaincy, 454
F.3d at 297. The Court finds it hard to believe that the Corps, which has no financial stake in this
Project and is merely the permitting organization would be unable to objectively weigh reasonable
alternatives in a future EIS just because Dominion has started construction Plaintiffs have not
presented evidence sufficient to show that scenario is likely. Moreover, if the Court ultimately
determines that the EIS is required, it can direct the Corps to ignore the fact that Dominion has
already begun the Project in considering the reasonable alternatives ln short, the plaintiffs’
contention that they will suffer irreparable procedural harm fails
Finally, plaintiffs National Trust for Historic Preservation in the United States and
Association for the Preservation of Virginia Antiquities contend they will suffer irreparable harm
to their organizational missions See 17-cv-01574, ECF No. 22-1 at 34-36. They note that their
organizations are focused on protecting and promoting historical sites and that the construction of
the Project conflicts with those purposes Id. They cite declarations highlighting that the
construction will make it more difficult to attract visitors to ongoing activities and other events at
Historic Jamestowne and Colonial National Historical Park as well as jeopardize their efforts to
have Jamestown Island formally designated as a UNESCO World Heritage Site. Id. at 35-36.
lt is not adequate for the plaintiffs to allege mere harm to the organization; the harm must
also be irreparable to warrant a preliminary injunction See League of Women Voters of United

States v. Newby, 838 F.3d l, 9 (D.C. Cir. 2016) (finding that organization’s mission was harmed

because “after the registration deadlines for the November election pass, there can be no do over'
and no redress”) (intemal quotations removed). As the Court has already described, a construction
project can be ordered to stop, which undercuts the notion that the injury is irreversible.

But even if the Court was to accept that the harm would be irreversible if visitors decided
not to visit the site as a result of the construction and the plaintiffs’ liind raising efforts were
thwarted, the plaintiffs’ argument still falls short. Specifically the plaintiffs cite declarations
contending that visitors, upon seeing the construction barges will choose not to return to the site.
See l7-cv-01574, ECF No. 22-8 at 115; l7-cv-01574, ECF No. 22-4 at 117. One declarant goes
further and notes that some visitors “may also share their disappointment in the experience with
friends and on social media platforms” thereby “damaging the reputation of the once well-
preserved cultural landscapes” and impeding the organization’ s ability to satisfy their “educational
mission” and fundraising goals 17-cv-01574, ECF No. 22-8 at 1[3.

Defendants point out, though, that the J ames River has substantial ship and barge trach
and the Corps itself already uses barges in the same location as the proposed river crossing project.
17-cv-01574, ECF No. 29 at 35-36. The Court finds that the plaintiffs’ claims about how visitors
will react to that specific construction site are speculative at best. Perhaps visitors won’t notice
the construction, and if they do perhaps it will not deter them from future visits Plaintiffs bear the
burden of establishing that the irreparable injury must be likely, not merely speculative. Winter,
555 U.S. at 22; Chaplaincy, 454 F.3d at 297. And the Court finds that the plaintiffs have failed to
establish their high burden in this case.

IV. CONCLUSION
For the reasons stated herein, the Court finds that the plaintiffs have failed to establish a

likelihood of irreparable harm prior to this case being decided on the merits Therefore, the

10

plaintiffs Motions for Preliminary Injunetion (17-cv-01361, ECF No. 5 and 17-cv-01574, ECF No.
22) will be DENIED. A separate Order consistent with this Memorandum Opinion shall issue this

date.

siGNEDthis ZF{“' day of october, 2017.

iio BLE RoYCE LAMBERTH fw
UNITED srArEs DisTRicT JUDGE

ll

