Success Story Update: Persistence pays off—court rules Army Corps acted improperly in approving James River powerlines without Environmental Impact Statement.

On March 1, 2019, the U.S. Court of Appeals for the District of Columbia reversed a lower court’s decision and ruled that the Army Corps of Engineers acted improperly in allowing the Dominion Energy Co. to construct a massive powerline crossing the James River at Jamestown, Virginia, without preparation of an Environmental Impact Statement.

The disputed powerline section consists of seventeen towers reaching as high as 295 feet, cutting through what has been called “one of the nation’s most historically rich areas,” where colonists under the leadership of Capt. John Smith founded the first permanent English settlement in North America. Both the National Park Service and the federal Advisory Council on Historic Preservation strongly opposed the construction, citing irreparable damage to the historic landscape. Despite these objections the Army Corps of Engineers issued the utility company a construction permit in June 2017, claiming a finding of “no significant impact” on the river environment and historic surroundings.

The Coalition joined forces with several other groups in a lawsuit to halt the construction, submitting a detailed amicus curiae brief that pointed out the substantial impact the powerline would have on Colonial National Historical Park, Carter’s Grove National Historic Landmark, and the Captain John Smith National Historic Trail. In May, 2018, the U.S. District Court ruled against this lawsuit, allowing to construction to proceed.

The Coalition and its partners were not deterred, however, and filed an immediate appeal: a decision whose wisdom has now been confirmed. The verdict of the three-member Court of Appeals panel was unambiguous: “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.”

The future of the towers, completed while the appeal was in process, is now uncertain, but Dominion Energy’s own court filings offered a prediction that seems hard to dismiss: “Without the permit, Dominion would not be authorized to maintain the towers within the river and, absent express authority from a court or otherwise, likely would have no choice but to remove the towers.” The Coalition will continue watching this situation closely.