CSG Law Alert: Happy Is The Nation That Has No History?
In answer to the question above, the answer is no as shown by a recent case. In National Parks Conservation Association v. Semonite, 916 F.3d 1075 (D.C. Circuit, 2019), the Army Corps of Engineers (Corps) was, in effect, reprimanded and overruled for its decision to allow the construction of electrical transmission towers and lines across a river Congress had earlier recognized as America’s Founding River. Virginia’s James River runs past a number of historic properties including Jamestown, site of the first permanent English settlement in North America, and the Captain John Smith National Historic Trail, “the nation’s only congressionally –protected water trail.” An independent federal agency, the Advisory Council on Historic preservation, deemed this area “a relatively unspoiled and evocative landscape that provides context and substance” for these historic properties. The decision remanded the case to the United States District Court for the District of Columbia to vacate the permit and require the Corps to prepare an Environmental Impact Statement (“EIS”). In doing so, the court referred to these properties as “historic treasures” in a region of “singular importance to the nation’s history.”
This case is viewed by historic preservationists as a major and positive decision that will be precedential or persuasive in future cases. Pursuant to the National Environmental Policy Act, the Corps is required to consider alternatives to a project encroaching upon a historic resource and prepare an EIS if that project will significantly affect the historic resource. However, if the Corps determines preliminarily that a project has “no significant impact” on such a resource, it can skip an EIS.
The Court rejected the Corps’ determination that the proposed transmission project would have no significant impact on the historic resources at issue as “arbitrary and capricious.” In doing so the Court questioned the acceptability of the Corps’ methodology for determining no significant impact in light of its “misgivings” about the location of a project of this magnitude. Newspaper accounts note that the project included 17 towers with four of them exceeding 295 feet above the water. The towers carry six cables of two inches in diameter and are capable of moving 500,000 volts. Construction costs exceeded $400 million. These towers are within sight of Jamestown, the Colonial National Park running between Yorktown and Williamsburg, and certain other historic properties along the James. The National Park Service believed the project “would forever degrade, damage, and destroy the historic setting of these iconic resources.”
So, it’s no wonder that the historic preservation community was enthusiastic about the decision. But a problem remains. The towers were built and the cables were installed prior to the court’s decision. In fact, the system was energized and power was moving only a few days before the court’s decision. The future of that system will now, in the first instance, be decided by the lower court.
* In the spirit of full disclosure, John A. McKinney, the author of this post, is a descendant of a Jamestown colonist who arrived there in 1619.