First, the Army Corps of Engineers violated environmental law by giving Virginia’s Dominion power company a permit to build a series of electric transmission towers across the historic James River.
The DC Court of Appeals told them that in March. It upheld a potentially blockbuster order that the permit be vacated and the towers had to be removed. But that was with the understanding that Dominion and the Corps agreed, if environmentalists won they would remove the towers.
The project consisted of seventeen 250-ft. steel towers supporting electric lines across the James River. The March ruling was considered to have major implications for the rights of preservation groups after major protests surrounded the permitting process.
But the Corps came back to the appeals court saying the towers were now built and had, in fact, been electrified a week before the appeals court issued its opinion. Now, the Corps and Dominion say they invested $400 million in construction and want to permit reinstated.
The appeals court was not amused, calling it “more than a little troubling.” But still, on Friday, the panel punted the case back to the trial judge to see what can be done.
The panel points out that the Corps and Dominion originally said there was no need for an injunction stopping construction because they would take down the towers if the opponents won – when they said the cost was $178 million.
Having won that benefit, the Corps cannot take the contradictory position that would put the conservation groups in the position of a largely hollow victory.
“All this said, we nonetheless believe the best course of action is to remand the case to the district court to consider…” whether vacating the permit is appropriate or if the Corps has forfeited that option.
The Corps was originally found to have violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental statement.
The joint, unsigned opinion was filed by Judges Merrick Garland, David Tatel and Patricia Millett.
Case: National Parks Conservation Assoc. v. Semonite, No. 18-5179