National Trust for Historic Preservation v. Semonite ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL PARKS CONSERVATION
ASSOCIATION,
Plaintiff,
V.
TODD T. SEMONITE et ail. Civil Action No. 1:17-cv-01361-RCL
Defendants
and
VIRGINIA ELECTRIC & POWER COMPANY,
Defendant-Intervenor.
NATIONAL TRUST FOR HISTORIC
PRESERVATION IN THE UNITED STATES
and ASSOCIATION FOR THE PRESERVATION
OF VIRGINIA ANTIQUITIES,
Plaintiffs,
Vv.
TODD T. SEMONITE et al., Civil Action No. 1:17-cv-01574-RCL
Defendants,
and
VIRGINIA ELECTRIC & POWER COMPANY,
Defendant-Intervenor.
Nee Nee Nee Nee ee ee” ee ee” ee” ee” ee ee” ee ee ee ee ee ee ee ae ee ae ae ee ee ee ae ee ee es ae ee ae ae ae ae
MEMORANDUM OPINION
On March 1, 2019, the D.C. Circuit determined that the U.S. Army Corps of Engineers
(“Corps”) violated the National Environmental Policy Act (“NEPA”) by failing to complete an
i
Environmental Impact Study (“EIS”) before issuing a permit to the Virginia Electric and Power
Company (“Dominion”) to construct the Surry-Skiffes Creek-Whealton project (“the project”).
The D.C. Circuit, however, was unaware that the project was completed shortly before they
issued their opinion.' Upon learning of the project’s completion shortly thereafter, the D.C.
Circuit remanded the case to this Court to determine the appropriate remedy.
Before turning to the ultimate question of whether vacatur is proper, two threshold
questions must be addressed: (1) whether defendants waived or forfeited the right to contest that
vacatur is the appropriate remedy; and (2) whether defendants are judicially estopped from
contesting that vacatur is the appropiate remedy. For the reasons set forth below, ‘his Court
finds that waiver, forfeiture, and judicial estoppel are all inapplicable here. Fufifienfiore; the
| Court finds that vacatur of the permit is not appropriate in this case. The Court will therefore
remand to the Corps without vacatur but with instructions to complete an EIS in accordance with
the D.C. Circuit’s ruling.”
WAIVER & FORFEITURE
Waiver of a tight is distinct from forfeiture of aright. Waiver is the “intentional
relinquishment or abandonment of a known right or privilege.” United States v. Olano, 507 U.S.
725, 733 (1993). In contrast, forfeiture is the “failure to make the timely assertion of a right.”
Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017). Nothing in the record supports the
notion that defendants ever “intentional[ly] relinquish[ed] or abandon[ed] . . . a known right or
' The only work that remains to be completed on the project is the installation of protective fiberglass jackets around
the pipe piles at each foundation for the towers located in the James River. There are 206 piles that remain to be
jacketed out of a total 416. Allen Decl. at 6, NPCA ECF No. 127-3.
? According to representations that the Corps made to the Court at the hearing on October 15, 2019, the EIS process
is already well underway. The Court encourages the Corps to continue working on the EIS at such a commendable
pace.
privilege,” and therefore only the forfeiture issue will be addressed further. Olano, 507 U.S. at
733.
Plaintiffs are correct that defendants’ appellate brief contained only one reference to their
desired remedy—remand without vacatur—in the event that they lost on the merits. Plaintiffs
also stress the fact that this one reference was in the brief’s conclusion, and they cite Bryant v.
Gates in arguing that an issue is waived or forfeited when a party’s argument on an issue consists
of only a single, conclusory statement. 532 F.3d 888, 898 (D.C. Cir. 2008) (holding in part that
an as-applied First Amendment Free Speech challenge was “doubly forfeit” when not raised in
the district court and when included in the appellate brief only as a “single, conclusory
statement”). “It is not enough merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel’s work.” Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005) (quoting United States v. Zannino, 895 F.2d 1, 17 (Ast Cir. 1990)).
Although plaintiffs cite numerous cases to support their forfeiture arguments, those cases
all involved the forfeiture of a merits issue rather than forfeiture of a remedy issue.* The question
of whether the Corps needed to conduct an EIS (the merits issue) is separate from the question of
whether vacatur is appropriate in this situation (the remedy issue). In Honeywell Intern., Inc. v.
EPA, the concurring opinion explained that the merits of a case and the appropriate remedy are
3 In Catawba City, N.C. v. EPA, the Court found two arguments regarding statutory interpretation to have been
waived. 571 F.3d 20, 38 (D.C. Cir. 2009). In United States v. Whitmore, the Court noted that a party’s argument
about an Advisory Committee Note for the Federal Rules of Evidence was improperly raised for the first time on
appeal. 384 F.3d 836, 836-37 (D.C. Cir. 2004). In Bryant v. Gates, the Court found an as-applied Free Speech
challenge to be waived because it was not raised in either the district court or the appellate court. 532 F.3d 888, 898
(D.C. Cir. 2008). In Hospital of Barstow, Inc. v. NLRB, the Court refused to consider certain merits arguments raised
by the petitioner regarding the authority of the National Labor Relations Board. 897 F.3d 280, 290-91 (D.C. Cir.
2018). In Carducci v. Regan, the Court declined to consider an unanalyzed constitutional claim that “literally
consisted of no more than the assertion of violation of due process rights.” 714 F.2d 171, 177 (D.C. Cir. 1983).
Every single one of these cases related to waiver or forfeiture of an argument on a merits issue rather than an
argument about the proper remedy, making this case easily distinguishable from the authorities that plaintiffs cite.
3
different issues that should be treated separately. See 374 F.3d 1363, 1375 (D.C. Cir. 2004)
(Randolph, J., concurring). Questions of remedy are commonly reserved for post-decision
motions, and “[i]t is quite rare for the parties even to mention the question of remedy in their
merits briefs.” Jd. at 1375. Although plaintiffs argue that the Honeywell concurrence turns in
their favor because Judge Randolph also wrote that “vacating (or reversing) and remanding
unlawful agency action, rather than simply remanding, should always be the preferred course,”
that phrase is relevant to the ultimate issue of whether vacatur is proper here, not to whether
defendants forfeited their right to contest vacatur. Jd. at 1374-75. Because the question of
whether an EIS was required is separate from the question of whether vacatur is warranted,
defendants did not forfeit their right to contest that vacatur is the appropriate remedy when they
omitted those argumients from their appellate brief. Essentially, it is standard practice on appeal
to wait until after a decision on the merits to raise arguments regarding the proper remedy, which
is precisely what defendants did here.
Even if defendants had forfeited their right to contest vacatur, this Court would still have
the authority to consider the appropriateness of vacatur if “injustice might otherwise result.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976); see Hormel v. Helvering, 312 U.S. 552, 557
(1941). Due to the project’s importance as a power source in the region and the amount of money
at stake, it would be unjust not to reach the ultimate question of whether vacatur is the
appropriate remedy in this case. Regardless of what defendants did or did not argue on appeal,
.the hundreds of thousands of people whose power source could be impacted by this decision are
not responsible for what defendants included in their appellate briefs, yet they are the ones who
would be directly affected if the Court failed to reach the remedy issue in this case. Therefore,
even if defendants had waived or forfeited their remedy argument, the Court would still exercise
its discretion to reach the question of whether vacatur is appropriate in this instance.
JUDICIAL ESTOPPEL
Judicial estoppel is an equitable doctrine that precludes a party from “adopting a legal
position in conflict with one earlier taken in the same or related litigation” in order to “protect
the integrity of the judicial process.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). When
determining whether judicial estoppel applies, courts generally consider three factors: (1)
whether a party’s later position is clearly inconsistent with their earlier position; (2) whether
judicial acceptance of an inconsistent position in a later proceeding would create the perception
that the court was misled; and (3) whether the party asserting the inconsistent position would
derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Id. at 750-51.
Beginning with the first factor, defendants have not taken “clearly inconsistent” positions
throughout this litigation. At the preliminary injunction stage, defendants argued that there would
be no irreparable harm without a preliminary injunction because the court could later order the
towers torn down if plaintiffs prevailed on the merits. Plaintiffs have since prevailed on the
merits, and defendants are now within their rights to argue against vacatur as the appropriate
remedy. Defendants said that the court could order vacatur if plaintiffs prevailed on the merits,
not that the court must order vacatur if plaintiffs prevailed on the-merits. For example,
defendants stated at the preliminary injunction stage, “[I]f necessary .. . any visible
infrastructure could be removed and the existing views thus fully restored.” Dominion’s Mem. in
Opp. to Plaintiff’ s Motion for Preliminary Inj. at 38, National Trust ECF No. 22.4 They also
acknowledged that “[t]he D.C. Circuit has made clear that courts have the authority to order
removal of completed infrastructure projects upon finding violations of the National
Environmental Policy Act... if equity so requires.” Dominion’s Mem. in Opp. to Plaintiff's
Emergency Motion for an Inj. Pending Appeal at 3, NPCA ECF No. 114. Similarly, defendants
noted that if plaintiffs prevailed on the merits, Dominion would likely “have no choice but to
remove the towers .. . absent express authority from a court or otherwise” because it “would be
within the Court’s authority to order Dominion to take down the towers.” Jd. at 10. Even when
there is ambiguity about whether a clear inconsistency exists, courts should “assum[e] there is no
disabling inconsistency, so that the second matter may be resolved on the merits.” Comcast
Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir. 2010) (quoting 18B Charles Alan Wright, Arthut
Miller & Edward H. Cooper, Federal Practice and Procedure § 4477, at 594 (2d ed. 2002)). It is
thus presumed that judicial estoppel does not apply unless the opposing party can show that it
should, which plaintiffs have not been able to do.
Even the briefs that defendants submitted to this Court after the D.C. Circuit remanded
the case are not clearly inconsistent with their previous contention that the court could order
vacatur. Although defendants argue that vacatur is unwarranted here, at no point do they claim
that this Court must not order vacatur or that this Court is without the power to order vacatur—
they merely try to persuade the Court to exercise its vast discretion in their favor. The difference
between could and must is paramount, as that distinction is what prevents this Court from finding.
a “clear inconsistency” under the first factor of the test. New Hampshire, 532 U.S. at 750-51.
* Because this action is comprised of two consolidated cases with different case numbers, each ECF citation is
preceded by either “NPCA” (for Case No. 17-cv-1361) or “National Trust” (for Case No. 17-cv-1574).
6
Turning to the second factor, plaintiffs overstate what constitutes the perception that the
court was misled. Plaintiffs contend that the mere perception, absent evidence of malintent, is
sufficient to warrant the application of judicial estoppel. That is simply not true. The Supreme
Court specifically stated that judicial estoppel should not be applied “when a party’s prior
position was based on inadvertence or mistake.” Jd. at 753. Likewise, the D.C. Circuit has
explained that estoppel is about preventing “cold manipulation” rather than “unthinking or
confused blunder.” Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980).
More importantly, however, the second factor is not met because this Court was not
actually misled, and “[i]t follows that judicial estoppel should not be applied if no judicial body
has been led astray.” Jd. This Court certainly never took defendants’ argument that the court
could later order vacatur to a that this Court would be required to order vacatur, It has
always been understood that although vacatur is the standard remedy, there would still be
discretion not to order vacatur. The Court certainly never expected Dominion to stop building the
towers when plaintiffs’ preliminary injunction was denied, as that would have essentially
amounted to a self-imposed injunction. The Court recognized the possibility of the towers being
completed while this litigation was still pending, yet both this Court and the DC. Circuit denied
the preliminary injunction. This Court also understood that if plaintiffs prevailed aii the merits,
the project’s status would be considered under the second Allied-Signal factor when deciding
whether to order vacatur. Although the D.C. Circuit expressed concerns about defendants’
arguments, it is unlikely that they were misled either, as the D.C, Circuit undoubtedly understood
when ruling on the preliminary injunction that the ability to order vacatur is not the same as
being required to order vacatur. In short, those who recognize the difference between “could”
and “must” will understand that the court was not misled, and thus the second factor does not
weigh in favor of applying judicial estoppel.
Looking at the third factor, there is no unfair detriment to plaintiffs or unfair advantage
for defendants such that judicial estoppel is warranted. Although at first glance it may seem
unfair that defendants benefit from completing the project before the D.C. Circuit was able to
issue their ruling requiring an EIS, that unfairness was not caused by any inconsistent position
taken by defendants. As explained above, defendants did not make any misrepresentations to this
court or take clearly inconsistent positions. Any unfairness was caused not by defendants, but by
this Court’s unyaillingness (and the D.C. Circuit’s subsequent unwillingness) to issue a
preliminary injunction. Defendants cannot be judicially estopped from arguing against vacatur
simply because the courts—who understood that if plaintiffs ultimately prevailed on the merits,
the status of the project would be taken into account when determining the appropriate remedy—
decided against issuing an injunction. Additionally, as previously noted, the Court could not
possibly have expected defendants to stop building upon denial of the preliminary injunction, as
that would have amounted to a self-imposed injunction. Therefore, because any disadvantage to
plaintiffs ot advantage to defendants is not the result of a misrepresentation or inconsistent
position on defendants’ part, the third factor does not point towards applying judicial estoppel.
Finally, it is worth noting that if this Court were to find defendants to be judicially
estopped from arguing against vacatur, plaintiffs would also be estopped from making certain
arguments in any post-vacatur proceedings. In explaining why they believe defendants cannot
demonstrate that vacatur would lead to serious harm, plaintiffs emphasize that the second Allied-
Signal factor is only concerned with the direct consequences of vacatur rather than with the
impact that vacatur will ultimately have. Essentially, plaintiffs argue that because vacating the
permit alone does not automatically force defendants to tear down the project, any harm that
would be caused by tearing down the project is irrelevant, and the Court may not consider it.>
Plaintiffs repeatedly stress that destruction of the towers is “hypothetical” and could only
“theoretically affect electrical service from the transmission line.” Sur-Reply of Plaintiff
National Parks Conservation Association in Support of its Opposition to Defendants’ Motions
for Remand without Vacatur at 17, NPCA ECF No. 142. If, however, this Court were to order
vacatur, plaintiffs would almost certainly initiate proceedings to have the project torn down.
Indeed, plaintiffs continually specify that at this time they are seeking only vacatur of the permit
rather than removal of the project, strongly implying that if the Court were to order vacatur,
plaintiffs would argue for removal of the towers in a future proceeding—despite having
‘represented to the Court that such removal was purely “hypothetical.” /d. This would be
analogous to how defendants previously argued that the Court could later order removal of the
project even though they never planned to concede that vacatur was the appropriate remedy
should they ultimately lose on the merits. Therefore, in light of both the three-factor test and
plaintiffs’ own arguments, it would be inappropriate to apply judicial estoppel in this case. It is
thus appropriate to turn to the question of the appropriate remedy for failing to complete an EIS
as required by NEPA.
REMEDY
Although vacatur is the standard remedy in APA cases, it is not warranted here. See
Allied-Signal, Inc. v. United States Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C.
5 As discussed later in this Opinion, the Court does not agree with plaintiffs’ interpretation of the second Allied-
Signal factor, but their argument nonetheless serves as a perfect analogy in explaining why judicial estoppel is
inapplicable here.
Cir. 1993) (explaining that although vacatur is the standard remedy for improper agency action,
courts have discretion to choose a different remedy). Because vacatur is the default remedy,
plaintiffs are correct that defendants bear the burden to prove that vacatur is unnecessary. Allied-
Signal sets forth two factors to consider when determining whether vacatur is appropriate. Id.
First, Allied-Signal requires consideration of “the seriousness of the order’s deficiencies.” Jd.
Second, Allied-Signal requires consideration of “the disruptive consequences of vacatur.” Id.
Neither factor is dispositive, as “there is no rule requiring either the proponent or opponent of
vacatur to prevail on both factors.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d
240, 270 (D.D.C. 2015) (citing North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008)).
Instead, “resolution of the question turns on the Court’s assessment of the overall equities and
practicality of the alternatives.” Jd. at 270 (remanding without vacatur when the first factor
favored vacatur but the second did not); see AARP v. EEOC, 267 F. Supp. 3d 14, 38-39 (D.D.C.
2017) (remanding without vacatur when the first factor favored vacatur but the second did not).
As discussed below, this Court finds that despite the deficiencies in the Corp’s actions, the
severe consequences of vacating the permit warrant a deviation from the standard remedy. The
Court will therefore order remand without vacatur.
I. The Deficiency was Serious under the First Allied-Signal Factor.
Looking at the first Allied-Signal factor, the Court does not assess the deficiency of the
ultimate decision itself—the choice to issue the permit—but rather the deficiency of the
determination that an EIS was not warranted. The D.C. Circuit found that the Corps violated
NEPA by failing to conduct an EIS before issuing the permit to Dominion. The Appellate Court
explained that the Corps should have determined that the project would lead to serious
environmental impacts as defined by NEPA, which should have triggered an EIS instead of a
10
mere Environmental Assessment (“EA”). See Nat'l Parks Conservation Ass'n v. Semonite, 916
F.3d 1075, 1082 (D.C. Cir. 2019) (citing 40. C.F.R. § 1508.27). Three factors indicated that there
would be serious environmental impacts as a result of the project. First, the “degree to which the
effects on the quality of the human environment are likely to be highly controversial” was
significant. Id. at 1083 (quoting 40 C.F.R. § 1508.27(b)(4)). Second, “the geographic area” had
“[u}nique characteristics . .. such as proximity to historic or cultural resources.” Jd. at 1086
(quoting 40 C.F.R. § 1508.27(b)(3)). Third, the “degree to which the action may adversely affect
districts [or] sites . . . listed in or eligible for listing in the National Register of Historic Places”
was high. Jd. at 1087 (quoting 40 C.F.R. § 1508.27(b)(8)). In ordering that the Corps must
conduct a full EIS, the D.C. Circuit specified that “Congress created the EIS process to provide
robust information in situations precisely like this one, where, following an environmental
assessment, the scope of a project’s impacts remains both uncertain and controversial.” Jd. at
1087-88.
On remand, the Corps cannot substantiate its initial procedural decision to forgo an EIS,
as the D.C. Circuit has already found that such a decision would violate NEPA. Additionally,
conducting a pioper EIS without the lines and towers already in place would potentially lead the |
Corps to make a different substantive decision. Although the Corps could ultimately substantiate
their original substantive decision to issue to the permit, that is not a foregone conclusion, as the
EIS will be far more extensive than the EA. All of this is to say that the seriousness of the defect
-is significant. If the first Al/ied-Signal factor were the only consideration, the standard remedy
would likely apply. The second Allied-Signal factor, however, is critical to the ultimate
determination that vacatur is not appropriate in this instance.
11
II. Vacatur would Result in Seriously Disruptive and Harmful Consequences under the
Second Allied-Signal Factor. , , .
Under the second Allied-Signal factor, vacatur may not be warranted if it would lead to
serious, disruptive consequences. Plaintiffs essentially ask the Court to ignore these disruptive
consequences and claim that all the Court may consider is vacatur of the permit itself rather than
the consequences that will certainly follow from vacatur. See Sur-Reply of Plaintiff National
Parks Conservation Association in Support of its Opposition to Defendants’ Motions for Remand
without Vacatur at 17, NPCA ECF No. 142. This Court, however, will not ignore the simple fact
that if vacatur were ordered, that decision would have serious impacts beyond the mere
procedural step of saying that the permit is revoked.° By 1etokins the permit, this Court would
- set in motion a chain of events that could lead to the type of serious, disruptive consequences
with which the second Allied-Signal factor is concerned.
In their Sur-Reply, Plaintiffs all but announce their intention to initiate proceedings to
have the project removed if their request for vacatur is granted. See id. (continually stating that
Plaintiffs at this time are not asking for removal of the towers, thus implying that they will be
seeking removal of the towers in the future). Additionally, this Court ordered plaintiffs to answer
the following question: “If this Court should decide to vacate the permit, do plaintiffs expect to
initiate further proceedings (prior to completion of the Environmental Impact Study) before an
agency, administrative law judge, this Court, or any other judicial body requesting removal of
the Surry-Skiffes Creek-Whealton Project?” NPCA ECF No. 143; National Trust ECF No. 121.
National Trust for Historic Preservation in the United States (“National Trust”) and Association
6 Plaintiffs’ logic regarding what this Court may and may not consider under the second Allied-Signal factor is
unsound. It is the consequences of revocation that A//ied-Signal tasks courts with assessing, not simply the mere
procedural step of revocation. To say otherwise would be to nullify the second factor in any case where the
deficiency was procedural in nature.
12
for Preservation of Virginia Antiquities (“Preservation Virginia”) answered with a clear “no,”
stating that they will only initiate further litigation if the EIS process is not properly followed and
clarifying that they do plan to participate in that EIS process. National Trust ECF No. 123. If
National Parks Conservation Association (“NPCA”) had answered in the same way, this Court
would be less concerned that the harms associated with vacatur (explained below) would actually
come to pass; however, NPCA answered the question very differently than did National Trust
and Preservation Virginia. NPCA stated that it has “no concrete plans” to seek project removal,
yet that phrase appears to be contingent upon the Corps taking “enforcement action against
Dominion for maintaining a structure in the James River without a lawful permit.” NPCA ECF
No. 144 at 1-2. The Court interprets NPCA’s response as saying that if the Corps does not take
action against Dominion and have the project removed, NPCA will. The Court is also unable to
comprehend why plaintiffs would forgo the opportunity to ask for removal in this forum and
instead ask only for vacatur. The only logical explanation is that plaintiffs want to minimize the
appearance of harm under Allied-Signal’s second factor by asking only for vacatur at this stage,
thus setting the scene to ask for project removal in some other forum in the future—in which
case the permit will already have been vacated and project removal will be that much easier to
achieve.
Furthermore, even if plaintiffs did not initiate proceedings to have the towers removed
following a vacatur order, defendants would be in violation of the law by continuing to operate
the project without the permit. Therefore, inability to operate the towers.is nota purely
“hypothetical” or “theoretical[]” result of vacatur. Sur-Reply of Plaintiff National Parks
Conservation Association in Support of its Opposition to Defendants’ Motions for Remand
without Vacatur at 17, NPCA ECF No. 142. It is instead the likely effect of vacatur. At the very
13
moment that the Court would order vacatur, the project would be in direct violation of the law
requiring a permit.
Now that the existence of real-world corisequences following vacatur have been
established, it is necessary to assess the severity of those real-world consequences under the
second Allied-Signal factor. After thoroughly analyzing the evidence that both plaintiffs and
defendants presented, including all submitted declarations, this Court finds that the disruptive
consequences of vacatur would be very serious. One major consequence of vacatur would be the
threat of rolling blackouts in the region. See Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989,
993-94 (9th Cir. 2012) (ordering remand without vacatur because under the second Allied-Signal
factor, vacatur would “delay a much needed power plant” without which “the repion might not
have enough power next summer, resulting in blackouts{]*). In 2012, it became clear that a new
electricity source would soon be necessary for the North Hampton Roads Area, which is
comprised of defense, emergency, health care, industrial, water treatment, educational, and other
facilities. Allen Decl. at 5, NPCA ECF No. 127-3. Without the two coal-fired units at the
Yorktown Power Plant which were scheduled for deactivation in 2015, Dominion would have
been in violation of mandatory federal grid reliability requirements, and there would have been a
high risk of rolling blackouts during peak electricity demand periods. Rowe Decl. at 9 4, NPCA
ECF No. 133-3. Dominion, PJM Interconnection L.L.C. (“PJM”), and the Virginia State
Corporation Commission proposed this project as the solution, and the Corps ultimately agreed
ta issue the permit after conducting an EA. The project became operational on February 26,
2019, thereby resolving the power emergency in the region. Jd. at ¥ 5.
Since its installation, the project has become a crucial source of electricity in the area.
Before it became operational, numerous measures had to be taken to stabilize the power supply.
14
The Virginia Department of Environmental Quality (“DEQ”) and the U.S. Environmental
Protection Agency (“EPA”) had to grant Dominion special permission to continue operating the
Yorktown units in violation of emissions limits. Letter from DEQ to Dominion at 1, NPCA ECF
No. 24-19; EPA, Jn the Matter of Virginia Electric and Power Company, AED-CAA-113(a)-
2016-0005, at 8-9, NPCA ECF No. 24-20. After receiving all possible regulatory extensions
available under the Mercury Rule, PJM applied to DOE for an emergency order under the
Federal Power Act to continue operating the Yorktown units when necessary. Letter from DOE
to PIM, NPCA ECF No. 24-21. DOE granted (and had to continually renew) the emergency
order until the project was energized, with the last emergency order expiring on March 6, 2019.
See Lazzaro Decl. at 4 6, NPCA ECF No. 22-5; Rowe Decl. at 4, NPCA ECF No. 133-3. In
total, the Yorktown units were used on 89 different days to address power shortages during
extreme hot or cold weather. Rowe Decl. at ¢ 4, NPCA ECF No. 133-3.
At this point, the Yorktown units are no longer a viable solution to the electric reliability
needs of the North Hampton Roads area. Jd. at § 7 (explaining that aging units can “no longer be
reliably operated for any extended period . . . without major repairs at significant costs and
time”). The evidence shows that the Yorktown units have failed and are no longer available to
solve the power shortage in the region should the project be removed. See id. at J 7.
Additionally, the 325-foot tall common stack used to vent emissions from units 1 and 2 required
repeated repairs due to its age, and at this point the stack’s potential for failure poses a safety risk
for workers at the site and could damage the remaining oil-fired Yorktown unit. That is why the
stack is currently undergoing the demolition process. Boyd Decl. at { 8. Essentially, the Court
finds that because the Yorktown coal units would no longer serve as a reliable backup in the
event that the project were shut down, there would be a serious risk of blackouts in the area.
15
Plaintiffs accuse defendants of overstating the importance of the proj ect as a regional
power source. Plaintiffs’ support for this accusation, however, is weak. For example, plaintiffs
rely heavily on the Declaration of Earl W. Shockley. That declaration, however, makes no
mention of the fact that the Yorktown units are no longer operational. See Shockley Decl., NPCA
ECF No. 130-5. By failing to take this crucial fact into account (and by simultaneously admitting
that the Yorktown units are crucial during times of high energy demand), Mr. Shockley fatally
undermines his own conclusions. See id. at § 7. The Court finds that defendants have not
overstated the importance of the project and that serious harm would likely result from its
absence.
Plaintiffs also argue that to the extent there would be any harm, eae harm is self-
inflicted and thus the Court should not consider it when analyzing the second Allied-Signal
factor. Essentially, plaintiffs accuse defendants of intentionally decommissioning the Yorktown
coal units in order to argue more effectively against vacatur. This is highly unlikely. If
defendants truly decommissioned the units in the hopes that it would sway this Court to find
vacatur unnecessary, they risked leaving the region without a stable power supply; this risk
would be significant considering that vacatur is the default and that it is defendants’ burden to
convince the Court to deviate from the standard remedy. See Allied-Signal, 988 F.2d at 150-51.
Moreover, Dominion had already planned to decommission these units long before receiving the
permit to build the project and well before plaintiffs filed this lawsuit, making it less likely that
their actions were manipulative. See Boyd Decl. at 6.
Of course, it is possible that defendants acted nefariously, but more than mere conjecture
is required before finding that to be the case. Additionally, even if the harm were self-inflicted,
defendants are not the ones who would suffer most from their own actions—the hundreds of
16
thousands of people in the region relying on this project as their power source would be the ones
who face the greatest consequences. It would be unjust to force all of those people to bear the
brunt of the harm when they are not responsible for its cause. Therefore, the Court’s findings
regarding the second Allied-Signal factor would remain largely unchanged even if the harm had
been self-inflicted.
In addition to the risk that hundreds of thousands of people will be left with an unreliable
power source if the permit is vacated, there is also a risk of massive waste. See Public Emples.
for Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1084 (D.C. Cir. 2016) (explaining that the
second AlliedSignal factor includes consideration of “social and economic costs”); Cal. Cmtys.
Against Toxics, 688 F.3d 989 at 994 (ordering remand without vacatur because under the second
Allied-Signal factor, vacatur would be “economically disastrous{]”). It is possible that after
completing the EIS, the Corps will decide to re-issue the permit for the project. Of course, the
Corps will not be permitted to merely rubber stamp its previous decision, but even after a proper
EIS, the Corps could potentially come to the same conclusion. If that were the case, large sums
of money would have been wasted. Tearing down the River Crossing Line would involve
dismantling seventeen steel lattice towers and removing 37.8 miles of conductor, 8.4 miles of
fiber optic shield wire, 32 solar panels and solar lighting systems, and all associated hardware.
Allen Decl. at {9 7-10, NPCA ECF No. 127-3. It would take at least six months to plan for and
mobilize the specialized manpower and equipment that this work requires, and the actual
removal ofthe lines and towers would take over a year, with the cost of removal totaling
approximately $46,000,000. Jd. at §J 11-12. If the Corps ultimately does decide to reissue the
permit after conducting an EIS, it will take one or two years as well as another $40,000,000 to
17
reinstall the lines and towers. Essentially, the amount of waste that could result from vacatur is
extreme.
Defendants have also highlighted other negative impacts of tearing down the project. For
example, removing the lines and towers would produce emissions from tugboats and heavy
equipment, which would negatively impact water quality and aquatic life in the area. Motion to
Remand to U.S. Army Corps of Engineers by Virginia Electric & Power Co. at 36-37, NPCA
ECF No. 127. Of course, it is possible that after completing the EIS, the Corps will decide to
select an alternative energy source and remove the project anyway, in which case these harms
would still result. At least, however, these harms would not occur only for the project to be
rebuilt shortly thereafter.
Plaintiffs further argue that even if there would be actual harm as a result of vacatur, it
pales in comparison to the harm plaintiffs suffer while the lines and towers remain in place.
Allied-Signal, however, does not require ignoring the harm that would result from vacatur simply
because the harm to plaintiffs would continue to exist if the case were remanded without vacatur.
Quite simply, the negative effects of keeping the project in place while the Corps conducts its
EIS do not outweigh the aforementioned harms that will occur if vacatur is ordered. For all of
these reasons, the second Allied-Signal factor forces the Court to conclude that vacating the
permit would be inappropriate.
CONCLUSION
For the aforementioned reasons, the Court concludes that waiver, forfeiture, and judicial
estoppel are all inapplicable here. Additionally, the Court finds that the proper remedy in this
18
case is remand without vacatur. Therefore, the Court will GRANT defendants’ motion for
remand to the U.S. Army Corps of Engineers without vacatur.
The Court will also ORDER the U.S. Army Corps of Engineers to complete the
Environmental Impact Study that is currently underway in accordance with the D.C. Circuit’s
prior ruling.
A separate Order accompanies this Memorandum Opinion.
. Date: w/e lia | | e. a Aovlete
Royce C. Lamberth
United States District Court Judge
19