Captain John Smith, Our Nation’s History and Environmental Impact Statements under NEPA

If Captain John Smith is up there keeping an eye on how we are doing with his New World discoveries, he might appreciate a recent ruling concerning protections of a familiar area of the James River, a “region of such singular importance to the nation’s history.” Recently, the D.C. Circuit reversed the lower court and held that modern electricity and its necessary power transmission lines have some big hurdles under the National Environmental Protection Act (NEPA) when it comes to the historic James River navigated by Captain John Smith over 400 years ago. National Parks Conservation Association v. Semonite, No. 18-5179 (D.C. Cir. March 1, 2019).

NEPA requires federal agencies to take a serious look in specific, documented ways at the environmental and cultural impacts that would result from proposed construction, drilling or other major projects. The purpose of NEPA is to “create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a). The NEPA analysis must include consideration of historic resources. After providing a brief history lesson, the court explained that the U.S. Army Corps of Engineers did not comply with NEPA when it found “no significant impact” by miles of transmission lines and towers in this historically significant area of the James River. The court directed the Corps to vacate the utility’s permit and to prepare an Environmental Impact Statement (EIS) under NEPA.

Of course, most major rivers, including the majestic Ohio River outside my office window, have important historical significance for our communities and even our country. But the James River is designated as “America’s Founding River” by Congress and a 50-mile stretch is the only congressionally-protected water trail. The utility project of seventeen steel transmission towers, each about 250 feet tall, would cover 8 miles of the area. Those taking in Jamestown and other historic sites along the river, would be staring at about half of the towers with their associated transmission lines.

The record was packed with comments from many, including other federal agencies recognized by the Act as those with “special expertise,” who consistently attacked the Corps’ methodologies in its conclusion that no EIS was necessary. This opposition weighed in favor of the project’s “genuine and extremely controversial” nature, a factor pointing to the need for a closer look under an EIS. The Corps tried to avoid this controversy factor (and two related factors) by arguing that a letter by Interior Secretary Zinke later in the process was somehow controlling. The court refuted the Corps’ attempt and reasoned that the Zinke letter could not undo the Park Service’s previous comment that an EIS was required, and it certainly could not undo all of the other unyielding oppositions to the project. Most importantly, the Zinke letter did not have much in it on the question before the court: “whether the Corps acted arbitrarily and capriciously in declining to prepare an EIS.” It appears that the Zinke argument backfired, as two Interior Secretaries having basically opposite views on the same project actually supported the controversy factor in favor of requiring an EIS.

“The Corps misses the point” says the court when it comes to these views of the James River. The purposes of Congress in designating this resource is clear: to preserve the “unspoiled and evocative landscape” viewed by Captain John Smith and the Native Americans whose populations were devasted by what followed. As the Corps is forced to consider alternatives under NEPA’s EIS requirements, modern electricity may end up with an alternative route, one well outside of the historical perspective of the New World.