Dominion Energy, Virginia’s monopoly investor-owned electric-and-gas distribution company, has flipped its middle finger at the U.S. Court of Appeals for the D.C. Circuit. What’s next?
This is a story both comic and tragic, as it displays goofy-footed behavior by the Trump administration’s Army Corps of Engineers, and remarkable arrogance by the utility company. It was surfaced by the Washington Post on Thursday, with the headline: “Feds reconsidering permit for power lines near historic Jamestown, but there’s a hitch: They’ve already been built.”
Dominion had been planning for years to build a new, 500-KV transmission line from the company’s Surry nuclear plant across the James River to Jamestown on the Atlantic coast, known as the Surry-Skiffes Creek power line. The new 7.7 mile line was in part designed to compensate for the closure of a large two-unit coal-fired plant in Yorktown, Va.
Locals resisted the power line, claiming it would impinge on historical resources in the history-rich Jamestown area and cross a pristine portion of the river. The project required a construction permit from the Army Corps of Engineers, which meant the Corps had to conduct an environmental review of the project, which includes judging the impact on historical properties. The Corps issued a “finding of no significant impact,” meaning it did not need to perform a rigorous and costly environmental impact statement, and granted Dominion a permit to build.
The project’s opponents immediately sued in the federal district court, which ruled in favor of the Corps and Dominion. The opponents then appealed to the D.C. Circuit. In the meantime, Dominion began, and completed, building the project, spending some $400 million in the process, according to the company, which originally projected the cost at about $178 million.
Oops! Last March 1, the D.C. appeals court reversed the lower federal court. A unanimous three-judge panel consisting of Merrick Garland, David Tatel, and Patricia Millett ruled that the Army Corps’ decision to eschew a full-fledged environmental impact statement 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.”
Dominion had already gone forward with the project. It was energized on Feb. 26, two days before the appeals court issued its remand.
Dominion and the Corps then asked the appeals court to reconsider the remand because, as the Post put it, “it was, um, a little late for that.”
The court reacted appropriately, writing, “Neither petitioner bothered to advise us that construction of the project had been completed and the transmission lines electrified the week before we issued our opinion.” The three-judge panel noted that the utility assured the district court that if the permit got revoked, the towers would come down. Now Dominion was arguing that the remedy it had agreed to would cause “disruption.”
The clearly disgruntled judicial panel said, “We find the foregoing more than a little troubling. Had the Corps and Dominion said all along what they say now,” the court might have enjoined construction, but Dominion was putting “an even heavier thumb on the scale” by citing the $400 million fait accompli.
The late Leo Rosten defined the wonderful Yiddish word “Chutzpah” as “gall, brazen nerve, effrontery, incredible ‘guts’, presumption plus arrogance such as no other word and no other language can do justice to” and illustrated it as “that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.”
Dominion’s move fits the definition. Kevin Curtis, vice president for electric transmission, told the Post, “We knew the risk. Hindsight is 20-20…but I wouldn’t hesitate to do it again.”
What will the court do about Dominion’s end run around the law? Stay tuned.
— Kennedy Maize