Construction Of Utility Infrastructure: In Search Of A ‘Reliable' Process

As if developers of critical infrastructure and utility facilities don't have enough problems in getting projects built and operating, a battle currently playing out before the DC Circuit Court of Appeals and the District Court for the District of Columbia demonstrates the tough and risky decisions that must often be made to ensure reliable service to customers is maintained.

In National Parks Conservation Association v. Todd T. Semonite, Lieutenant General, et. al,1 Virginia Electric Power Company (VEPCO) retired two coal-fired electric generating facilities that previously served a portion of southeastern Virginia in order to comply with the Environmental Protection Agency's mercury and air toxic standards established under the Clean Air Act. However, to ensure that customers formerly served by these retired plants had needed electricity, VEPCO proposed to build a transmission line to address a possible electric reliability emergency. In fact, absent the new transmission line, the regional transmission organization, PJM, planned to impose rolling blackouts in this portion of Virginia to avoid multi-state electric grid collapse.

In 2013, VEPCO applied to the United States Army Corps of Engineers (Corps) to obtain a permit for its transmission project in accordance with the Corps' jurisdiction over certain projects concerning "waters of the United States."2 The permit was for VEPCO to construct a new electrical substation and two transmission lines. The specific line giving rise to the litigation was intended to run for eight miles, four miles of which would cross the James River and go through an historic district encompassing Jamestown and other historic locations.

Before issuing VEPCO the permit, the Corps was required to satisfy several statutory obligations. First, under the National Environmental Protection Act (NEPA), the Corps, as a federal agency issuing a construction permit, opening new lands to drilling, or undertaking any other "major" project, was required to evaluate the project's environmental consequences, including the impacts it might have on "important historic . . . aspects of our national heritage."3 In particular, NEPA required the Corps to consider alternatives to VEPCO's transmission project and to prepare an "environmental impact statement" if the project would "significantly affect the quality of the human environment."4

Second, under the Clean Water Act, the Corps was required to determine that no "practicable...