Mere days after Dominion Energy powered up its new transmission line across the James River from Surry to Jamestown, VA, a ruling by a federal court of appeals cast the controversial infrastructure’s future in doubt.These transmission line towers, located near the James City County side of the James River, are shown here under construction in the summer of 2018. (Jamie Brunkow)

On March 1, the U.S. Court of Appeals for the District of Columbia issued an opinion overturning the project’s key permit from the U.S. Army Corps of Engineers on the grounds that the agency did not meet its obligations under the National Environmental Protection Act and directing the Corps to prepare an environmental impact statement on the 17-tower, 500-kilovolt line.

“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,” the three-person court’s opinion, penned by Judge David S. Tatel, reads.

Furthermore, it states: “Important questions about both the Corps’ 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.”

The decision was the culmination of a battle that has raged since 2013, when Dominion applied to the U.S. Army Corps of Engineers for a permit to construct what became known as the Surry-Skiffes Creek-Whealton project. The plan called for the construction of not only a 500-kV line passing just south of Jamestown near Hog Island but also a switching station in James City County and a 230-kV line running down to Hampton.

The Surry-Skiffes Creek portion of the project crossing the James River proved the most controversial, requiring the construction of 17 steel-lattice towers between 127 and 296 feet in height across the waterway designated by the U.S. Congress as “America’s Founding River.”

Dominion’s application justified the project on the basis of “continued load growth” in the northern part of the Hampton Roads region, “coupled with aging infrastructure and increasingly stringent environmental requirements on emissions.”

These more stringent environmental regulations included new standards set by the U.S. Environmental Protection Agency on ozone and sulfur dioxide emissions, coal combustion residuals and mercury, among other emissions.

The Surry-Skiffes Creek-Whealton project sparked broad protest from not only environmental groups but also federal agencies, including the National Park Service, the federal Advisory Council on Historic Preservation and the Department of Energy’s Argonne National Laboratory.

The heart of this opposition centered on the Army Corps’ conclusion that the transmission line across the James River would have “no significant impact” on surrounding historic resources such as Historic Jamestowne, Carter’s Grove and the Captain John Smith Chesapeake National Historic Trail.

Based on this finding, the Corps claimed that it did not need to prepare a formal environmental impact statement and could instead rely on a more basic “environmental assessment” — a contention disputed by opponents of the project and highlighted in the original suit against the Army Corps, which was brought by the National Parks Conservation Association, National Trust for Historic Preservation and Association for the Preservation of Virginia Antiquities.

In its March 1 ruling, the U.S. Court of Appeals for the District of Columbia found that the Corps’ determination of “no significant impact” was “arbitrary and capricious.”

The ruling relied heavily on the criticisms offered by other federal agencies, including the National Park Service’s finding that the project “would forever degrade, damage, and destroy the historic setting of these iconic resources” and the Argonne National Laboratory’s finding that the Corps’ environmental analysis had been “scientifically unsound” and “completely contrary to accepted professional practice.”

“These are hardly the hyperbolic cries of ‘highly agitated,’ not-in-my-backyard neighbors ‘willing to go to court over the matter,’ ” the Court of Appeals wrote regarding its decision. “Instead, they represent the considered responses — many solicited by the Corps itself — of highly specialized governmental agencies and organizations.”

After the Court handed down its opinion, Dominion Energy issued a statement saying: “The Corps of Engineers spent four years on its environmental assessment of this project, going above and beyond what was required. We are disappointed this ruling dismisses that effort.”

The ruling does not affect the immediate operation of the Skiffes Creek transmission line, which Dominion Energy communications specialist Jeremy Slayton confirmed is “energized and … sending power and electricity to the 600,000 people who live and work on the peninsula.”

Looking forward, the National Trust for Historic Preservation on March 7 announced that it “intends to push Dominion Energy to deconstruct the towers and find an alternative solution that protects the historic landscape and resources along the James River.”

Slayton said that at present, Dominion is “not really speculating on what the ultimate ruling means for the line.”

The Court of Appeals ruling does not appear to affect the roughly $90 million in mitigation payments Dominion made as part of an agreement with state and federal agencies. Slayton confirmed that all of those funds have already been paid out.

“Since the mitigation dollars were meant to offset any disturbances or damages associated with the work on the transmission line which has already been completed, we doubt that the appeals court decision will have any effect on the mitigation funds,” wrote Joe Maroon, executive director of the Virginia Environmental Endowment, which received about $16 million from Dominion, in an email. “We haven’t received any word to the contrary.”

Chesapeake Conservancy president and CEO Joel Dunn commented that the transmission line controversy revealed the need for states to “take a much more comprehensive approach” to large-scale linear energy projects.

In 2018, the Environmental Law Institute issued a report for the Chesapeake Conservation Partnership, a group of nonprofits and government agencies that works to protect the region’s landscapes, that sought to offer states the tools to assess the impacts of proposed projects of this type and mitigate their conservation effects.

That report, Dunn said, emerged directly from the Skiffes Creek proposal as the Conservancy Partnership realized that the Army Corps of Engineers would likely issue the permit for the transmission line.

“The state of Virginia had numerous opportunities to impact this power line before it even got to the Army Corps of Engineers,” Dunn said. “I don’t fault anyone who was in charge, because I think they did the best they could with the policies that were in place at the time, but I think there’s an opportunity moving forward to improve these state-level policies even before [a permit] gets to the federal level.”

The definition of state-level landscape objectives and new approaches to permitting could help avoid siting controversies, the report suggests.

“We need to think like the Native Americans,” Dunn said, “and think seven generations ahead.”