Sierra Club v. U.S. Army Corps of Engineers

The First Circuit Court of Appeals affirmed the denial of a preliminary injunction to block construction of a segment of an electric transmission power corridor in Maine that would be part of a project to carry electricity from Quebec to Massachusetts, including electricity generated by hydropower. The First Circuit found that the plaintiffs did not show a likelihood of success on the merits of any of their claims under the National Environmental Policy Act (NEPA), including their claim that the U.S. Army Corps of Engineers acted arbitrarily and capriciously when it concluded that the overall project was not a “major federal action” pursuant to NEPA. Because the First Circuit rejected the plaintiffs’ arguments regarding the scope of the NEPA review, the court also concluded that the plaintiffs’ contention that the greenhouse gas reductions from the overall project were overstated did not show “controversy” that would require the Corps to prepare an environmental impact statement.

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The federal district court for the District of Maine rejected environmental organizations’ challenges to U.S. Army Corps of Engineers and U.S. Department of Energy authorizations for an electrical power transmission corridor intended to transmit electric power from non-fossil fuel generating facilities in Canada to the Boston area. The court first found that the Corps’ issuance of a permit complied with the Clean Water Act. Among the arguments rejected by the court was a contention that the Corps incorrectly determined that the project was in the public’s interest because it would have a positive impact on greenhouse gas emissions. The court found that it was appropriate for the Corps to consider the transmission line’s impacts on energy use and greenhouse gas emissions in its public interest review under the Clean Water Act even if the Corps had refused to consider environmental impacts beyond the impact of dredging and filling activity in its National Environmental Policy Act review (NEPA). The court also found that the Corps had considered and rejected evidence that the project would result in higher greenhouse gas emissions. In addition, the court rejected claims under NEPA, including a contention that because of the debate regarding the project’s effect on greenhouse gas emissions, these effects were “highly controversial” and weighed in favor of preparing an environmental impact statement.

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The federal district court for the District of Maine declined to issue a preliminary injunction barring construction of the New England Clean Energy Connect (NECEC), an electricity transmission project to connect the New England energy grid with non-fossil fuel sources of electric power. The court found that plaintiffs had not demonstrated they were likely to prevail on their arguments that the U.S. Army Corps of Engineers violated the National Environmental Policy Act and failed to take concerns about impacts on waters of the United States into account. The court further found that the equitable interests of the NECEC developer undermined the plaintiff’s request for preliminary relief and that the public interest was “not monolithic,” given the asserted benefits of the NECEC project, including reducing rates, improving reliability, and reducing regional greenhouse gas emissions.