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.

After the First Circuit Court of Appeals temporarily enjoined commencement of construction for a segment of a power transmission line project in Maine, the parties completed briefing on the plaintiffs’ appeal of a district court’s denial of their motion for a preliminary injunction. The plaintiffs—who challenged the Clean Water Act Section 404 permit granted by the U.S. Army Corps of Engineers—argued that the scope of the Corps’ NEPA analysis was “overly narrow,” leading the Corps to give inadequate attention to many of the transmission line’s impacts, including greenhouse gas emissions. The federal defendants argued that the Corps’ jurisdiction was narrow and touched only construction activities related to wetlands and vernal pools. The defendants contended that the Corps did not have sufficient control over the pipeline to “federalize” the project and that it therefore properly limited the scope of its NEPA review.

The amici led by Calpine Corporation argued that "[t]he Project is likely to result in no overall reduction in GHG emissions across the interconnected electricity grid, but will merely result in a reshuffling of zero-carbon power supplied by existing resources in Québec, to new customers in New England."