Opinion
Civil No. 19-cv-868-JL
10-06-2019
CONSERVATION LAW FOUNDATION v. U.S. ARMY CORPS OF ENGINEERS, et al.
Lisa Snow Wade, Jeremy David Eggleton, Nathaniel Burr Morse, Orr & Reno PA, Concord, NH, for Conservation Law Foundation. Devon L. McCune, US Dept of Justice, Denver, CO, Kate R. Bowers, US Department of Justice, James T. Banks, Pro Hac Vice, Mary Anne Sullivan, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Wilbur A. Glahn, III, McLane Middleton, Manchester, NH, Barry Needleman, McLane Middleton, Concord, NH, Elizabeth A. Maldonado, Pro Hac Vice, Eversource Energy Service Co., Berlin, CT, for U.S. Army Corps of Engineers, et al.
Lisa Snow Wade, Jeremy David Eggleton, Nathaniel Burr Morse, Orr & Reno PA, Concord, NH, for Conservation Law Foundation.
Devon L. McCune, US Dept of Justice, Denver, CO, Kate R. Bowers, US Department of Justice, James T. Banks, Pro Hac Vice, Mary Anne Sullivan, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Wilbur A. Glahn, III, McLane Middleton, Manchester, NH, Barry Needleman, McLane Middleton, Concord, NH, Elizabeth A. Maldonado, Pro Hac Vice, Eversource Energy Service Co., Berlin, CT, for U.S. Army Corps of Engineers, et al.
MEMORANDUM ORDER
Joseph N. Laplante, United States District Judge
This is an administrative and environmental law action concerning whether a federal agency's issuance of a construction permit complied with applicable federal law. Defendant Public Service Company of New Hampshire d/b/a Eversource Energy ("Eversource") seeks to run underwater electric cables beneath the floor of Little Bay, in the New Hampshire seacoast region, as part of a broader plan to support the reliable delivery of electric power. In May 2019, defendant U.S. Army Corps of Engineers concluded that the project would not have significant impact on the environment and thus granted Eversource a permit to begin work on the project. Plaintiff Conservation Law Foundation contends that in granting this permit, the Corps failed to comply with procedures required by the National Environmental Policy Act, the Clean Water Act, and other federal laws. It therefore moved to enjoin Eversource from installing the cables pending further administrative proceedings, which CLF contends, are required under federal law.
On September 6, 2019, the court held a day-long emergency hearing on the CLF's request to temporarily restrain a test run of the "jet plow" method for running the cables, scheduled for September 9. After denying emergency relief, CLF requested an expedited hearing on the project as a whole, which was scheduled to begin on October 5. Eversource represented that further delays requiring its barge and equipment to remain idle would increase the cost of the project by $125,000 per day of delay. The court therefore suspended an ongoing criminal jury trial to hold a preliminary injunction hearing on October 9. Due to the 9th being a religious holiday for at least one counsel of record, the court suggested, and then approved, that the parties conduct trial depositions in advance and submit those depositions into evidence. The hearing was completed on October 9, 2019.
After considering the parties’ briefs and oral arguments, the court finds that CLF has failed to establish it is entitled to the preliminary injunctive relief it seeks. In short, CLF has failed to show that it is likely to succeed on the merits of its administrative law claims by proving that the Corps’ issuance of the permit was arbitrary or capricious and thus in violation of the Administrative Procedure Act. Relatedly, CLF has also failed to show a likelihood, rather than a possibility, of irreparable harm. Given these insufficient showings, and the competing equities at play (including the public interests represented by CLF and the Corps), the court denies CLF's motion for preliminary relief.
I. Background
The parties have stipulated to the following facts.
A. The Little Bay project
Plaintiff Conservation Law Foundation, a not-for-profit organization "dedicated to solving environmental problems that threaten the people, communities and natural resources of New Hampshire and other New England States," seeks to enjoin defendant Eversource from installing underwater cables beneath the floor of Little Bay, which lies between Durham and Newington, New Hampshire, as one part of its planned Seacoast Reliability Project. Little Bay is part of the Great Bay estuary, which has been designated an estuary of national significance under Section 320 of the Clean Water Act. The Great Bay estuary provides a diversity of essential habitats, including eelgrass, salt marsh, mudflats, and oyster beds, including several commercial oyster aquacultural sites.
Compl. (doc. no. 1) ¶ 10. "CLF is a member-supported organization, with more than 600 members in New Hampshire, and nearly 5000 members throughout New England. CLF's members include individuals who reside in communities that will be affected by the proposed Project that is the subject of this action, and who will themselves be adversely affected. [CLF's] members include individuals who reside in Durham on property adjacent to Little Bay, in close proximity to the Project, and who use and enjoy Little Bay for recreational and aesthetic purposes; individuals who are deeply concerned about the impacts of the proposed transmission line burial and associated use of concrete mattresses in Little Bay; and an individual who owns and operates a commercial shellfishing company that raises in oysters in Little Bay, who is greatly concerned about the [Seacoast Reliability] Project's impacts to Little Bay and his company's aquaculture business." Id.
The administrative record varies between referring to the cables as a singular "cable" and the plural.
See Joint Timeline (doc. no. 54) ¶ 3. As used by the court herein, "Project" (capitalized) generally refers to the Seacoast Reliability Project.
Joint Statement of Agreed Facts (doc. no. 18) ¶ 61.
Id. ¶ 62.
The Project as a whole involves the construction a new 12.9-mile 115kV electric transmission line between substations in Madbury and Portsmouth, New Hampshire. As to Little Bay, the Project proposes "(1) the removal of portions of existing, unutilized cables owned and formerly operated by Eversource, (2) the installation of three new cables by the use of a jet plow, hand-jetting, and trenching, and (3) the installation of concrete mattresses in areas where the required full burial depth of 42 [inches] cannot be achieved." In April 2016, Eversource submitted an application to the New Hampshire Department of Environmental Services ("NHDES") and defendant U.S. Corps of Engineers for permits for the Project. The same day, Eversource also applied to the New Hampshire Site Evaluation Committee ("NHSEC") for a Certificate of Site and Facility under N.H. Rev. Stat. ch. 162-H. For the underwater cables in Little Bay, Eversource proposed installing them by means of jet plowing and hand-jetting. As described by Eversource:
Joint Timeline ¶ 2.
Id. ¶ 3.
Id. ¶ 2.
Id. ¶ 4.
Joint Statement of Agreed Facts ¶ 64.
The jet plow operation will utilize high-volume water pressure to temporarily liquefy the soft sediments immediately ahead of the plow blade.... The submarine cable will feed from the barge, pass through the back of the blade, and into the liquefied sediments. The majority of the sediment will settle into the trench leaving the cable installed at the desired depth.
The jet plow will reach within approximately 600 feet of the east shore, at which time the water depth will not allow further advancement of the barge towards the shoreline. At this point, the submarine cable will be unloaded from the plow, and ... the excavated cable landing trench will be buried by divers utilizing water jet hoses and an excavator in the nearshore intertidal area. The intertidal areas that will be subject to diver burial and excavation will be enclosed with silt curtains.
Id.
B. New Hampshire agency proceedings
In February 2018, "NHDES issued findings based on technical review of the Project and recommended that Eversource conduct a jet plow trial run across a portion of Little Bay ‘to provide useful information about [Eversource's] assumptions regarding the jet plow.’ " NHDES revised its findings in October 2018. In January 2019, NHSEC issued its Decision and Order Granting Eversource's Application for a Certificate of Site and Facility, which approved the Project, "including the installation of the three cables across Little Bay by means of jet plowing, hand-jetting, and trenching, and the installation of up to 8,681 square feet of concrete mattresses." In doing so, NHSEC "ordered, inter alia, that the Certificate was ‘conditioned upon compliance with the Section 404 General Permit (the New Hampshire Programmatic General Permit) and the 401 Water Quality Certification.’ " Further, the Certificate "imposed as a condition the requirement that Eversource develop a jet plow trial run plan to be approved by NHDES and to implement the approved jet plow trial run plan at least 14 days prior to the scheduled start of the submarine cable installation in Little Bay."
Joint Timeline ¶ 5 (quoting Compl. ¶ 85).
Id. ¶ 5.
Id. ¶ 8.
Id. ¶ 8.
Id. ¶ 8 (quoting Admin. R. at 15904-05).
Id. ¶ 9 (citing Admin. R. at 15905).
CLF moved for rehearing of the NHSEC Order in March 2019, which NHSEC denied the following month. In May 2019, "CLF filed a Notice of Appeal with the New Hampshire Supreme Court challenging NHSEC's Certificate as it relates to the installation of concrete mattresses in Little Bay without Eversource having obtained a grant of right from the Governor and Executive Council." This appeal remains pending. In August 2019, the New Hampshire Supreme Court denied CLF's request for an immediate stay of NHSEC's Decision and Certificate, which also approved the jet plow trial run.
Id. ¶ 10. On April 11, 2019, NHSEC issued its Rehearing Order (together with the Order, the "Order") denying CLF's Motion for Rehearing and the Certificate became final. Id. ¶ 13.
Id. ¶ 23.
Id. ¶ 43.
See Section I.D, infra, at 7.
C. Army Corps of Engineers proceedings
While New Hampshire agencies assessed Eversource's requests for a wetlands permit and a site and facility certificate, the Corps assessed Eversource's request for permits under the National Environmental Policy Act and the Clean Water Act. In March 2019, CLF wrote to the Corps to object "to the use of the current Department of the Army General Permits for the State of New Hampshire (General Permit No. NAE-2016-02415) for the [P]roject, asserting that the [P]roject must proceed under an individual permit." In April 2019, the Corps issued a Public Notice requesting comments to be used "in the preparation of an Environmental Impact Statement or Environmental Assessment under the National Environmental Policy Act ("NEPA") and to determine the need for a public hearing and the overall public interest of the proposed activity." In July 2019, the Corps decided that no public hearing was necessary. The next day, the Corps "signed Permit No. NAE-2015-00665 for the Project as well as a Memorandum for Record including the Environmental Assessment and Statement of Findings ("EA/SOF") for the Project's individual permit," which determined, among other findings, that the Project did not necessitate an environmental impact statement under NEPA.
Joint Timeline ¶ 11 (citing Admin. R. at 16180).
Id. ¶ 16.
Id. ¶ 29.
Id. ¶ 30.
D. Procedural history
In August 2019, CLF filed its Complaint for Declaratory Judgment and Injunctive Relief and a Motion for Temporary Restraining Order and Preliminary Injunction. In September 2019, the court set an expedited briefing and hearing schedule to consider CLF's emergency request to preliminarily enjoin a jet plow trial run required by NHDES, which was scheduled to being 3 days after the hearing date. After a day-long hearing, the court orally denied CLF's emergency request for the reasons stated on the record, including that CLF had failed to show that the jet plow trial would likely cause irreparable harm. The court then set an expedited schedule for CLF's remaining requests for preliminary relief against the entire Little Bay Project, and permitted the parties to conduct and submit into evidence trial depositions in advance of the October 9 hearing held during a single-day suspension of a criminal jury trial.
See doc. no. 1.
See doc. no. 3.
See Sept. 6, 2019 Minute Entry for motion hearing proceedings; Sept. 6 Tr. (doc. no. 36).
See Sept. 27, 2019 Endorsed Order adopting Assented to Joint Procedural Order (doc. no. 39).
On September 9, 2019, Eversource conducted the jet plow trial run. On September 17, 2019, Normandeau Associates, on behalf of Eversource, submitted the "Eversource Energy Seacoast Reliability Project Jet Plow Trial Summary Report" to NHDES (the "Jet Plow Trial Report"). The Report was sent to counsel for CLF in the morning of September 18, 2019. On October 2, 2019, Eversource and Normandeau submitted a revised report. On October 4, NHDES's Water Quality Planning Section wrote to Administrator of NHSEC, "recommend[ing] that Eversource Energy be allowed to install the submarine cable under Little Bay by jet plow."
Joint Timeline ¶ 48.
Id. ¶ 49.
Id.
Id. ¶ 52.
Id. ¶ 54.
E. National Environmental Policy Act
The National Environmental Policy Act ("NEPA") "promotes its sweeping commitment to ‘prevent or eliminate damage to the environment and biosphere’ by focusing Government and public attention on the environmental effects of proposed agency action." Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting 42 U.S.C. § 4321 ). "NEPA itself does not mandate particular results, but simply prescribes the necessary process" that an agency "consider all significant environmental impacts before choosing a course of action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; Sierra Club v. Marsh, 872 F.2d 497, 502 (1st Cir. 1989).
As part of this process, NEPA regulations require an agency to prepare an in-depth Environmental Impact Statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." Winter v. Nat. Res. Def. Council, 555 U.S. 7, 16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing 40 C.F.R. §§ 1508.9(a), 1508.13 (2007) ). If an agency determines, however, as the Corps did here, that the proposed action will not have a significant impact on the environment," it may instead prepare "a shorter" Environmental Assessment ("EA") and a Finding of No Significant Impact ("FONSI"). Id. (citing 40 C.F.R. §§ 1508.9(a), 1508.13 (2007) ). "There is no universal formula for what an EA must contain and consider;" the regulations state that they should " ‘include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.’ " See Friends of Congaree Swamp v. Fed. Highway Admin., 786 F. Supp. 2d 1054, 1062 (D.S.C. 2011) (quoting 40 C.F.R. § 1508.9 ).
F. Clean Water Act
The CWA establishes a comprehensive program designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this goal, the CWA prohibits the discharge of pollutants, including dredged or fill material, into navigable waters unless authorized by a CWA permit. 33 U.S.C. § 1311(a). The CWA defines "navigable waters" as "waters of the United States," which, in turn, is defined by regulation to include certain wetlands. 33 U.S.C. § 1362(7) ; 33 C.F.R. § 328.3(a), (b). Section 404 of the CWA authorizes the Corps to regulate discharges of dredged and fill material into waters of the United States through the issuance of permits. 33 U.S.C. § 1344. The Corps may issue individual permits or general permits. See 33 U.S.C. § 1344(a), (e). Individual permits are issued on a case-by-case basis after a process involving site-specific documentation and review, opportunity for public hearing, public interest review, and a formal determination. See generally 33 C.F.R. Pts. 323, 325. In conducting a public interest review for an individual permit, the Corps balances "benefits which reasonably may be expected to accrue from the proposal" against the proposal's "reasonably foreseeable detriments." 33 C.F.R. § 320.4(a)(1).
II. Findings of fact
1. On April 12, 2016, Eversource applied to NHDES for a wetlands permit for the Project. The same day, Eversource applied for a Clean Water Act permit from the Corps.
See Admin. R. at 23052.
See Joint Timeline ¶ 2.
2. As part of Eversource's alternatives analysis for a Corp-issued permit under the Clean Water Act, Eversource submitted its NHDES application for a wetlands permit (and thus, the analysis therein).
See Admin. R. at 23052.
3. The administrative record before the Corps included, among other things, Eversource's Application for Certificate of Site and Facility (including pre-filed testimony), Eversource's Wetlands Permit Application submitted to NHDES (which included an analysis of alternatives), the analysis of and determinations made by ISO-NE regarding the need for the Seacoast Reliability Project, the NHSEC Decision and Order Granting Application for Certificate of Site and Facility, comments submitted by Conservation Law Foundation ("CLF") to the Corps, and Eversource Energy's response to CLF's comments. ("ISO New England is the independent, not-for-profit company authorized by the Federal Energy Regulatory Commission (FERC) to perform three critical, complex, interconnected roles for the region spanning Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and most of Maine." ).
See id. at 24164.
See id. at 23052.
Admin. R. at 19800.
See id. at 15560.
See id. at 21137.
See "What We Do," ISO-New England, https://www.iso-ne.com/about/what-we-do/three-roles (last visited October 11, 2019).
4. During the public comment period for Eversource's permit application, the Corps received comments from CLF, dated May 23, 2019, which advocated for additional consideration of alternatives to Little Bay, particularly the Gosling Road alternative. The Corps also received responsive comments from Eversource.
See id. at 20309.
See id. at 21137.
5. Based upon the entire administrative record, the Army Crops granted Eversource an individual permit for the Little Bay transmission route on July 2, 2019.
See Admin. R. at 21318.
6. CLF sought injunctive relief the following month on August 22, 2019, almost two months after the Corp issued the permit, and just more than 2 weeks before Eversource was scheduled to begin the jet plow trial.
See docs. no. 3-1, 11.
Alternative analysis facts
7. Prior to submitting applications to NHDES and the Corps, Eversource analyzed potential alternative routes for connecting the Madbury and Portsmouth substations.
See Pre-Filed Testimony of James Jiottis (April 16, 2016), Admin. R. at 24373–83.
8. Eversource's application to NHDES identified three alternatives to constructing the underwater cables across Little Bay: a Northern Route over the Great Bay estuary, a Middle Route across Little Bay, and a Southern Route below the Great Bay estuary.
See App. for Certificate of Site and Facility, Admin. R. at 24238, 21273-79; see also Wetlands Permit App., Admin. R. at 23136.
9. Eversource also investigated potential routes along the Spaulding Turnpike and Route 4 in New Hampshire. Eversource concluded, however, that both route options should be eliminated from further consideration because: (1) space constraints for co-locating a transmission and construction presented safety challenges associated with traffic density, (2) Eversource would have to acquire additional rights from New Hampshire Department of Transportation, and (3) there were other potential viable and less costly route alternatives.
See Admin. R. at 24238; see also id. at 23136.
10. Eversource's application to NHDES made the following representations about the Northern Route:
a. "The Northern Route Alternative would have utilized existing transmission corridors hat travel east from Madbury, New Hampshire into Elio Maine, turn to head southeast to Kittery, Maine and then return to Portsmouth, New Hampshire."
b. "Primarily, the 12.5 mile long Northern Route was rejected because 11.5 miles of the existing 115kV and 345kV transmission lines within the existing corridor would need to be relocated and rebuilt to accommodate the new line[.]"
c. "The relocation and rebuild for a significant portion of the new line would increase cost, add one or more years to the overall project schedule and could potentially jeopardize the stability of the electric system in the region during construction because the existing transmission lines would have been removed from service for extended periods of time."
d. "[11.8] miles/acres of additional (ROW) would be needed. To secure these rights, [Eversource] would have to engage in landowner discussion along signification portions of the route in both the State of New Hampshire and State of Maine to purchase the necessary rights. Such efforts which would increase costs and extend the project timeframe."
e. "In particular, the existing corridor in and around Kittery Maine presented severe constraints for the construction and operation of an additional 115kV transmission line. This route also had two significant water crossings over the Piscataqua
Id. at 23137, 24238-39.
Id.
Id.
Id.
River, which would add to the complexity and cost of this route."
11. Eversource's application to NHDES made the following representations about the Southern Route:
a. "The Southern Route Alternative would have traveled south from Madbury until it reached Stratham, New Hampshire, where the line would head east into Greenland, New Hampshire, and eventually turn north into Portsmouth."
b. "The Southern Route was rejected because it would likely create more voltage and reliability issues than it would solve."
c. "The Southern Route Alternative was almost twice the length of the Northern Route and the Middle Route, approximately seven (7) miles longer, which would result in greater ‘line-loss’ and inefficiency."
d. As the length of the line increases, the cost of the project increases significantly. Further, this route would require construction of an additional capacitor bank at the Rochester or Madbury substation, which would not be required for the other routes. The additional capacitor bank would also increase costs."
e. "The Southern Route also presented ... greater environmental impacts to wetlands and State-designated prime wetlands in the southern sections of the State."
Id. at 23138.
Id.
Id.
Id.
Id.
12. Eversource selected the Middle Route Alternative as its preferred route because it concluded that the Middle Route "maximize[d] the use of the existing linear right of way that already contains existing electric utility lines for the entire route, including the existing submarine cable corridor through Little Bay."
Id. at 24240; see also id. at 23138.
13. In addition, Eversource selected the Middle Route Alternative because it concluded the Middle Route "required the least amount of additional land rights, minimized and mitigated impacts to the environment and historical resources, and maximized the electrical reliability of the regional electrical system while addressing the needs in a cost-effective manner."
Id. at 24240; see also id. at 23138.
14. Eversource did not consider alternative crossings in Little Bay after concluding that alternative crossings would have required the acquisition of new property rights and the creation of a new utility corridor.
See id. at 24240.
15. In support of its applications, Eversource also submitted to NHSEC sworn testimony from its employees explaining in greater detail the representations about costs, engineering challenges, system reliability, and other factors.
See, e.g., id. at 1686.
[T]he existing transmission lines in the Northern Route corridors ... would need to have been removed from service for extended periods of time to facilitate this relocation. Removal of any transmission facility from service, planned or unplanned, can strain the remaining in-service transmission elements. Typically, planned requests to remove equipment from service are submitted up to 12 months in advance. Even with the long-term
scheduling, requests may be cancelled due to system requirements. To allow these requests, ISO-NE must study the projected system conditions and dispatch the system generation to maintain system reliability with the requested transmission out of service. This system "posturing" may involve limiting generation, running generation out of economic merit order, and requiring the work to be performed outside normal business hours and during specific seasons. These potential restrictions add costs to a project and to the customers in New England who would pay for these added costs. To complete the required relocations, outage durations between several weeks and several months would be required. Construction of the Project would have required rebuilding the existing lines. The additional construction needed to relocate and rebuild the existing lines would add significant costs to the project.
In addition, the Northern Route Alternative would have been complicated by the need to acquire new easements and additional land rights in the State of Maine. The Northern Route was ultimately not considered available because portions of the existing transmission corridor in Eliot and Kittery would have required expansion and/or the acquisition of underground rights to support two Piscataqua River Crossings. Crossing the Piscataqua River twice also presented significant technical challenges for both the underground/underwater and overhead crossing. Moreover, the Northern Route would have required increased permitting and siting in both the State of New Hampshire and the State of Maine, which would likely have impacted the in-service date. Therefore, due to the in-service schedule risks, additional complexity associated with obtaining permits and approvals in two states in a timely fashion, system impacts due to construction outages, added cost to relocate existing lines and the availability of other more attractive route options, the Northern Route Alternative was eliminated from further consideration.
Similarly, the Southern Route Alternative was not considered viable due to IO numerous technical challenges, cost issues, and environmental concerns. The Southern Route was also rejected because the route would potentially create more voltage and reliability issues than it would solve. The Southern Route was almost twice the length of the other route alternatives, which would not on its own, have solved all the voltage issues identified in the Needs Assessment. The Southern Route would have also required the construction of additional infrastructure to fully address the voltage criteria.
Moreover, siting a line routed to the south of the Project area would result in the siting of the new 115 kV circuit farther from the end point connections (i.e., the Madbury and Portsmouth Substations). The additional infrastructure required to address the voltage concerns and the increased line length would significantly increase the cost of the Project.
The Southern Route also posed significant technical challenges, including the proposed corridor runs through the Portsmouth traffic circle where the existing corridor does not have space for a new transmission circuit. Therefore, underground transmission cables would have been required through this area; and [Eversource] would need to secure additional land rights to construct the Project. The use of underground cable, lack of existing underground rights across the Portsmouth traffic circle area, and the increased complexity for cable installation (within or along the interstate highway right-of-way) added to the
cost of the Southern Route. Lastly, the Southern Route presented greater environmental impacts to wetlands and State-designated prime wetlands in the southern sections of the State.
Admin. R. at 1685-87.
16. In its comments to the Corps, CLF reported that the projected cost of the Little Bay route had risen from to $86.9 million "based on the March 2019 RSP Project List published by ISO-NE."
Id. at 20352; see also infra, Finding of Fact ¶ 63 (discussing project list).
17. In its Environmental Assessment, the Corps made the following determinations concerning alternatives in the EA :
CLF stipulates that the Corps made all the findings restated in this order, but globally disputes that the findings "were lawfully or reasonably arrive at, or correct on the substantive merits." See id. at 1 n.1.
a. "No action - Does not meet project purpose therefore it is not a practicable alternative."
b. "Northern Route- This alternative would impose the greatest potential environmental impacts as compared to the other alternatives primarily because 11.5 miles of the existing 114kV and 345kV transmission lines within the existing corridor would need to be relocated and rebuilt to accommodate the new line; and, the construction of the new line and relocation of existing transmission lines would have required the construction of approximately 24 miles of transmission lines. This could potentially result in the greatest permanent and temporary construction impact and impacts to WoUS. Additionally, this rebuild could jeopardize stability of the electric system during construction therefore, making this alternative not practicable. The relocation and rebuild of the line would also increase the cost of the project. Due to greater environmental impacts, higher cost and logistically not feasible, this alternative is not practicable."
c. "Middle Route (preferred route): The preferred alternative meets the overall project purpose when taking into consideration the cost, logistics, and impacts to WoUS. The SRP has minimized and avoided wetlands and WoUS to the greatest extent practicable under this alternative. This includes following previously disturbed areas along the existing ROW and a previously charted NOAA cable corridor. SRP has designed the line to avoid wetland impacts where practicable, as demonstrated by the very low level of direct, permanent impacts on wetlands. The middle route was determined to be the only available and practicable route because it maximizes the use of the existing linear corridor that already contains existing electric utility lines, did not require any additional land rights, minimizes and mitigates impacts to environmental and historical resources, maximizes the electrical reliability of the regional electrical system while addressing the needs in a cost-effective manner, and ensures that the Project is designed and constructed to meet ISO-NE's project requirements to meet the project purpose."
d. "HDD Across Little Bay/Shore Landing HDD Installation: This alternative is not practicable due to the technical and logistical challenges of getting through or beneath
Admin. R. at 21334.
Id.
Id.
the ledge, associated potential impacts to the environment, substantial impacts to land use, longer installation time and significantly higher cost than the preferred jet plow method."
e. "Southern Route- This alternative is not practicable because this route is approximately 7 miles longer than the preferred middle route which would result in greater "line-loss" and inefficiency. Additionally, as the length of the line increases, the cost of the Project increases significantly. This alternative would also create greater environmental impacts to wetlands and State-designated prime wetlands in the southern sections of the State. This alternative is not practicable because it is not logistically feasible, the increased cost and potentially greater impacts to wetlands."
Id. at 21334-35.
Id. at 21345.
18. The Corps found that the Middle Route was "located in and along an existing utility ROW and will not change land uses along the corridor."
Id. at 21349.
19. The Corps determined that the applicant has demonstrated there are no practicable alternatives that do not involve special aquatic sites.
Joint Statement of Agreed Facts ¶ 23 (citing Admin. R. at 21335).
20. The Corps determined that there are no alternatives to the proposed discharge that would be less environmentally damaging.
Id. ¶ 24 (citing Admin. R. at 21336).
21. The Corps determined that the proposed discharge is the practicable alternative with the least adverse impact on the aquatic ecosystem, and it does not have other significant environmental consequences.
Id. ¶ 25 (citing Admin. R. at 21335).
22. The Corps determined that there is no practicable alternative to the proposed discharge that would be less damaging to the environment.
Id. ¶ 26 (citing Admin. R. at 21346).
Environmental Impact Findings
23. NHSEC concluded that "Considering the expert testimony and the avoidance, mitigation, and minimization measures adopted by NHDES and agreed to by the Applicant, and the conditions imposed, ... the Project will not have an unreasonable adverse effect on water quality."
Id. ¶ 12 (citing Admin. R. at 15731). CLF stipulates that NHDES made the findings restated in this order, but globally disputes that the findings "were lawfully or reasonably arrive at, or correct on the substantive merits." See id. at 1 n.1.
24. NHSEC found that: "Durham and CLF argue[d] that the Project may prevent eelgrass from future recolonization of Little Bay. The degree of such impact, however, cannot be ascertained by the Subcommittee where it is speculative that eelgrass will be reestablished in Little Bay and it is unknown as to how much of it will be reestablished, if any."
Id. ¶ 15 (citing Admin. R. at 15766).
25. In the EA, the Corps observed that NHDES was requiring the use of an independent environmental monitor empowered to order corrective actions if the actual results deviate from the predicted results. The EA also includes a detailed explanation of the results of the sediment suspension and deposition models. 26. The Corps’ EA partially incorporated Eversource's response to comments on the Little Bay transmission route, and evidence submitted thereto.
Id. ¶ 54.
Id.
Admin. R. at 21323-27 (partially incorporating Eversource's responses to comments).
27. The Corps determined that potential impacts to substrate will be minor and long term.
Joint Statement of Agreed Facts ¶ 28 (citing Admin. R. at 21336).
28. The Corps determined that potential impacts to suspended particle and turbidity will be minor and short term.
Id. ¶ 29 (citing Admin. R. at 21336).
29. The Corps determined that potential impacts to water will be minor and short term.
Id. ¶ 30 (citing Admin. R. at 21336).
30. The Corps determined that effects to the movement of water in the aquatic environment will be negligible.
Id. ¶ 31 (citing Admin. R. at 21336).
31. The Corps determined that there will be no effect on normal water fluctuations.
Id. ¶ 32 (citing Admin. R. at 21336).
32. The Corps determined that there will be no changes in salinity gradients as a result of construction in Little Bay.
Id. ¶ 33 (citing Admin. R. at 21337).
33. The Corps determined that the plume generated by the jet plow will normally be limited to the immediate vicinity of the disturbance and should dissipate shortly after each phase of the construction activities.
Id. ¶ 34 (citing Admin. R. at 21336-37).
34. The Corps determined that potential impacts to fish, crustaceans, mollusk, and other aquatic organisms will be minor and short term.
Id. ¶ 35 (citing Admin. R. at 21337).
35. The Corps determined that jet plow technology has been shown to minimize impacts to marine habitat caused by excessive dispersion of bottom sediments, but some increased turbidity and resuspension of sediments can be expected.
Id. ¶ 36 (citing Admin. R. at 21338).
36. The Corps determined that the total suspended sediment levels expected for jet plowing will be below those shown to have adverse effect on fish.
Id. ¶ 37 (citing Admin. R. at 21338).
37. The Corps determined that any effects to the movement of listed species would be too small to meaningfully be measured or detected and will therefore be insignificant.
Id. ¶ 38 (citing Admin. R. at 21338).
38. The Corps determined that major natural oyster beds or restored oyster beds will not be impacted by the Project because the sediment plume created by the jet plow will not reach them.
Id. ¶ 39 (citing Admin. R. at 21338).
39. The Corps determined that smaller, unmapped oyster beds may be exposed to the sediment plume, but the ephemeral nature of the plume will result in there being negligible effects to these resources.
Id. ¶ 40 (citing Admin. R. at 21338).
40. The Corps determined that the community of benthic organisms in Little Bay is resilient, indicating that disturbed sediments will likely repopulate quickly.
Id. ¶ 41 (citing Admin. R. at 21339).
41. The Corps determined that impacts to other wildlife such as transient mammals, birds, reptiles, and amphibians are expected to be minor and temporary and will be managed through best management practices during construction.
Id. ¶ 42 (citing Admin. R. at 21339).
42. The Corps determined that potential impacts to sanctuaries and refuges will be negligible.
Id. ¶ 43 (citing Admin. R. at 21340).
43. The Corps determined that potential impacts to wetlands will be minor and short term.
Id. ¶ 44 (citing Admin. R. at 21340).
44. The Corps determined that potential impacts to mud flats will be minor and long term.
Id. ¶ 45 (citing Admin. R. at 21340).
45. The Corps determined that there will not be potential effect to vegetated shallows.
Id. ¶ 46 (citing Admin. R. at 21340).
46. The Corps determined that no eelgrass will be directly impacted by the Project.
Id. ¶ 47 (citing Admin. R. at 21340).
47. The Corps determined that there will be no potential effect resulting from contaminants.
Id. ¶ 48 (citing Admin. R. at 21340).
48. The Corps determined that testing for possible contaminants in dredged or fill material is not required because the proposed material is not likely to be a carrier of contaminants because it is comprised of sand, gravel, or other naturally occurring inert material.
Id. ¶ 49 (citing Admin. R. at 21343).
49. The Corps determined that jet plowing operations did not require a full Marine Analysis Section review as this material will be only briefly suspended into the lower part of the water column before re-depositing into the immediate vicinity of the jet plow.
Id. ¶ 50 (citing Admin. R. at 21344).
50. The Corps determined that potential impacts to the physical substrate will be minor and long term.
Id. ¶ 51 (citing Admin. R. at 21345).
51. The Corps determined that potential impacts to aquatic ecosystems and organisms will be minor and short term.
Id. ¶ 52 (citing Admin. R. at 21345).
52. The Corps determined that potential impacts relative to the proposed disposal site will be minor and short term.
Id. ¶ 53 (citing Admin. R. at 21345).
53. The Corps determined that potential cumulative effects on the aquatic ecosystem will be minor and short term.
Id. ¶ 54 (citing Admin. R. at 21345).
54. The Corps determined that secondary effects on the aquatic ecosystem will be minor and long term.
Id. ¶ 55 (citing Admin. R. at 21345).
55. The Corps determined that the discharge will not cause or contribute to violations of any applicable water quality standards.
Id. ¶ 56 (citing Admin. R. at 21345).
56. The Corps determined that the discharge will not violate any toxic effluent standards.
Id. ¶ 57 (citing Admin. R. at 21346).
57. The Corps determined that the discharge will not violate standards set by the Department of Commerce to protect marine sanctuaries. 58. The Corps determined that the discharge will not cause or contribute to significant degradation of waters of the United States.
Id. ¶ 58 (citing Admin. R. at 21346).
Id. ¶ 59 (citing Admin. R. at 21346).
59. The Corps determined that all appropriate and practicable steps have been taken to minimize the potential adverse impacts of the discharge on the aquatic ecosystem.
Id. ¶ 60 (citing Admin. R. at 21346).
60. The Corps determined that "[t]he major impacts of the project are temporary in nature and the long term impacts are expected to be minimal."
Admin. R. at 21348.
G. Public interest purpose of the project
61. In 2010, ISO-New England, the independent system operator for ensuring reliability and competitive wholesale electricity in the New England area, began a needs assessment to evaluate the reliability of the New England regional transmission system.
See Joint Statement of Agreed Facts ¶ 1a.; see also Compl. ¶ 70.
62. In January 2019, NHSEC, in granting Eversource's application for a Certificate to construct along the planned, Little Bay route, adopted the following stipulated findings of fact about ISO-NE:
The proposed Project is a reliability project selected by the Independent System Operator of New England ("ISO-NE") to address identified transmission capacity needs for the continued reliability of the electric transmission system in the New Hampshire Seacoast Region. ISO-NE concluded, based on a study commenced in 2010, that additional transmission capacity is necessary in this area to support the reliable delivery of electric power.
ISO-NE considered a range of alternatives to increase transmission system thermal capacity, to increase transformer thermal capacity, and to improve system voltage performance. ISO-NE chose the present project, in 2012, as the preferred solution "as it is much less costly than the other alternative and addresses the needs in the area."
The ISO-NE selected the Seacoast Solution, including the Seacoast Reliability Project, as a reliability project in the region to support the reliable delivery of electric power.
The "New Hampshire Vermont Transmission Solutions Study Report," published by ISO-NE in 2012, found that the Seacoast Region faces significant violations of the transmission system criteria under certain system operating conditions and, if these criteria violations are not addressed, the Region will likely encounter system overloads that could lead to power outages for numerous customers.
ISO-NE determined in 2011 and 2012 that if no action is taken to address the needs of the Seacoast Region's electric system, there is the potential that the transmission lines there will exceed their emergency thermal ratings, which could result in degraded voltage.
ISO-NE considered a range of alternatives to increase transmission system thermal capacity, to increase transformer thermal capacity, and to improve system voltage performance. ISO-NE chose the present project as the preferred solution because its ability to solve identified needs and in part because of its cost. The project will provide an additional path to enhance the existing 115 kV transmission system between the Deerfield and Scobie Pond Substations, and will provide 115 kV transmission
ties to Maine to better address reliability concerns in the New Hampshire Seacoast region.
Joint Statement of Agreed Facts ¶ 1 (citing NHSEC Order at 329, 334-35) (internal citations omitted). CLF stipulates that NHSEC made such findings, but globally disputes that the findings "were lawfully or reasonably arrive at, or correct on the substantive merits." See id. at 1 n.1.
63. As of June 2018, the Seacoast Reliability Project remained on the on the project list ISO-NE approved project list that it publishes three times per year. ISO-NE's June 2019 ISO-New England Project Listing Update (Draft) – ISO-NE Public, available at https://www.iso-ne.com/staticassets/documents/2019/06/final_project_list_june_2019.xls, shows that the Project remains planned and is expected to be in-service by December 2019.
Joint Statement of Agreed Facts ¶ 2.
64. The Corps and NHSEC both rejected requests that the ISO-NE needs assessment be revisited by ISO-NE.
Id. ¶ 3.
III. Rulings of law
65. Before a district court grants a preliminary injunction, it must "consider (1) the movant's likelihood of success on the merits; (2) the likelihood of the movant suffering irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public interest." Shurtleff v. City of Bos., 928 F.3d 166, 171 (1st Cir. 2019). The First Circuit Court of Appeals as recognized that "the first two factors, likelihood of success and of irreparable harm, are ‘the most important’ in the calculus,’ " Bruns v. Mayhew, 750 F.3d 61, 65 (1st Cir. 2014) (quoting González–Droz v. González–Colón, 573 F.3d 75, 79 (1st Cir. 2009) ), and that these two factors are assessed in relation to one another, see W Holding Co. v. AIG Ins. Co., 748 F.3d 377, 383 (1st Cir. 2014) ; Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). " ‘[W]hen the likelihood of success on the merits is great, a movant can show somewhat less in the way of irreparable harm and still garner preliminary injunctive relief." Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009) (citation omitted).
66. The burden of proof on all four preliminary injunction factors is on the movant. See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006) ; see also Winter, 555 U.S. at 21–22, 129 S.Ct. 365 (even a strong showing of likely success cannot compensate for failure to show likely injury).
67. Administrative Procedures Act ("APA")
68. "[T]he APA standard affords great deference to agency decisionmaking." Assoc. Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ). "[B]ecause the [agency's] action is presumed valid, judicial review ... is narrow." Id. A reviewing court is limited to "hold[ing] unlawful and set[ting] aside agency action[s], findings, and conclusions found to be – arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under the standard, a court must "determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). "The court must undertake a ‘thorough, probing, in depth review’ and a ‘searching and careful’ inquiry into the record." Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1285 (1st Cir. 1996) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ).
69. In applying the arbitrary and capricious standard, the court must "determine whether the agency has ... ‘articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ " Penobscot Air Services Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir. 1999) (citations omitted). The court must further determine that the agency's reasoning is supported by "substantial evidence." Dickinson v. Zurko, 527 U.S. 150, 164, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) ; see also Fed. Power Comm'n v. Fla. Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972) (agency's conclusions must have a "substantial basis in fact").
NEPA and CWA
70. "[O]nce an agency has made a decision subject to NEPA's [ (and relatedly, the CWA's) ] procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken." Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227–28, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) ) (quotation marks omitted); see also Sierra Club v. U.S. Army Corps of Eng'rs, 772 F.2d 1043, 1057 (2d Cir. 1985) (explaining in a NEPA and CWA case that a court "may not substitute its view of the merits or of ‘the choice of action to be taken’ for the agency's" (quoting Strycker's Bay, 444 U.S. at 227, 100 S.Ct. 497 )). "In fact, an agency decision is acceptable even if there will be negative environmental impacts resulting from it, so long as the agency considered these costs and still decided that other benefits outweighed them." Nat'l Audubon Soc'y v. Dep't of Navy, 422 F.3d 174, 184 (4th Cir. 2005).
71. As discussed below, the court finds that CLF has failed its burden of showing likelihood of success on the merits and relatedly irreparable harm, and that the competing interests and public interests at issue do not weigh in favor of granting preliminary injunctive relief.
A. Likelihood of success on the merits
72. Likelihood of success on the merits is the "critical" element of the test for injunctive relief, and it "cannot be woven from the gossamer threads of speculation and surmise." Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991). Indeed, "[t]he sine qua non of [the] four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity." Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (internal quotation marks and citation omitted); accord ANSYS, Inc. v. Computational Dynamics N. Am., Ltd., 595 F.3d 75, 78 (1st Cir. 2010) ("The first factor, likelihood of success, is usually given particularly heavy weight.").
73. In a case like this challenging the action of an administrative agency, the "focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ; see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). 74. CLF argues that it will likely succeed on the merits because the Corps’ decision to approve construction in Little Bay was arbitrary and capricious, thus violating the APA. To that end, CLF advances two theories. First, it contends that the Corps’ decision was arbitrary and capricious (and not in accordance with the Clean Water Act and NEPA) because the Corps’ stated reasons for rejecting alternatives to Little Bay lacked support from any verified data or documentation in the record. Second, CLF claims that the Corps’ "decision was arbitrary and capricious because the Corps should have prepared an Environmental Impact Statement given significant impacts on the environment, and the legal presumption that practicable alternatives not affecting special aquatic sites are more appropriate." The court finds that neither theory is likely to be meritorious.
CLF's Supp. Mem. i/s/o Mot. for P.I. (doc. no. 44) at 19.
1. Alternatives analysis
75. CLF argues that the Corps failed to properly evaluate "reasonable alternatives" to the Little Bay transmission line "with anything close to the scrutiny required under NEPA and the CWA." In CLF's view, "the record lacked even minimal support and data necessary to substantiate the conclusory assertions of Eversource in its application." As such, CLF contends that the administrative record "lack[s] the data necessary for this [c]ourt—or anyone else—to determine whether [the Corps’] evaluation of the alternatives to crossing Little Bay had a rational basis—or was merely a recitation of Eversource's conclusory assertions." The court disagrees, finding the administrative record supported the Corps’ determinations that alternatives were not practicable.
CLF's Supp. Mem. at 9.
Id.
Id.
A reasonable or practicable alternative
76. The parties agree that NEPA requires that agencies examine only "reasonable" alternatives "[b]ased on practical considerations and the ‘purpose and need’ for the proposed action." Lovgren v. Locke, 701 F.3d 5, 37 (1st Cir. 2012) (citing Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011) ). As defined in NEPA regulations, "[r]easonable alternatives" include "alternatives that are technically and economically practical or feasible and meet the purpose and need of the proposed action." 43 C.F.R. § 46.420. "There is, however, no need to disregard ... the common sense realities of a given situation in the development of alternatives." Guidance Regarding NEPA Regulations, 48 FR 34263-01 ; see also Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 FR 18026-01 ("Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.") (emphasis added).
See Corps.’ Supp. Mem. (doc. no. 48) at 4; Eversource's Supp. Mem. (doc. no. 47) at 15-16; CLF's Mot. for Prelim. Injunction Mem. (doc. no. 3-1) at 18-19 (quoting N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008) ).
The CEQ's interpretation of NEPA is entitled to substantial deference. See Marsh, 490 U.S. at 373, 109 S.Ct. 1851.
77. Under the CWA, agencies must similarly consider whether "practicable alternatives" are available. 33 U.S.C. § 1344(b), codified at 40 C.F.R. § 230, et seq.; see also 40 C.F.R. § 230.10(a) ("[N]o discharge of dredged or filled material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem ...."); id. § 230.10(a)(3) (where, as here, a discharge is proposed for a special aquatic site, "all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the ecosystem, unless clearly demonstrated otherwise."). CWA Guidelines define "practicable" to mean "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. § 230.3(l).
Review required under NEPA and CWA
78. " ‘Though significant,’ " these requirements are "procedural in nature," United States v. Coal. for Buzzards Bay, 644 F.3d 26, 31 (1st Cir. 2011) ; accord Lovgren, 701 F.3d at 36–37, and "do[ ] not mandate particular results," Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). "So long as the environmental effects of a proposed action have been adequately identified and studied, the agency is free to weigh those effects and decide—within the limits fixed by the APA—that other values overbalance environmental costs." Buzzards Bay, 644 F.3d at 31.
79. In considering alternatives in an EIS, NEPA regulations require federal agencies, including the Army Corps, to:
Pursuant to Executive Order 11991, all federal agencies must follow the regulations and guidance issued by the President's Council for Environmental Quality that interpret NEPA. Exec. Order No. 11991, 3 CFR 124 (1978) (ordering all federal agencies to "comply with the regulations issued by the [CEQ]" regarding NEPA); see also Andrus v. Sierra Club, 442 U.S. 347, 357-58, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979) (holding that CEQ's interpretation of NEPA is entitled to substantial deference).
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.
40 C.F.R. § 1502.14 (emphasis added); see also Tongass Conservation Soc. v. Cheney, 924 F.2d 1137, 1141 (D.C. Cir. 1991) (noting that "an agency need only ‘briefly discuss the reasons’ why rejected possibilities were not reasonable alternatives).
80. The First Circuit Court of Appeals has explained, in the context of an EIS (which was not required here by the Corps), that the "level of detail" required for a "reasonably thorough discussion of significant aspects of the probable environmental consequences ... depends on the nature and scope of the proposed action." Dubois v. U.S. Dep't of Agriculture, 102 F.3d 1273, 1278 (1st Cir. 1996) (internal citations and quotation marks omitted) (applying a "rule of reason"); City of Carmel–By–The–Sea v. U.S. Dept. of Transp., 95 F.3d 892, 899 (9th Cir. 1996) (same). "One aspect of this determination is whether the agency has gone ‘beyond mere assertions and indicate[d] its basis for them.’ " Dubois, 102 F.3d at 1288 (quoting Silva v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973) ). The agency "must ‘explicate fully its course of inquiry, its analysis[,] and its reasoning.’ " Massachusetts v. Andrus, 594 F.2d 872, 883 (1st Cir. 1979) (quoting Silva, 482 F.2d at 1284–85 ). A court in review, in turn, "must determine whether, in the context of the record, the agency's decision—and the analysis on which it is based—is too unreasonable for the law to permit it to stand." Dubois, 102 F.3d at 1288 (citing Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir. 1992) ). "[Courts] apply a rule of reasons because [they] should not ‘fly speck’ an EIS and hold it insufficient based on inconsequential or technical deficiencies." Id. (quoting Swanson v. U.S. Forest Service, 87 F.3d 339, 343 (9th Cir. 1996) ).
81. "When, as here, an agency makes an informed decision that the environmental impact will be small, a view which [the court is] required to accord deference, a ‘less extensive’ search [for alternatives] is required." Highway J Citizens Grp. v. Mineta, 349 F.3d 938, 960 (7th Cir. 2003) (citing River Road All. v. Corps of Engineers of U.S. Army, 764 F.2d 445, 452 (7th Cir. 1985) ). In Greater Yellowstone Coal. v. Flowers, for example, the Tenth Circuit Court of Appeals held that a conclusion by the Corps was not arbitrary and capricious, despite a lack of "any evidentiary support for such a conclusion," in light of the project-at-issue's minor anticipated impact to protected waters. 359 F.3d 1257, 1271 (10th Cir. 2004) ; see also Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156, 1171 (10th Cir. 2012) (also holding that the Corps’ analysis was appropriate in light of the anticipated environmental impact); City of Dallas, Tex. v. Hall, 562 F.3d 712, 718 (5th Cir. 2009) (" ‘[T]he range of alternatives that the [agency] must consider decreases as the environmental impact of the proposed action becomes less and less substantial.’ ") (quoting Sierra Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994) ); Del. Audubon Soc. v. Salazar, 829 F. Supp. 2d 273, 281–82 (D. Del. 2011) ("Although an EA must still reflect ‘consideration of some range of alternatives,’ ‘it makes little sense to fault an agency for failing to consider more environmentally sound alternatives to a project which it has properly determined ... will have no significant environmental effects anyway." (quoting Sierra Club, 38 F.3d at 803 )).
82. " ‘[A]n agency's obligation to consider alternatives under an EA is a lesser one than under an EIS.’ " Nw. Bypass Grp. v. U.S. Army Corps of Eng'rs, 470 F. Supp. 2d 30, 62 (D.N.H. 2007) (Woodcock, J.) (quoting Native Ecosystems Council v. U.S. States Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005) ); see also Myersville Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301, 1323 (D.C. Cir. 2015) (noting that "the relevant regulations provide that the consideration of alternatives in an Environmental Assessment need not be as rigorous as the consideration of alternatives in an EIS").
The sufficiency of the Corps’ review
83. Here, the Corps’ EA satisfied NEPA's requirements because the EA provided reasonable, common-sense explanations for rejecting alternatives to the Little Bay route. As explained in the EA, the Corps considered five alternatives: (1) the no-action alternative, (2) the Northern Route, (3) the Southern Route, (4) the Middle Route installed via horizontal directional drilling under Little Bay, and (5) the Middle Route installed via jet-plow operations to bury the cables beneath Little Bay. For each rejected alternative, the Corps went beyond simply adopting Eversource's conclusion that they were not practicable and explained why it concluded as such. These explanations did not reiterate every justification offered by Eversource, but instead narrowed its explanation to those the Corps found to be compelling based on its expertise and common sense realities. 84. Courts have consistently rejected the assertion advanced by CLF that an agency is required to independently test a permit applicant's representations. In Ctr. for Food Safety v. Salazar, the district court found that an agency's brief discussion in an EA was reasonable where it had "considered but not developed" alternatives that failed to fulfill, and were inconsistent with, the overall objectives of "refuges and wetlands management." 898 F. Supp. 2d 130, 147 (D.D.C. 2012). Likewise, in Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs, the Tenth Circuit Court of Appeals held that "the Corps did not act arbitrarily and capriciously by failing to take additional steps to verify [the applicant's] claim that sites more than 30 miles from the Argentine Yard were infeasible." 702 F.3d 1156, 1170 (10th Cir. 2012) (declining to prepare EIS).
Admin. R. at 21329-35.
See id. at 21334-35; see also supra Finding of Facts ¶ 17.
Compare Admin. R. 23131 (for example, recognizing that Eversource found the Northern Route to be impactable because, among other reasons, this alternative would "add one or more yeast to the overall Project schedule") with id. at 21334 (not including this reason in finding the Northern Route to be impracticable).
See CLF's Supp. Mem. (doc. no. 44) at 12.
85. Much of CLF's cited legal authority for the proposition that the administrative record must contain specific data to support an EA's rejection of considered, but undeveloped, alternatives is readily distinguishable. For example, Nat'l Audubon Soc'y did not involve an EA. Instead, it concerned the thoroughness of an alternatives analysis in an EIS, which imposes a higher standard for the evaluation of impacts than the EA at issue here. 422 F.3d at 194 (remanding agency decision). There, the federal agency based its granting of a permit on flawed data on bird strike hazard conditions, and the federal agency was aware of the "limited predictability" provided by its methodology and the high risk of "serious environmental consequences." Id. at 191-192. These known flaws are not present in the EA here.
See CLF's Supp. Mem. at 13-19.
86. Klamath-Siskiyou Wildlands Center v. Bureau of Land Management is also inapposite, as it concerned a different type of analysis, a cumulative impact analysis, rather than one for alternatives. 387 F.3d 989, 994 (9th Cir. 2004) (finding that an agency was required to objectively quantify the cumulative impacts of successive timber sales). The Ninth Circuit Court of Appeals held that "proper consideration of the cumulative impacts of a project requires some quantified or detailed information," not just "general statements about possible effects and some risk." Id. (quoting Ocean Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d 1108, 1128 (9th Cir. 2004) ). By comparison, here, the Corps assessed the alternatives in quantitative terms: For the 12.5-mile Northern Route, 11.5 miles of existing transmission lines would need to be relocated and rebuilt to accommodate the new line, and 11.8 miles of additional rights of way would be needed; the Southern Route, by comparison, would be about 7 miles longer than the 12.5-mile Northern and 12.9-mile Middle Routes (and would also require additional rights of way).
See Admin. R. at 213331.
Independent consideration of provided information
87. Instead of testing, NEPA regulations require an agency to independently consider an applicant's preferences:
(a) Information. If an agency requires an applicant to submit environmental information for possible use by the agency in preparing an environmental impact statement, then the agency ... shall independently evaluate the information submitted and shall be responsible for its accuracy.... It is the intent of this
paragraph that acceptable work not be redone, but that it be verified by the agency.
(b) Environmental assessments. If an agency permits an applicant to prepare an environmental assessment, the agency, besides fulfilling the requirements of paragraph (a) of this section, shall make its own evaluation of the environmental issues and take responsibility for the scope and content of the environmental assessment.
See 40 C.F.R. § 1506.5.
88. In one case (cited by neither party), a court found that the failure to verify certain metrics like cost comparisons constituted arbitrary and capricious conduct when specific information suggested those metrics were unreliable. In Utahns for Better Transportation vs. U.S. Dep't of Transportation, the Corps declined to select an alternative for future study in an EIS "because of its high cost and high impact on existing development relative to the [preferred route]." 305 F.3d 1152, 1165 (10th Cir. 2002). "The record d[id] not reveal that [the Corps] either verified the cost estimates supplied by the Applicant or responded to the comments" that suggested an alternative might not have been as cost prohibitive as the Corps first suspected. Id. (citing 40 C.F.R. § 1506.5 ) (emphasis added). The selected route was initially estimated to cost about $300 million, as compared to the $460 million estimate for the alternative; however, new information provided in comments suggested that the estimation for the selected route was actually closer to $451 million. On these facts, the Tenth Circuit Court of Appeals held that the agency's elimination of the alternative without verifying the applicant's claim that it was prohibitively expensive was arbitrary and capricious, "given the importance of the relative costs to the alternative analyses in the EIS." Id. at 1166.
89. While instructive, Utahns is different from this case in at least three respects. First, in Utahns, the appellants challenged the Corps’ cost estimations in regulatory comments, and provided specific information suggesting the costs of the alternative was in the same range as the selected project-at-issue. Here, however, the parties have pointed to nothing in the administrative record questioning or challenging the Corps’ relative cost analysis among the Northern, Middle, and Southern Routes. Rather, it appears that in the procedures below, CLF focused on the comparative costs of the Gosling Road alternative (also rejected), which prompted Eversource and the Corps to develop the record on those points.
See NHSEC Aug. 29, 2018 Hearing Tr., PM Session, Andrews Testimony, (doc. no. 44-4) at 62-63 (CLF filed testimony as an exhibit without administrative record pagination); NHSEC Sept. 18, 2018 Hearing Tr., AM Session, Andrews Testimony (doc. no. 44-6) at 44, 59 (same).
90. Second, in Utahns, the Corps rejected the alternative primarily on the ground of relative cost. Here, by comparison, the Corps rejected the Northern and Southern Routes for a multitude of factors, which included logistics, the need to acquire land rights, and the project's purpose (in addition to relative cost).
91. Finally, unlike in Utahns, the Corps’ brief discussion for rejecting alternatives here was reasonable as it was based on "commonsense realities" of the three proposed routes. See Sierra Club v. Marsh, 714 F. Supp. 539, 574 (D. Me.), amended, 744 F. Supp. 352 (D. Me. 1989), aff'd, 976 F.2d 763 ; see also NEPA Regulations FAQ, 46 FR 18026-01 ("Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.") (emphasis added). CLF maintains that absent specific cost figures, the Corps’ conclusions for rejecting the Northern Route – a greater permanent environmental impact, higher costs, and logistical infeasibility – were "simply unfounded." This is incorrect. As evidenced in the administrative record, the Northern Route required the construction of up to 24 miles of rebuilt or relocated transmission lines across two state jurisdictions (as opposed to the near-12-miles of lines in one state for the Middle Route), and the acquisition of rights of way. With this information, the Corps was within its environmental and engineering expertise to draw, at minimum, the common-sense conclusions that the Northern Route would impose significantly greater logistical issues than the Middle Route (and probably, higher costs and greater permanent environmental impact via the relocation). See Nw. Bypass Grp. v. U.S. Army Corps of Engineers, 552 F. Supp. 2d 97, 114 (D.N.H. 2008) (rejecting argument that there was no evidence in the record supporting the Corps’ conclusions where those conclusions were drawn from a "common-sense consideration of the available facts"); cf. EarthLink, Inc. v. FCC, 462 F.3d 1, 12 (D.C. Cir. 2006) (explaining that courts should be "particularly deferential" to an "agency's predictive judgments about areas that are within the agency's field of discretion and expertise ... as long as they are reasonable" (quoting In re Core Commc'ns, Inc., 455 F.3d 267 (D.C. Cir. 2006) )).
CLF Supp. Mem. at 12-14.
See Admin. R. at 1685-87 (testimony explaining construction); Admin. R. 24159 (map of routes).
The Corps refers to the Northern Route's need for rights of way by negative inference in identifying its reasons for selecting the Middle Route. See id. at 21334.
92. Likewise, for the Southern Route, the administrative record evidences that it would be 7 miles longer than the Middle Route, required "additional infrastructure," including the construction of an additional capacitor bank, and involved passing through the Portsmouth traffic circle – a confluence of highways and city streets known statewide to be among the most difficult and high-trafficked areas in the New Hampshire seacoast region. Again, it was not unreasonable for the Corps to conclude, based off its expertise and common sense, that a longer line would impose line loss or that the infrastructure needs would be significantly more costly than a route without such needs.
Admin. R. at 1685-87 (testimony explaining construction). The court offers this description of the traffic circle as an example to highlight a common-sense judgment on logistics and not as a specific finding that the Corps had this exact concern in mind when it wrote its EA.
93. Despite CLF's arguments to the contrary, the Corps was not required to find, or point to evidence suggesting, that the Northern or Southern Routes were impossible. Rather, the Corps was only required to briefly discuss why these alternatives were not sufficiently reasonable or practicable to warrant further study. See Lovgren, 701 F.3d at 37 ; Tongass, 924 F.2d at 1141.
See, e.g., CLF Supp. Mem. at 12 ("it is noteworthy that the complications Mr. Jiottis described did not make the project impossible"). CLF also repeated this standard at oral argument.
94. The thoroughness of the Corps’ alternatives analysis is admittedly a closer question than some of the others raised by this preliminary injunction motion. The court ultimately finds, however, that it was sufficiently reasonable given the sworn testimony in the administrative record about the construction methods for each Route, common-sense or technical inferences drawn from facts in the record, and the Corps’ finding that the Little Bay route would impose "minimal" long-term impact on the environment.
Admin. R. at 21348; see supra Finding of Fact ¶ 60; Section III.A.2 infra.
95. For these reasons, CLF has failed to show that they would likely succeed in proving that the Army Corps of Engineers’ alternatives analysis was arbitrary or capricious.
2. Sufficiency of the EA
96. CLF's other alleged error is that the Corps acted arbitrarily and capriciously in finding that construction in Little Bay would have no significant long-term impact on the environment, resulting in the Corp preparing an EA and FONSI instead of an EIS. The court disagrees.
97. The court analyzes the validity of a FONSI under a four-factor test:
First, the agency must have accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a "hard look" at the problem in preparing the EA. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum.
Food & Water Watch, Inc. v. U.S. Army Corps of Eng'rs, 570 F. Supp. 2d 177, 185 (D. Mass. 2008) (quoting Coal. of Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66-67 (D.C. Cir. 1987) ); see also Nw. Bypass Grp., 552 F. Supp. 2d at 133 (applying the same factors).
98. CLF contends that the Corps’ findings on environmental harm were in error because the Corp (1) relied on an outdated purpose and need statement; (2) too narrowly examined the scope of the environmental harms; (3) did not take a "hard look" at the impact on the environment in Little Bay; and (4) as addressed and found otherwise above, did not sufficiently address alternatives to Little Bay. After considering each of CLF's contentions, the court concludes that CLF has failed to show that the Corps likely acted arbitrarily or capriciously in finding that construction in Little Bay would have no significant, long-term impact on the environment and consequently issuing an EA.
Outdated purpose and need statement
99. CLF contends that the Corps relied on an outdated purpose and need statement from Eversource and that, as a result, the Corps failed to undertake the necessary independent analysis about the need for the Seacoast Reliability Project. The record does not support CLF's argument.
100. As agreed by the parties, ISO-NE reviews the status of the electric grid on an annual basis, the Project was selected in 2012, and it remained on ISO-NE's project list in June 2018 and its draft project list in June 2019.
See Joint Statement of Agreed Facts ¶¶ 1(d), 2.
101. CLF has failed to show that the Corps failed to take an independent look at the project. CLF has not pointed the court toward compelling evidence that the Corps failed to make an independent evaluation. See 40 C.F.R. § 1506.5(a) (stating that "acceptable work" by applicants need not be redone by the agency so long as the agency independently evaluates it). Although the Corps relied on information provided by Eversource, the Corps was permitted to rely on that information. See supra at 57–60.
Scope of review
102. Despite CLF's arguments to the contrary, the Corps properly limited its analysis to the impacts on Little Bay. CLF argues that "the scope of analysis" for the EA should have included "those portions of the project outside" of the Corps’ jurisdiction (i.e., upland areas outside the "waters of the United States") because "the Corps permit bears upon the origin and destination as well as the route of the project outside the Corps regulatory boundaries ...." This is incorrect.
CLF's Mot. for Prelim. Injunction Mem. (doc. no. 3-1) at 16 (quoting 33 C.F.R. Pt. 325, App. B § 7(b)).
103. The pertinent regulation referenced by CLF limits expanded review to "where the environmental consequences of the larger project are essentially products of the Corps permit action." 33 C.F.R. Part 325, App. B § 7(b). Where the regulated activities are "merely a link in a transportation or utility transmission project, the scope of analysis should address ... the specific activity requiring" the permit. Id. § 7(b)(2).
104. Here, the crossing of Little Bay is a link in a larger utility transmission project. As such, the Corps properly limited its analysis to the impacts of the crossing.
"Hard look" at impact on water quality, ecosystem, and sediments
105. CLF takes issue with the Corps’ discussion of the impacts to the environment in Little Bay in the EA, as well as the Corp's conclusion that any impacts will not be significant. CLF contends that the Corps merely "rubber-stamped the Project by going through the motions." This understates the extent of the Corps’ analysis in the EA, as well as the support in the Administrative Record.
CLF's Mot. for Prelim. Injunction Mem. (doc. no. 3-1) at 18.
106. In the EA, the Corps thoroughly discussed the expected environmental impact in Little Bay. For example, in Section 6.4.1, the Corps surveyed the aquatic ecosystem and discusses the specific impacts the proposed dredging activities will have on local species. The Corps concluded that jet plow technology will minimize the effects on fish, oysters, benthic organisms, lobsters, and horseshoe crabs, which are, together, the predominant wildlife in the affected area of Little Bay.
Admin. R. at 21337-39.
Id. at 21339.
107. Although it concluded that there is no significant impact, the Corps provided a forthright acknowledgement of the negative environmental impacts of the Little Bay project on wildlife in the affected area. Cf. Hapner v. Tidwell, 621 F.3d 1239, 1244-45 (9th Cir. 2010) (noting that an agency's failure to discuss evidence contrary to its position in the EA suggests that the EA was inadequate). For example, the Corps noted that lobsters buried directly along the cable route could be killed or injured by the jet plow. It also considered the possibility that the jet plow will have a negative impact on oyster populations. Nevertheless, the Corps concluded that, generally, the ecosystem in the affected region of Little Bay is resilient and would recover from any environmental effects within a relatively limited time period.
Id. at 21338-39.
Id. at 21339.
108. As to sediment, pathogens, and other contaminants caused by construction in Little Bay, the Corps responded to comments about the impact on water quality and sediment by addressing the potential issues with the dispersal of sediment and contaminants within the sediment caused by use of the jet plow technology. The Corps found that the use of jet plow technology would minimize the dispersal of bottom sediments, though "some" increased turbidity (presumably relative to traditional dredging methods) could cause the resuspension of sediments. The Corps based its conclusion on a model produced by the ESS Group, which found that "elevated levels of suspended sediment are predicted to return to ambient conditions within 24-48 hours after plowing operations." The Corps further referenced NHDES's "rigorous water quality monitoring plan during jet plowing" in Little Bay, which would be used to ensure that sediment suspension is minimized during the operation.
Id. at 21326.
Id.
Id. at 21327.
109. Additionally, in the EA, the Corps observed that NHDES was requiring the use of an independent environmental monitor empowered to order corrective actions if the actual results deviate from the predicted results. Given the extent of the information analyzed by the Corps and its acknowledgement of the potential environmental harms, the court cannot say that CLF is likely to succeed in its argument that the Corps failed to take a "hard look" at the environmental impacts of constructing underwater cables across Little Bay. See Nat'l Audubon Soc'y, 422 F.3d at 187 ("The hallmarks of a ‘hard look’ are thorough investigation into environmental impacts and forthright acknowledgement of potential environmental harms.").
Speed of the permitting process
110. Finally, CLF contends that the speed of the permit approval, as well as the fact that much of the EA is based upon information provided or prepared by Eversource, suggests that the Corps failed to independently contemplate the environmental impacts of the Little Bay crossing. But, the speed of the permit approval does not undercut the EA or its finding of no significant impact where the analysis is thorough, and, as noted, the regulations permit the Corps to rely on information provided by the applicant. See 40 C.F.R. § 1506.5(a) ; Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir. 1986) ("An EA may be based entirely upon information supplied by the applicant and indeed may be prepared by an outside consulting firm.").
See, e.g., CLF Mot. for Prelim. Injunction Mem. (doc. no. 3-1) at 3 ("This was not just remarkable speed for a federal environmental approval, it was unprecedented ....").
The court also observes that while the Corps issued Eversource an individual permit more than two months after it issued a public notice for comments, Eversource had been developing the project with the Corp for approximately three years. See supra Findings of Fact ¶¶ 1, 5.
111. While there is no dispute that construction in Little Bay impacts sensitive ecosystems, the Corps’ finding of no significant impact on the environment is rational, as it is premised in large part on the transient nature of the project's environmental effects as well as specific procedures to mitigate any potential impacts.
112. CLF disputes the Corps’ factual conclusions but failed to produce evidence sufficient to overcome the considerable deference afforded to the Corps’ findings. See Marsh, 490 U.S. at 376-77, 109 S.Ct. 1851 ("Because analysis of the relevant documents ‘requires a high level of technical expertise,’ we must defer to ‘the informed discretion of the responsible federal agencies.’ " (quoting Kleppe, 427 U.S. at 412, 96 S.Ct. 2718 )).
113. For these reasons, CLF is not likely to succeed in its argument that the finding of no significant impact was arbitrary and capricious.
B. Irreparable harm
114. "The burden of demonstrating that a denial of interim relief is likely to cause irreparable harm rests squarely upon the movant." Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 79. The movant must provide "something more than conjecture, surmise, or a party's unsubstantiated fears of what the future may have in store." Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). The measure of irreparable harm can be a "sliding scale, working in conjunction with a moving party's likelihood of success on the merits." Vaqueria Tres Monjitas, 587 F.3d at 485. But because CLF has not shown a strong likelihood of success on the merits, its burden to show irreparable harm is not lessened. See id.
115. CLF argues that it has demonstrated two types of likely irreparable harm. First, it contends that it has shown direct irreparable physical harm to the environment will result if construction in Little Bay proceeds, including harm to oysters, eelgrass communities, and water quality. Second, CLF argues that the Corps’ alleged failure to comply with NEPA creates an independent harm to the environment, in that failure to follow NEPA procedures creates a risk of uninformed choice leading to environmental harms. See Sierra Club v. Marsh, 872 F.2d at 500-01, 504 ("[T]he harm at stake in a NEPA violation is a harm to the environment, not merely to a legalistic ‘procedure[.]’ "); Puerto Rico Conserv. Found. v. Larson, 797 F. Supp. 1066, 1072 (D.P.R. 1992) ("[A] violation of NEPA can be itself considered irreparable injury."). This second theory of irreparable harm depends on showing NEPA violations. As CLF has failed to show a likelihood of success on the merits, it cannot meet its burden to show irreparable harm through this theory. See Friends of Magurrewock, Inc. v. U.S. Army Corps of Eng'rs, 498 F. Supp. 2d 365, 377-78 (D. Me. 2007) (Woodcock, J.) (movant failed to make out a NEPA violation, and so could not meet its burden to show irreparable harm through an argument based on Marsh ).
116. The court thus turns to CLF's attempts to demonstrate irreparable physical harm to the environment. These fall into two categories: (1) the impacts of jet plow process used to lay the cables, primarily through sediment disturbance and resuspension; and (2) the impacts of the permanent installation of concrete mattresses over certain portions of the crossing.
Jet plow process
117. CLF alleges that the jet plow process of installing cables across Little Bay will cause it irreparable harm. The jet plow process will disturb approximately 1,000 cubic yards, or about 1,500 tons, of sediment in Little Bay. CLF's witness, Dr. Stephen Jones, testified that this disturbance will resuspend substantial amounts of sediment in the water and release nitrogen, pathogens, nutrients, and toxic contaminants. These releases, CLF contends, will have myriad impacts and threaten eelgrass habitats, oyster health, and oyster consumers. These concerns were raised before NHSEC and the Corps, and addressed by NHDES, NHSEC, and the Corps. NHSEC determined that, given required conditions, mitigation, and continued monitoring, "the Project will not have an unreasonable effect on water quality," and "the project will not have unreasonable adverse effect on the natural environment." The Corps made similar findings, which the court accords deference, see, e.g., Town of Norfolk v. U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1454 (1st Cir. 1992).
Admin. R. at 20314.
See Sept. 6, 2019 AM Tr. (doc. no. 37) at 40-47.
Admin. R. at 20321-26.
See Findings of Fact ¶¶ 23-59.
Admin. R. at 15731, 15769.
Findings of Fact ¶¶ 50-59.
118. CLF thus focuses its argument on allegations that developments since the reviews by NHSEC and Corps demonstrate that the model and assumptions used in approving the Little Bay route are deeply flawed. First, CLF attacks the reliability of the jet plow trial run. CLF raises various issues with the adequacy of the monitoring used, including problems with sensor calibration and resource deployment that limited the available data from some monitoring locations, and the method used to calculate observed nitrogen. Additionally, the trial run was interrupted for a little over an hour due to operational issues. CLF argues that this interruption means that the results gathered from the trial run are not representative of longer, sustained operations, as the sediment plume would have been larger without the interruption.
See Oct. 7, 2019 Jones Dep.; Oct. 7, 2019 Allen Dep. at 48-67. The parties submitted videotaped depositions, and transcripts of those depositions, in lieu of live witness testimony for the October 9, 2019 hearing. The parties thus have agreed that these depositions are part of the record.
Jet Plow Trial Summary Report Revised (doc. no. 47-1) at 12, 43.
See Oct. 7, 2019 Allen Dep. at 61-63.
119. Next, CLF points to changes in the operational plan for the installation. Last month, Eversource discovered an 8 to 12-foot-high sand wave in the planned path of the cables. As a result, Eversource has sought permission to slightly alter the cable route. CLF argues that sediment samples collected in support of the realignment application reveal that the sediments in the new path are made up of a larger proportion of fine sediments than assumed by the model. Disturbance of smaller, fine grain sediment particles is potentially more harmful than disturbance of larger, coarse grain sediments because fine sediments are more likely to be dispersed and are more reactive, which means that they are more likely to carry pollutants such as metals, pathogens, and other contaminants. Separately, after the jet plow trial run revealed a slower rate of progress than was expected and primarily modeled, Eversource now plans to divide each of the jet plow runs into two days. While it expects that installation across tidal flats will occur near slack low tide, the altered schedule may mean that cable installation across the channel of the bay begins at a different tide stage than was modeled.
See Oct. 7, 2019 Jones Dep. at 43; Oct. 7, 2019 Allen Dep. at 123-25.
Id.; CLF Ex. 37.
See Oct. 7, 2019 Jones Dep. at 19-23. CLF focuses on one core sample showing a particularly large proportion of silt and clay. But it appears from the report that this is a partial sample, consisting of sediment from 17-28 inches below the surface. A corresponding sample at the same location shows almost no silt and clay in the first 17 inches of depth, so it is unclear if the overall proportion of fine sediments at the sampling station is remarkable. See Eversource Ex. 37 at 9, Table 1.
Sept. 6, 2019 AM Tr. (Doc. no. 37) at 43-45.
Jet Plow Trial Summary Report Revised (doc. no. 47-1) at 12, 31-32.
See id.
120. CLF argues that these data deficiencies and deviations from earlier plans and modeling undermine the assumptions upon which NHSEC and the Corps approved the Little Bay route. In particular, CLF points to portions of a report from Eversource's modeling consultant, RPS. After the jet plow trial run, RPS prepared a new model which assumes a slower rate of progress and an interruption in plowing such that installation across the channel takes place during a flood current. This model predicts some concentrations of suspended sediment appearing outside of the originally modeled mixing zone in Great Bay, to the south of the installation site. But the report cautions that these deviations are based on conservative assumptions that may overestimate the plume, and that the monitoring results of the jet plow trial confirm that the assumptions are conservative.
Id. at 90-101.
Id. at 91, 93.
Id. at 91, 95, 98.
Id. at 91-2.
121. CLF argues the deviation locations are known eelgrass beds, and so are particularly problematic. NHDES, however, has accepted the results of the trial run and recommended that Eversource be permitted to proceed. CLF has identified areas of concern in a complicated engineering and monitoring project. But, as was the case before NHSEC, CLF has done little to "provide evidence that would demonstrate the Project's anticipated impacts" but instead "criticized the accuracy of [Eversource's] reports and plans."
Joint Timeline ¶ 54.
Admin. R. at 15727.
122. Significantly, CLF has not, for instance, pointed the court to any direct evidence regarding the impacts of similar projects anywhere in the United States, or to sediment disturbances occurring in such project. It has presented evidence regarding threats and possibilities, but insufficient material regarding likelihood. CLF has not met its burden of demonstrating that irreparable harm is likely, and not merely possible, absent an injunction. See Winter, 555 U.S. at 22, 129 S.Ct. 365.
Concrete mattresses
123. CLF argues that the installation of concrete mattresses will affect both the benthic habitat and the aesthetics of the bay. The covered areas, they contend, were eelgrass habitat at one time and might become habitat again in the future, but the mattresses would not support eelgrass. But, as NHSEC noted, "it is speculative that eelgrass will be reestablished in Little Bay and it is unknown as to how much of it will be reestablished, if any." The mattresses may also displace invertebrate species and be colonized by potentially competing flora and fauna. But CLF has not provided any meaningful basis to evaluate the significance of these potential threats in light of the relatively limited area of mattress installation, or potential offsetting benefits for certain species. Finally, CLF raises the potential aesthetic impacts of the mattresses. While CLF has criticized the conclusions of Eversource's aesthetics expert in the NHSEC proceeding, it has provided little direct evidence of aesthetic impacts. NHSEC, relying on evidence from both Eversource and Counsel for the Public's aesthetics experts determined that, especially in light of agreed mitigation, the mattresses "will not have an unreasonable adverse effect on aesthetics." While the installation of concrete mattresses will certainly have impacts on the environment, CLF has not demonstrated that it is likely to cause irreparable harm, environmentally or aesthetically.
See CLF Ex.34; Oct. 7, 2019 Jones Dep. at 51-53, 119-121.
Admin. R. at 15766; Oct. 7, 2019 Jones Dep. at 119-121, 123-127.
Oct. 7, 2019 Jones Dep. at 48-51.
See Admin. R. at 21337-41; Oct. 7, 2019 Jones Dep. at 126-128.
See Admin. R. at 20331-32; Oct. 7, 2019 Jones Dep. at 56, 128-130.
See Admin. R. at 15671-2, 15676. And, as the Corps argues, at least some portion of the concrete mattresses might be removed after installation if CLF ultimately prevails, so that any aesthetic harm is not irreparable. Corps’ Supp Mem. (doc. no. 48) at 17-18.
C. Balance of the equities and public interests
124. CLF has failed to demonstrate that the competing equities at play weighs, including the environmental interests embodied by CLF's advocacy and the Corp's administrative duties, necessitates a grant of its request for preliminary relief.
Any proposed findings or rulings not specifically addressed in this order are deemed unnecessary to this ruling.
For the reasons articulated herein, the court denies CLF's motion, and accordingly denies as moot all outstanding motions for bond.
See doc. no. 3.
See doc. no. 14.
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SO ORDERED .