LYNCH, Circuit Judge.
Plaintiff environmental organizations appeal from the district court's denial of preliminary injunctive relief barring construction of Segment 1 of a planned five-segment electric transmission power corridor in Maine. This was part of a larger project which would run from Quebec, Canada to Massachusetts.
The corridor would be built by Central Maine Power ("CMP"), a private company. Plaintiffs' challenge is to the Army Corps of Engineers' ("Corps") decision, after its performance of an Environmental Assessment ("EA"), to issue a permit authorizing CMP to take three actions in Segment 1: (1) temporarily fill certain wetlands, (2) permanently fill other wetlands, and (3) construct a tunnel under the Kennebec River. They allege that the Corps was required to issue not merely an EA, but a full Environmental Impact Statement ("EIS") and that the Corps acted arbitrarily or capriciously in conducting its EA and issuing a Finding of No Significant Impact ("FONSI"). They raise other secondary challenges to the Corps' EA and FONSI. We conclude that that plaintiffs have failed to show a likelihood of success on the merits. We affirm the district court's denial of a preliminary injunction.
A. State Agency Review of the CMP Corridor.
The parameters for the project were originally set by Massachusetts. Massachusetts selected the CMP proposal from fifty-three proposed clean energy projects in a competitive bidding process.
Maine also approved the project after much more extensive review than the Corps engaged in in its EA. After CMP won the contract to construct the corridor, the Maine Department of Environmental Protection ("MDEP") accepted written and oral testimony about the project, and after a hearing approved construction. MDEP concluded that the CMP Corridor in its entirety had minimal environmental impacts, provided that CMP took mitigation measures, which it has agreed to undertake. The approved route consists of five segments, four of which track existing transmission lines. MDEP reviewed all 8,600 acres of the project, and issued a 113-page order approving the plan subject to various additional conditions, which CMP adopted. The MDEP assessed the project impact on: (1) wildlife, (2) forest and habitat fragmentation, (3) depletion of natural resources, (4) disruption during construction, (5) the visual aesthetics of the region, and (6) the feasibility of alternatives. It concluded that subject to mitigation measures to limit the visual and environmental impacts of the project, the CMP corridor did not impose unreasonable environmental risks. The Corps reviewed the project as modified by the State of Maine.
The Maine Public Utilities Commission also approved the project after holding public hearings and accepting public comment. The Maine Law Court later upheld that approval.
B. Federal Agency Review of the CMP Corridor.
The Corps became involved in the CMP project because construction in Segment 1 will require (1) temporary filling of wetlands; (2) permanent filling of wetlands; and (3) construction of a tunnel under the Kennebec River.
Federal law requires the Corps to consider the environmental impact of permitting these activities. The National Environmental Protection Act ("NEPA") is a procedural statute. 42 U.S.C. § 4332(C). It sets out environmental policy objectives which are largely implemented through regulations promulgated by the Council on Environmental Quality ("CEQ") and individual agencies.
Two categories of CEQ and Corps regulations are relevant to this litigation. The first concerns the appropriate scope of the required review. It is uncontested that NEPA applies only to "major [f]ederal actions." 42 U.S.C. § 4332(C). Whether a project is a major federal action is itself governed by federal law. The scope of the required federal environmental review of the CMP corridor, as it involves a private project over state or private land, is in turn governed by regulations from two federal agencies, CEQ and the Corps.
CEQ regulations state "[i]n assessing whether NEPA applies or is otherwise fulfilled, Federal agencies should determine
The Corps has promulgated more detailed rules for determining the proper scope of its NEPA analysis. 33 C.F.R. pt. 325, app. B, § 7(b) ("Appendix B") says:
A second category of regulations governs the nature of the environmental inquiry the Corps is required to do. CEQ regulations say that agencies should identify categories of agency actions that do not normally require preparation of an EA or EIS. For all other actions, CEQ states agencies should first prepare an EA to determine whether more detailed analysis is necessary. 40 C.F.R. § 1501.4-5. The EA must "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a [FONSI]."
CEQ regulations set out ten factors for the agency to consider in assessing the impact from a proposed action and whether
C. Environmental Findings of the Corps, Conclusions of Law, and the Scope of Review.
Applying these rules, the Corps limited the scope of its environmental review to the jurisdictional waters that required a permit from the Corps for construction. It weighed each of the four Appendix B factors, and found no reason to expand the scope of its review beyond the environmental impact of its own permit. The Corps found that it had only limited jurisdiction over a small portion of the project, and accordingly this did not warrant review of the entire CMP Corridor. In particular, it repeatedly emphasized that activities requiring a Corps permit "compris[e] approximately 1.9% of the total project corridor." The Corps also found that the total cumulative federal oversight was insufficient to "federalize" the entire project. It stated, "[t]he scope of review... does not overlap with [other federal agencies' review]."
The Corps conducted an EA for the activities that fell within its limited jurisdiction. The Corps incorporated MDEP's comprehensive environmental analysis into its own analysis. It also incorporated the U.S. Fish and Wildlife Service's ("FWS") analysis of the impact of the project on endangered species. The U.S. Department of Energy ("USDOE") further acted as a consulting and cooperating agency during the Corps' EA process.
The Corps made findings as to a number of potential environmental impacts. It concluded, for example, that "forest fragmentation as a result of activities within ... [the Corps'] jurisdiction is not significant," and it assessed the potential loss of habitat for a number of Maine species, and in particular the impact under the Endangered Species Act. It also considered CMP's proposed mitigation measures. Its review took approximately three years. During that period, the Corps issued notice of its proposed action, and accepted hundreds of public comments. It also conducted a public hearing and considered alternatives to the proposed CMP route. In its 164-page final EA, issued on July 7, 2020, the Corps found no significant environmental impacts from the issuance of a permit for the three categories of activity requiring a Corps permit.
We outline the Corps' description of the entire project and the role of Segment 1 within it. The entire five-segment CMP corridor consists of approximately 144.9 miles of transmission lines running from the Maine/Canadian border to a substation in Lewiston, Maine, where it connects to existing power infrastructure. The Corps' EA found the majority of the corridor route follows existing transmission lines. It concluded that Segment 1 covers 53.1 miles, which passes through primarily commercially harvested timber forest, crosses the Kennebec River, then continues through largely undeveloped stretches of the Western Maine Mountains. In Segment 1, only 0.26 acres of wetlands will be permanently filled. The Corps noted that along Segment 1, 14.08 miles will remain entirely forested, and the remainder of the corridor will involve "tapered" clearing, which limits the impact on forest fragmentation.
The Corps stated that along the entire corridor, 4.87 acres of wetlands will be permanently filled during the construction, and by power stations and poles. An additional 47.64 acres will be temporarily filled during construction. 111.55 acres of wetlands will be affected by forest cover clearing. The Corps identified 1404 distinct wetlands and 757 vernal pools located within the transmission line portions of the entire
The Corps also noted that CMP will undertake a number of mitigation measures to offset environmental impacts from the corridor. CMP committed to "conserv[ing] 40,000 acres of land in the vicinity of Segment 1" "to address the project's impact on habitat fragmentation and wildlife movement." Along the entire project CMP committed to preserving "in perpetuity" a further 1022.4 acres of land, including 510.75 acres of wetlands.
The Corps also reviewed FWS's biological assessment and concluded that construction in the areas requiring a permit from the Corps had a limited impact on endangered species.
Accordingly, the Corps issued a FONSI, and did not prepare a more intensive EIS.
D. Other Federal Agency Review of the CMP Corridor project.
Three other federal agencies issued permits to CMP as well. The USDOE became involved solely as to the issuance of a Presidential Permit necessary to approve an international border crossing. On January 14, 2021, after plaintiffs brought this appeal, USDOE issued a Presidential Permit allowing the border crossing. In that context, USDOE reviewed the environmental impacts of the project before issuing that permit, but all parties agree that it did not conduct an EIS, as plaintiffs seek here.
The FWS also licensed the taking of endangered species during construction. FWS reviewed the impact of the project on endangered species, as reflected in the Corps' own EA. Finally, the Federal Energy Regulatory Commission ("FERC") approved CMP's transmission service agreements related to the corridor. FERC's review was limited to the potential impact from the project on rates paid by utility customers.
II. Procedural History
Plaintiffs brought this lawsuit on October 27, 2020.
On December 16, 2020, the district court denied plaintiffs' motion for preliminary injunctive relief. It held, "the Corps gave each of its regulatory factors (in particular the scoping factors of 33 C.F.R. Part 325, Appendix B, and intensity factors of 40 C.F.R. § 1508.27 (2018)) due consideration and reasonably exercised judgment on the appropriate application of the same."
On December 28, 2020, plaintiffs brought this interlocutory appeal. On December 30, 2020, plaintiffs filed an Emergency Motion for Injunction Pending Appeal. This court, as said, granted plaintiffs motion on January 15, 2021.
We review the district court's denial of plaintiffs' motion for a preliminary injunction for abuse of discretion.
To be clear about what is not at issue, plaintiffs make no argument that the Corps' general standards (codified in Appendix B) for whether an otherwise private project has been federalized are inadequate.
A central consideration, based on the record, articulated by the Corps as to each of the factors and as to its conclusion, was that its permitting jurisdiction over waters of the United States constituted only a small part of Segment 1 and an even
"The [Corps] is considered to have control and responsibility for portions of the project beyond the limits of Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a federal action." Appendix B § 7(b)(2). As we explained above, the Corps lists four factors that should typically be considered in determining whether sufficient federal control exists.
Plaintiffs do challenge the Corps' conclusion that only 1.9% of the project is within the Corps' jurisdiction, suggesting that the proper figure is 17%. Plaintiffs have failed to show, however, that the 1.9% figure excludes areas within the Corps' jurisdiction.
Nor do plaintiffs' arguments about cumulative federal involvement suffice to tip the scale. For the reasons we have adverted to, the Corps could rationally conclude that the involvement of other agencies here did not rise to the level of cumulative involvement sufficient to trigger Appendix B's federalization theory. The Corps' holistic determination that "sufficient `control and responsibility'" did not exist was not arbitrary or capricious.
Plaintiffs' remaining challenges also do not demonstrate a likelihood of success on the merits. Plaintiffs argue that (1) the Corps failed to adequately assess the baseline environmental conditions in Segment 1 in its EA, (2) apart from any argument about cumulative federal control, the Corps improperly "segmented" its own EA from the USDOE's analysis, (3) the Corps should have conducted an EIS, and (4) the Corps failed to provide adequate opportunity for notice and comment. In several of these claims plaintiffs rely on the premise we have rejected, that the Corps was obligated to review the entirety of Segment 1. In any event, none have merit.
The Corps assessed the baseline environmental conditions in its EA both in a standalone section, and in discussing the environmental impacts of the project. The Corps also incorporated the whole of MDEP's environmental analysis, which discussed baseline environmental conditions along the entirety of the CMP Corridor. Plaintiffs argue in conclusory terms that this assessment was insufficient. Plaintiffs have failed to show a likelihood of success on their claim that the Corps' assessment of the baseline environmental conditions was arbitrary and capricious.
Plaintiffs next claim that the Corps improperly "segmented" its environmental analysis from USDOE's separate assessment. This argument is waived. Plaintiffs did not raise it before the district court, and do not explain why they were unable to do so.
Plaintiffs also claim that the Corps should have conducted an EIS because "[t]he [corridor] will have significant impacts not only to aquatic resources but also the surrounding forest and wildlife." Again, plaintiffs fail to demonstrate that the Corps' decision to issue a FONSI instead of proceeding to an EIS was arbitrary or capricious. The Corps issued a 164-page EA, which analyzed the impacts of the Corps permits on wetlands, as well as surrounding forest land and wildlife. The Corps' conclusions matched MDEP's own detailed environmental analysis. The Corps considered factors relating to the "intensity" of environmental impact pursuant to CEQ regulations. 40 C.F.R. § 1508.27(b). Plaintiffs do not challenge those regulations. Instead, plaintiffs state "Segment 1 ... will run through more
Separately, plaintiffs claim that the project is scientifically "controversial" and therefore required an EIS.
Finally, plaintiffs say that the Corps failed to provide adequate opportunities for notice and comment before issuing the final FONSI. But the "Corps did provide public notice and held a public hearing as part of its EA review process. The Corps' public hearing complemented other public hearings associated with the [CMP Corridor] but overseen by other agencies."
The order of the district court is