Case study of a NEPA case causing unnecessary costs and deaths

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EcoTech Note:  One public policy supporting the clean energy transition is “permitting reform.”  This case study highlights a project begun in 2011 which was the subject of significant cost/delay owing to litigation under the National Environmental Protection Act (NEPA).  The litigation did not change the outcome but drove the cost up to $435 million, nearly 3 times the original estimate.  And ratepayers have to foot the bill.

Note also that there is a real Environmental Justice price paid, too.  The original project was required after the EPA ordered the two old fossil fuels plants to reduce pollution that The Clean Air Task Force estimated to be responsible for 1,400 asthma attacks and 83 deaths per year, mostly in the marginalized community where the plants were located.  The NEPA delays caused unnecessary deaths and disease.

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from The Breakthrough Journal, published as NEPA Nightmares III: The Surry-Skiffes Creek-Whealton Transmission Line

by Nikki Chiappa
Sep 25, 2024

The National Environmental Protection Act (NEPA) is a major source of permitting delay for important clean energy infrastructure. NEPA lawsuits, filed disproportionately by large environmental NGOs, pose a real, sizable, and concerning risk to clean energy development and the future of American decarbonization. The most contentious NEPA challenges filed between 2013 and 2022, on average, delayed clean energy projects by just under 4 years. The majority of those lawsuits were filed by a small set of national NGOs who lost upwards of 70% of their cases.

In most cases, NEPA litigation functions to delay and add cost to infrastructure development, not to improve environmental outcomes. The fight against the Surry-Skiffes Creek-Whealton transmission lines showcases how these lawsuits can even be weaponized to derail national climate policy.

This is the third installment of our ongoing series exposing the toll that the NEPA litigation doom loop takes on development of clean energy infrastructure in the United States. Stay tuned for future installments.

Surry-Skiffes Creek-Whealton

For decades the Yorktown Power Station and Chesapeake Power Station pumped nearly 3 million tons of carbon into the air every year in Hampton Roads, Virginia. The Clean Air Task Force estimated the two coal plants were responsible for 1,400 asthma attacks and 83 deaths per year. Like most coal plants, they were located in marginalized communities, meaning the most vulnerable bore the brunt of the burden of this pollution.

When the Environmental Protection Agency issued new air quality rules in 2011, Dominion Energy faced a choice: invest $1 billion in scrubbers to keep the plants online or decommission them entirely. Dominion chose the latter—a victory for local residents who had long suffered from the plants’ pollution.

Activists hailed the closures as a major win. The Executive Director of Sierra Club proclaimed “Local activists and everyday Virginians have been working for years to ensure that plants like these get cleaned up or phased out; today they all celebrate this victory.”

But the closure of the Yorktown and Chesapeake plants created a new problem: how to deliver reliable, clean power to nearly 285,000 customers and two major military bases. Dominion’s solution was the Surry-Skiffes Creek-Whealton Transmission line. The project included 3 parts: 7.76 miles of new transmission lines delivering power from a nearby nuclear plant, a new switching station, and 20.2 miles of new transmission lines from the switching station to a substation. Initially estimated to cost $155 million and take approximately 12 months to build, the project was quickly hamstrung by permitting delays.

In 2012, Dominion Energy began gathering permits from local, state and federal authorities. Both the state utility commission and the regional transmission organization greenlit the project and bolstered Dominion’s initial assessment that the line was necessary for reliability. Concurrently, the U.S. Army Corps of Engineers conducted the NEPA analysis.

The project was contentious, drawing criticism from preservationists who objected to the 17  transmission towers crossing the James River near Historic Jamestown. Their concern: the towers would mar the scenic view. “There are places in the watershed where you can look and see it pretty much as it was 400 years ago, and this stretch of the river is one of those places,” the director of programs for the Chesapeake Conservancy told the Bay Journal.

The environmentalists pushed for an alternative: burying the lines under the river, to the tune of $310 million, using cutting edge technology that would destroy known oyster habitats. Desperate to preserve the view, they even commissioned a study suggesting that the Yorktown plant remain online. However, the cost and technological challenges made the underground option impractical, and keeping the coal plant running would have violated the EPA’s new clean air standards. Additional suggestions were even further detached from the realities of grid management, as noted by both Dominion and PJM.

Despite opposition, the project garnered support from local leaders including Charles City County, the Hampton Roads Economic Development Alliance, and the Charles City County Center for Local History. The Director of the county’s history center shared during a hearing:

“It is the national interest in clean air that stands behind Dominion’s determination to retire coal-fired plants. It is the national interest in a failsafe electrical grid that stands behind Dominion’s determination to construct a 500 KV line.

Both those national interests are threatened by further delay. We are confident, based on our participation in the SCC proceeding and our familiarity with the volumes of evidence submitted, that the negative impact on Carter’s Grove and the Captain John Smith Chesapeake National Historic Trail, while unfortunate, are relatively minor. And that in this case, the national interest in historic preservation must bow to the national interest in clean energy and grid reliability.”

Ultimately, Dominion Energy moved forward with the project as designed, but not without concessions. The company donated nearly $90 million to historic preservation projects in the region, aiming to mitigate concerns. Shortly thereafter, the U.S. Army Corps of Engineers issued the project’s final permit, 3 years later than anticipated. Because of the delay, the Department of Energy had to issue a temporary exemption to its new clean air standards to allow the Yorktown plant to stay online.

What followed was a saga of legal theater. In 2017, the National Parks Conservation Association, National Trust for Historic Preservation, and Preservation Virginia filed a lawsuit against the Army Corps of Engineers, demanding a more extensive NEPA review. The judge denied the request to pause construction and later rejected their argument entirely. The conservation groups appealed. The line was built and energized on February 26th, 2019. In a convoluted ruling on March 1st, 2019, the Circuit Court reversed the previous opinion, ordering the Army Corps to conduct a more extensive review.

The Army Corps was then put in the unique position of conducting an environmental review for a project that was already built. Today, the line is still delivering reliable power to the community but the Environmental Impact Statement isn’t finished. The 189 page draft, however, confirmed what had been clear from the start: the Surry-Skiffes Creek-Whealton transmission line was the lowest-impact, most feasible option all along. The price tag, however, has ballooned to $435 million—nearly three times the original estimate. And ratepayers are responsible for the bill.

This case exemplifies the dysfunction of NEPA litigation. NEPA, a tool intended to bolster environmental protection, is so often misused to delay projects without achieving meaningful environmental improvements. In the case of the Surry-Skiffes Creek-Whealton transmission line, winning the legal battle simply meant producing more paperwork—paperwork that has not and likely will not change the project. That’s exactly why NEPA cannot be the guardian of environmental justice that many believe it to be.

Paperwork and bureaucratic delays do not provide protection; only clear and enforceable policies, like the EPA’s air quality rules, can do that.

Stay tuned for future installments of NEPA Nightmares.

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  • 6/11/2012: Dominion applies to the Virginia State Corporation Commission (SCC) for a Certificate of Public Necessity and Convenience (CPCN)
  • 8/9/2013: Dominion submits application to the U.S. Army Corps of Engineers, initiating the NEPA process
  • 11/26/13: The Virginia SCC grants CPCN
  • 4/16/2015: The Virginia Supreme Court directs Dominion to secure approval from James City County for small stretch of land not covered by the SCC’s CPCN
  • 4/24/2017: Dominion signs mitigation agreement
  • 6/12/2017: The Army Corps of Engineers issues finalized NEPA documents
  • 6/13/2017: PJM requests MATS exemption for Yorktown coal plant
  • 7/12/2017: Plaintiffs file initial complaint in the U.S. District Court for the District of Columbia seeking a preliminary injunction
  • 8/1/2017: Construction is scheduled to start
  • 10/20/2017: The U.S. District Court for the District of Columbia denies motion for preliminary injunction
  • 5/24/2018: The U.S. District Court for the District of Columbia confirms a robust EIS was not necessary to comply with NEPA
  • 2/26/2019: The Skiffes Creek project is energized
  • 3/1/2019: The U.S. Court of Appeals for the District of Columbia overrules the prior District Court ruling and directs the Corps to prepare an Environmental Impact Statement
  • 6/21/2019: The U.S. Army Corps of Engineers issues Notice of Intent to prepare an Environmental Impact Statement
  • 11/27/2020: The U.S. Army Corps of Engineers publishes draft Environmental Impact Statement

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