UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

NATIONAL PARKS CONSERVATION )

ASSOCIATION, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 12-1690 (RWR)

)

SALLY JEWELL, et al., )

1

)

Defendants. )

______________________________)

MEMORANDUM OPINION

The National Parks Conservation Association and nine other

organizations brought this suit against the Secretary of the 2

Interior and the Northeast Regional Director of the U.S. National

Park Service (“NPS”) challenging NPS’ decision to grant special

use permits and an extended right-of-way for the construction of

the Susquehanna to Roseland Transmission Line (“S-R Line”)

through three national park areas -- the Delaware Water Gap

National Recreation Area, the Middle Delaware National Scenic and

Recreational River, and the Appalachian National Scenic Trail

 Under Federal Rule of Civil Procedure 25(d), current 1

Secretary of the Interior Sally Jewell is automatically

substituted for former Secretary Kenneth Salazar.

 The other plaintiff organizations include the Appalachian 2

Mountain Club, Appalachian Trail Conservancy, Association of New

Jersey Environmental Commissions, Delaware Riverkeeper Network,

New Jersey Highlands Coalition, New York-New Jersey Trail

Conference, Rock the Earth, Sierra Club and Stop the Lines. 
- 2 -

(collectively, “the Parks”). PPL Electric Utilities Corporation

and Public Service Electric and Gas Company, the utilities

companies that applied to NPS to build the S-R Line, intervened

in this matter. Plaintiffs moved for summary judgment arguing

that the NPS failed to properly review the environmental

consequences of the S-R Line project in the environmental impact

statement (“EIS”), in violation of the National Environmental

Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq., and that NPS

unlawfully decided to grant the special use permits and an

extended right-of-way, in violation of the NPS Organic Act, 16

U.S.C. § 1 et seq. and the Wild and Scenic Rivers Act (“WSRA”),

16 U.S.C. § 1271 et seq. The federal defendants and the

intervenor defendant utilities companies cross-moved for summary

judgment. Because NPS’ actions were not arbitrary and

capricious, the plaintiffs’ motion for summary judgment will be

denied and the defendants’ cross-motions for summary judgment

will be granted.3

BACKGROUND

The intervenor-defendants own a right-of-way through the

Parks upon which the current 230 kilovolt (“kV”) Bushkill-to-

 The federal defendants also move to strike the declaration 3

of Pamela Underhill and all references to the declaration in the

plaintiffs’ summary judgment reply brief. Because the summary

judgment motions will be decided without consideration of the

Underhill declaration, the federal defendants’ motion to strike

will be denied as moot. Moreover, the plaintiffs’ motion for a

preliminary injunction will be denied as moot.
- 3 -

Kittatinny transmission line (“B-K Line”) stands. Compl. ¶ 44;

Pls.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Pls.’ Mem.”) at

7; Def.-Intervenors’ Mem. of P. & A. in Opp’n to Pls.’ Mot. for

Summ. J. and in Supp. of Def.-Intervenors’ Cross-Mot. for Summ.

J. (“Intervenor Defs.’ Mem.”) at 7; Mem. in Supp. of Fed. Defs.’

Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J.

(“Federal Defs.’ Mem.”) at 2. In 2007, PJM Interconnection, LLC,

(“PJM”), which oversees the electrical transmission system in the 

region, identified electric grid reliability violations with the

B-K Line. Intervenor Defs.’ Mem. at 5; Federal Defs.’ Mem. at 2;

AR 73982, 78554. PJM decided that a 500-kV electric transmission

line was the preferred solution for the reliability violations

which had been identified. NPS Susquehanna to Roseland 500kV

Transmission Line Right-of-Way and Special Use Permit Final

Environmental Impact Statement (“FEIS”) at 4 (AR 47865);

AR 73982. The intervenor defendants applied to NPS for a special

use permit to allow for “construction, maintenance and operation

of the S-R Line across [the Parks], the expansion of the existing

[right-of-way], and the replacement of an existing 230-kV

transmission line it owns.” FEIS at 4 (AR 47865); see also NPS

Susquehanna to Roseland 500-kV Transmission Line Right-of-Way and

Special Use Permit, Record of Decision (“ROD”) at 1 (AR 116587);

Compl. ¶ 53. The proposed S-R Line would replace the existing 

B-K Line and include larger towers, an additional circuit, and a
- 4 -

widened right-of-way to accommodate the changes. Compl. ¶ 53;

FEIS at 4 (AR 47865); ROD at 1 (AR 116587). 

NPS conducted an environmental review and published a Draft

Environmental Impact Statement (“DEIS”) in 2011 that identified

various alternative routes for building a replacement

transmission line, identified mitigation measures, and discussed

the environmental consequences of each alternative. See Federal

Defs.’ Mem. at 8; Intervenor Defs.’ Mem. at 11; ROD at 21

(AR 116607). In January 2012, the applicants proposed a

methodology for compensatory mitigation and estimated that

$36,494,241 should be provided in compensatory mitigation for the

project in their comments to the DEIS. AR 78239-48. After the

public comment period closed, NPS issued the Final Environmental

Impact Statement (“FEIS”) and identified NPS’ preferred

alternative as the applicant’s proposed route. FEIS at vii

(AR 47840); Federal Defs.’ Mem. at 5. NPS then issued the Record

of Decision (“ROD”) in October 2012 that granted the utilities

companies’ request for special use permits and an expanded rightof-way for the construction of the S-R Line. Pls.’ Mem. at 26;

Intervenor Defs.’ Mem. at 13; Federal Defs.’ Mem. at 6-7; ROD at

1-30 (AR 116586-616). In December 2012, NPS issued the special

use permits to the utilities company for the project, and the

utilities companies and the federal defendants entered into a

Memorandum of Agreement that set forth details about the
- 5 -

compensatory mitigation measures and established the Middle

Delaware Mitigation Fund (“the Fund”). Intervenor Defs.’ Mem. at

16-17; Federal Defs.’ Mem. at 7; see Federal Defs.’ Opp’n to

Pls.’ Mot. for a Prelim. Inj., Ex. B, Memorandum of Agreement. 

DISCUSSION

Summary judgment may be granted on a claim if “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

In a case involving review of a final agency action

under the APA, however, the standard set forth in Rule

56(c) does not apply because of the limited role of a

court in reviewing the administrative record. . . . 

“[T]he function of the district court is to determine

whether or not as a matter of law the evidence in the

administrative record permitted the agency to make the

decision it did.” . . . Summary judgment thus serves

as the mechanism for deciding, as a matter of law,

whether the agency action is supported by the

administrative record and otherwise consistent with the

APA standard of review.

Center for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138

(D.D.C. 2012) (quoting Sierra Club v. Mainella, 459 F. Supp. 2d

76, 89–90 (D.D.C. 2006)); see also Flaherty v. Bryson, 850 F.

Supp. 2d 38, 47 (D.D.C. 2012) (“Because this case involves a

challenge to a final administrative decision, the Court’s review

on summary judgment is limited to the Administrative Record.”).

 The complaint asserts eleven causes of action including

eight NEPA claims, one NPS Organic Act claim, and two WSRA 4

 The complaint asserts that NPS violated NEPA by failing to 4

consider all reasonable alternatives for the S-R Line project in
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claims. See Compl. at 33-41. Review of final agency actions

under these statutes is governed by the arbitrary and capricious

standard of the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701-706. See Nevada v. Dep’t of Energy, 457 F.3d 78, 87 (D.C.

Cir. 2006) (stating that courts “apply the APA’s arbitrary and

capricious standard to a NEPA challenge”); Daingerfield Island

Protective Soc’y v. Babbitt, 40 F.3d 442, 446 (D.C. Cir. 1994)

(finding that the NPS’ exercise of discretion under the NPS

Organic Act must be upheld unless it violated the APA’s arbitrary

and capricious standard); Hells Canyon Alliance v. U.S. Forest

Serv., 227 F.3d 1170, 1176-77 (9th Cir. 2000) (stating that

review of the WSRA is governed by the APA). “Generally, ‘[t]he

Count Four, failing to consider and disclose all direct and

indirect effects of the S-R Line project in Counts Five and Six,

failing to consider and disclose a connected action in Count

Seven, failing to consider cumulative impacts of the S-R Line

project in Count Eight, failing to consider and disclose

mitigation measures in Count Nine, failing to prepare a

supplemental EIS in Count Ten, and prejudging and approving the

selected alternative in Count Eleven. However, the plaintiffs’

summary judgment memorandum asserts arguments directed at claims

in Counts Four, Five, Six, Nine, and Ten. The plaintiffs’

summary judgment memorandum does not address directly Count Seven

or Count Eight, but their arguments supporting Counts Five and

Six regarding the scope of the agency’s review appear to involve

the claims in Counts Seven and Eight. In addition, the

plaintiffs’ arguments supporting Count Eleven’s claim of

prejudgment are based on the plaintiffs’ arguments regarding

mitigation measures. See Pls.’ Mem. at 15-17. The plaintiffs’

claim in Count Eleven, then, depends on the resolution of their

claims in Count Nine. Counts Nine and Eleven will be addressed

in Section I.A., Count Ten will be addressed in Section I.B.,

Count Four will be addressed in Section I.C., and Counts Five to

Eight will be addressed in Section I.D. below.
- 7 -

scope of review under the ‘arbitrary and capricious’ standard is

narrow and a court is not to substitute its judgment for that of

the agency.’” Pettiford v. Sec’y of Navy, 774 F. Supp. 2d 173,

181 (D.D.C. 2011) (quoting Motor Vehicle Mfrs. Ass'n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “However,

this deferential standard cannot permit courts ‘merely to rubber

stamp agency actions,’ . . . nor be used to shield the agency’s

decision from undergoing a ‘thorough, probing, in-depth review.’”

Flaherty, 850 F. Supp. 2d at 47 (quoting NRDC v. Daley, 209 F.3d

747, 755 (D.C. Cir. 2000); Midtec Paper Corp. v. United States,

857 F.2d 1487, 1499 (D.C. Cir. 1988)). “Courts ‘will uphold a

decision of less than ideal clarity if the agency’s path may

reasonably be discerned.’” Public Citizen, Inc. v. FAA, 988 F.2d

186, 197 (D.C. Cir. 1993) (quoting Bowman Transp., Inc. v.

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). 

I. NATIONAL ENVIRONMENTAL PROTECTION ACT

“NEPA ‘requires that agencies assess the environmental

consequences of federal projects by following certain procedures

during the decision-making process.’” Brady Campaign to Prevent

Gun Violence v. Salazar, 612 F. Supp. 2d 1, 13 (D.D.C. 2009)

(quoting City of Alexandria, Va. v. Slater, 198 F.3d 862, 866

(D.C. Cir. 1999)). “[T]he twofold purpose of NEPA [is] to ensure

that a federal agency considers environmental consequences in

making its decision and to inform the public that the agency has
- 8 -

done so.” Wilderness Soc’y v. Salazar, 603 F. Supp. 2d 52, 65-66

(D.D.C. 2009) (citing Weinberger v. Catholic Action of

Hawaii/Peace Educ. Project, 454 U.S. 139, 143 (1981)); see also

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349

(1989). 

A. Mitigation measures 

NEPA requires a federal agency to prepare an EIS for “‘major

Federal actions significantly affecting the quality of the human

environment.’” Duncan’s Point Lot Owners Ass’n v. Fed. Energy

Regulatory Comm’n, 522 F.3d 371, 376 (D.C. Cir. 2008) (quoting 42

U.S.C. § 4332(2)(C)). One of the purposes of the EIS is to

“sharply defin[e] the issues and provid[e] a clear basis for

choice among options by the decisionmaker and the public.” 40

C.F.R. § 1502.14. The regulations of the Council on

Environmental Quality (“CEQ”) state that an EIS must “[i]nclude 5

appropriate mitigation measures not already included in the

proposed action or alternatives[,]” 40 C.F.R. § 1502.14(f), and

 The CEQ was established by NEPA and has promulgated 5

regulations interpreting NEPA’s requirements. The D.C. Circuit

has recognized that “‘the binding effect of CEQ regulations is

far from clear,’” Nevada v. Dep’t of Energy, 457 F.3d 78, 87 n.5

(D.C. Cir. 2006) (quoting TOMAC v. Norton, 433 F.3d 852, 861

(D.C. Cir. 2006)), but “both agencies and courts have

consistently looked to them for guidance[,]” Flaherty, 850 F.

Supp. 2d at 69 n.19 (citing, among others, Sierra Club v. Van

Antwerp, 661 F.3d 1147, 1154–55 (D.C. Cir. 2011)).
- 9 -

discuss “means to mitigate adverse environmental impacts[,]” 40

C.F.R. § 1502.16(h).6

“[O]ne important ingredient of an [environmental impact

statement] is the discussion of steps that can be taken to

mitigate adverse environmental consequences.” Robertson, 490

U.S. at 351. Robertson explained that without a discussion about

mitigation measures, “neither the agency nor other interested

groups and individuals can properly evaluate the severity of the

adverse effects.” Id. at 352. However, NEPA does not “demand

the presence of a fully developed plan that will mitigate

environmental harm before an agency can act” or a “detailed

explanation of specific measures which will be employed to

mitigate the adverse impacts of a proposed action[.]” Id. at

353. Instead, an agency’s discussion of potential mitigation

measures in an EIS must include “sufficient detail to ensure that

environmental consequences have been fairly evaluated.” Theodore

 The CEQ regulations state that 6

Mitigation includes:

(a) Avoiding the impact altogether by not taking a

certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or

magnitude of the action and its implementation.

(c) Rectifying the impact by repairing,

rehabilitating, or restoring the affected

environment.

(d) Reducing or eliminating the impact over time

by preservation and maintenance operations during

the life of the action.

(e) Compensating for the impact by replacing or

providing substitute resources or environments.

40 C.F.R. § 1508.20.
- 10 -

Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 503 (D.C.

Cir. 2010) (quoting Robertson, 490 U.S. at 352). “NEPA ‘does not

require agencies to discuss any particular mitigation plans that

they might put in place,’ nor does it ‘require agencies –- or

third parties –- to effect any.’” Id. (quoting Citizens Against

Burlington, Inc., v. Busey, 938 F.2d 190, 206 (D.C. Cir. 1991)). 

After preparing a draft EIS, an agency must “[r]equest comments

from the public, affirmatively soliciting comments from those

persons or organizations who may be interested or affected.” 40

C.F.R. § 1503.1(a)(4).

“‘The court’s role is to ensure that the agency takes a

‘hard look’ at the environmental consequences of an action, not

to interject its own judgment as to the course of action to be

taken.’” Wilderness Soc’y, 603 F. Supp. 2d at 59 (quoting

Hammond v. Norton, 370 F. Supp. 2d 226, 240 (D.D.C. 2005)). “If

the adverse environmental effects of the proposed action are

adequately identified and evaluated, the agency is not

constrained by NEPA from deciding that other values outweigh the

environmental costs.” Robertson, 490 U.S. at 350. 

Plaintiffs argue that NPS’ discussion of mitigation measures

in the EIS is deficient for two reasons. First, plaintiffs argue

that NPS did not take a “hard look” at the environmental

consequences because the FEIS included only general mitigation

measures that do not include the contents of the mitigation
- 11 -

plans, and did not provide “supporting analytical data” about the

mitigation measures or assessments about the actual mitigating

effects of the plans. Pls.’ Mem. at 42-43. Second, plaintiffs 

contend that NPS failed to analyze in the EIS the compensatory

mitigation measures. Id. at 39-40. Thus, the public never had

an opportunity to evaluate the compensatory mitigation measures

and assess the merits of the Fund, including what land would be

acquired and how the agency decided that the compensatory

mitigation would mitigate the environmental harm arising from the

project. Id.; Pls.’ Reply at 33-35. 

An EIS is not required to contain “detailed, uncheangeable

mitigation plans for long-term development projects.” Theodore

Roosevelt Conservation P’ship, 616 F.3d at 517. In Theodore

Roosevelt, the D.C. Circuit considered whether the Bureau of Land

Management (“BLM”) satisfied NEPA’s requirement to include

mitigation measures when it issued an EIS before authorizing

drilling permits in Wyoming. The EIS included several specific

mitigation measures to protect wildlife and plants, including

limitations on building structures near the greater sage grouse’s

habitat and muffling generator noises to avoid disturbances. 

Theodore Roosevelt, 616 F.3d at 516. The mitigation plan also

discussed performance goals which the agency would strive to

accomplish, included flexible monitoring and protection measures

which the BLM could modify, and relied on a “review team” which
- 12 -

would develop specific criteria to evaluate adherence to those

goals. Id. In addition, the mitigation plan included particular

protective measures which should be applied for each drill plan

but recognized that the “exact application of mitigation measures

will be determined on a site-specific basis[.]” Id. The D.C.

Circuit reviewed whether the EIS was sufficient and held that

NEPA’s mandate to discuss mitigation measures was met because the

agency “set[] forth both fixed mitigation measures and an

adaptive management plan[.]” Id. at 517. 

 In this case, the FEIS discusses potential mitigation

measures and their effectiveness. See FEIS at 386 (AR 48247)

(wetlands), 431 (AR 48292) (landscape connectivity), 463-64 (AR

48324-25) (special status species). Appendix F of the FEIS sets

forth a wide range of potential mitigation measures and plans

covering impacts to the Parks’ resources. See FEIS, App. F (AR

48920-45). For example, NPS requires the applicants to submit

specific mitigation plans (i.e., drilling plans, spill prevention

and response plan, soil and erosion control plans, vegetation

management plans, etc.) for NPS review and approval, identified

the goals and procedures to be implemented by the applicants’

plans, discussed particular materials to be used in construction,

and asserted a variety of other mitigation measures. Id. 

Because the FEIS in this case sets forth both “fixed mitigation

measures” and “adaptive management plan[s]” in the EIS similar to
- 13 -

those upheld in Theodore Roosevelt, NPS did not violate NEPA’s

mandate to discuss possible mitigation measures. 

The plaintiffs’ argument regarding compensatory mitigation

also fails because the plaintiff has not shown that the agency’s

analysis in the EIS was insufficient. The FEIS states that 

[i]n instances where impacts cannot be avoided and

mitigation is not feasible, compensation for resources

lost or degraded through project construction,

operation, and maintenance would be required. . . . 

Compensation would be used to help ensure the

stewardship of natural, cultural, scenic, and

recreational resources, thus allowing for [among other

uses] . . . acquisition in fee or easement of lands

within or adjacent to [the Appalachain National Scenic

Trail] and [the Delaware Water Gap National Recreation

Area] . . . [and] implementation of the parks’ existing

natural, historic, and recreational plans[.] 

FEIS at 72-73 (AR 47933-34). The FEIS further states that “[t]he

preferred alternative also includes mitigation in the form of

compensation for unavoidable adverse impacts. . . . 

Compensation would only be considered for adverse impacts that

cannot be completely avoided.” FEIS at 75 (AR 47936). The

discussion in the FEIS reflects that the environmental

consequences of the construction of the S-R Line were identified

and compensation was considered as a part of the multi-component

mitigation plan. For example, the FEIS discussed a specific

feature of the compensatory mitigation when it referred to the

requirement that “for new actions where impacts on wetlands

cannot be avoided, proposals must include plans for compensatory

mitigation that restores wetlands on NPS lands at a minimum
- 14 -

acreage ratio of 1 to 1 for the preferred alternative.” FEIS at

386 (AR 48247). This level of detail comports with NEPA

requirements. 

These circumstances are similar to those in Busey. In that

case, the FAA issued an EIS that set forth a general plan

regarding mitigation efforts to blunt the effects of a

significant increase of noise from an expanded airport. Busey,

938 F.2d at 205. There, the EIS discussed mitigation measures

that included buying property from owners of nearby locations,

insulating doors and windows of nearby homes and buying easements

from other home owners; estimated the cost of such measures; and

explained that a future study will “flesh out the details of the

mitigation plans.” Id. The plaintiffs in that case “want[ed]

the specifics now; . . . [and] demand[ed] that the FAA finish its

. . . study before the agency be allowed to approve the . . .

proposal.” Id. at 206. The D.C. Circuit found that the

plaintiffs sought more information in the EIS than NEPA required

and that the EIS in Busey was reasonably complete even though the

study that would have provided details for the mitigation plans

had not been completed. 

Here, the plaintiffs also want the specifics of compensatory

mitigation measures now, but the FEIS was required to provide

only “a reasonably complete discussion of potential mitigation

measures.” See Busey, 938 F.2d at 206 (quoting Robertson, 490
- 15 -

U.S. at 352). The plaintiffs note correctly that the FEIS did

not provide an estimate of the compensatory mitigation amount. 

However, the administrative record reflects that the amount of

potential compensatory mitigation varied significantly even after

the FEIS was issued. For example, the January 2012 applicants’

proposal in their comments to the DEIS was $36 million, AR 78246-

47, the July 2012 net environmental benefit analysis prepared by

an NPS contractor was $89 million, AR 58377, a September 2012 NPS

internal draft memorandum reflects the total amount of $62

million, AR 73356-57, the October 2012 ROD required at least $56

million, ROD at 15 (AR 116601), and the Memorandum of Agreement

creating the Fund required the applicants to deposit $66 million

in the Fund, Mem. of Agreement at 2. Although an estimate could

have been provided by NPS at the EIS stage, the plaintiffs were

aware of the applicants’ proposed methodology and suggested

compensation amount that was included in the DEIS comments, AR

78239-48, and appended to the FEIS for informational purposes,

FEIS, App. N (AR 49830-50045). The plaintiffs have not shown

that the omission of NPS’ own compensatory mitigation estimate in

the FEIS pending negotiations with the applicants to flesh out

the full economic value of the compensatory mitigation

constitutes a NEPA violation. In particular, the plaintiffs have

not shown how the omission of this figure undermines the FEIS’

detailed analysis of the environmental consequences of the agency
- 16 -

action. The general mitigation plans included in the FEIS were

“reasonably complete” because it included “sufficient detail to

ensure that environmental consequences have been fairly

evaluated[.]” Robertson, 490 at 352. Because the plaintiffs

have not shown that NPS did not take a “hard look” at the

environmental consequences of the agency action or that the

agency failed to include mitigation measures as required by the

CEQ regulations, the defendants are entitled to summary judgment

on this claim.

B. Supplemental EIS

The plaintiffs argue that NPS violated NEPA when NPS did not

prepare a supplemental EIS when NPS and the applicants reached an

agreement that the applicants would deposit $66 million in the

Fund. Pls.’ Mem. at 40-41. A supplemental EIS is required when

“[t]here are significant new circumstances or information

relevant to environmental concerns and bearing on the proposed

action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). “A

supplemental EIS is only required where new information provides

a seriously different picture of the environmental landscape.” 

City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 274 (D.C. Cir.

2002) (internal quotation marks omitted); see also Blue Ridge

Envtl. Def. League v. Nuclear Regulatory Comm’n, 716 F.3d 183,

196 (D.C. Cir. 2013) (“New and significant information presents a

seriously different picture of the environmental impact of the
- 17 -

proposed project from what was previously envisioned.” (internal

quotation marks omitted)). “[W]hether a change is ‘substantial’

so as to warrant [a supplemental EIS] is determined not by the

modification in the abstract, but rather by the significance of

the environmental effects of the changes.” Pub. Emps. for Envtl.

Responsibility v. U.S. Dep’t of the Interior, 832 F. Supp. 2d 5,

29-30 (D.D.C. 2011). 

The CEQ regulations reflect that “[a] significant effect may

exist even if the Federal agency believes that on balance the

effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1). 

[E]ven if post-EIS changes in a project are beneficial

to the environment or are intended to mitigate

environmental impact, if those changes are significant,

a supplemental statement is required:

The proper question is not the intent behind the

actions, but the significance of the environmental

impacts. And even if . . . the new land use will

be beneficial in impact, a beneficial impact must

nevertheless be discussed in an EIS, so long as it

is significant. NEPA is concerned with all

significant environmental effects, not merely

adverse ones.

National Wildlife Fed’n v. Marsh, 721 F.2d 767, 782-83 (11th Cir.

1983) (quoting Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th

Cir. 1981)); but see Alliance to Save the Mattaponi v. U.S. Army

Corps of Eng’rs, 606 F. Supp. 2d 121, 137 (D.D.C. 2009) (“When a

change reduces the environmental effects of an action, a

supplemental EIS is not required.”). However, supplementation of

an EIS is not necessary when the mitigation measure is within the

scope of the EIS’s discussion of mitigation measures or is a
- 18 -

minor variation from it. See Sierra Club v. Van Antwerp, 526

F.3d 1353, 1360 (11th Cir. 2008) (finding that where a proposed

action is a “minimizing measure,” the agency does not need to

supplement the EIS because “a minimizing measure’s effects on the

environment will usually fall within the scope of the original

NEPA analysis”); see also Russell Country Sportsmen v. United

States Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011) (“[A]

modified alternative [that] only lessens environmental impacts

may tend to show that the new alternative is a ‘minor variation

of one of the alternatives discussed in the draft EIS’ and is

‘qualitatively within the spectrum of alternatives that were

discussed in the draft [EIS].’” (quoting Forty Most Asked

Questions Concerning CEQ’s National Environmental Policy Act

Regulations, 46 Fed. Reg. 18,026, 18,035 (Mar. 23, 1981)). 

Therefore, new information that provides significant beneficial

environmental effects triggers the supplemental EIS requirement,

but new information which results in environmental effects that

are within the scope of the EIS’ analysis do not require

supplementation. 

“The decision to undertake a supplemental EIS is subject to

a ‘rule of reason.’” City of Olmsted Falls, Ohio, 292 F.3d at

274 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374

(1989)). 

Application of the “rule of reason” . . . turns on the

value of the new information to the still pending
- 19 -

decisionmaking process. In this respect the decision

whether to prepare a supplemental EIS is similar to the

decision whether to prepare an EIS in the first

instance: If there remains “major Federal actio[n]” to

occur, and if the new information is sufficient to show

that the remaining action will “affec[t] the quality of

the human environment” in a significant manner or to a

significant extent not already considered, a

supplemental EIS must be prepared.

Or. Natural Res. Council, 490 U.S. at 374; see also Nat’l Comm.

for the New River v. Fed. Energy Regulatory Comm’n, 373 F.3d

1323, 1330 (D.C. Cir. 2004). An agency’s decision whether to 7

prepare a supplemental EIS is entitled to deference under the

arbitrary and capricious standard. Nat’l Comm. for the New

River, 373 F.3d at 1330 (citing Or. Natural Res. Council, 490

U.S. at 375-76); City of Olmsted Falls, Ohio, 292 F.3d at 274.

 The significance of the impacts depends on the “context” 7

and “intensity” of the impacts as defined by the CEQ regulations. 

Or. Natural Res. Council, 490 U.S. at 374 n.20. The CEQ

regulations state:

(a) Context. This means that the significance of an

action must be analyzed in several contexts such as

society as a whole (human, national), the affected

region, the affected interests, and the locality.

Significance varies with the setting of the proposed

action. . . . 

(b) Intensity. This refers to the severity of impact.

Responsible officials must bear in mind that more than

one agency may make decisions about partial aspects of

a major action. The following should be considered in

evaluating intensity:

(1) Impacts that may be both beneficial and

adverse. A significant effect may exist even if

the Federal agency believes that on balance the

effect will be beneficial. . . . 

40 C.F.R. § 1508.27.
- 20 -

Here, the plaintiffs assert that the new information

identified in the ROD -- the amount of money that the applicants

must place in the Fund -- is significant enough to necessitate a

supplemental EIS. Pls.’ Mem. at 40-41. Specifically, “[t]he

expenditure of $66 million to undertake land acquisitions and to

implement stewardship activities in and around the Parks will

have significant environmental impacts that have not yet been

considered under NEPA, and an SEIS is required accordingly.” 

Pls.’ Reply at 35. The federal defendants argue that no

supplemental EIS is required because the amount of compensatory

mitigation does not change the environmental consequences that

were identified and addressed by the FEIS. Federal Defs.’ Mem.

at 38-39; Federal Defs.’ Reply at 17-20. Overall, the federal

defendants argue that “[a]lthough the details and final figure

would change as a result of NPS’ independent assessment and

computations,” the FEIS was sufficient by disclosing the adverse

impacts and acknowledging that cash compensation would be used to

obtain other lands. Federal Defs.’ Reply at 19-20. 

The plaintiffs have not met their burden of showing that the

new information is significant enough to require NPS to prepare a

supplemental EIS. The amount of compensatory mitigation and the

details about the Fund revealed by the ROD and the Memorandum of

Agreement do not change the assessment of adverse environmental

consequences of the action addressed in the FEIS. The
- 21 -

applicant’s comments to the DEIS provided the utilities

companies’ methodology for arriving at the compensatory

mitigation figure, including the specific per acre value. The

plaintiffs point to no authority that reflects that the change in

potential mitigation funds from the applicants’ proposed figure

of $36,494,241 to the Memorandum of Agreement’s figure of $66

million is significant or that this increase in compensatory

mitigation substantially changes the beneficial environmental

consequences of the action. The FEIS includes compensatory

mitigation as a part of the mitigation plan and the plaintiffs

have not shown how the new information, the precise amount of

compensation, represents a major variation from or was

qualitatively different than the discussion of compensatory

mitigation in the FEIS. 

Although NPS could have provided its own independent

analysis and methodology for identifying the corresponding

monetary value between the compensatory mitigation measures and

the adverse impacts in the FEIS, the plaintiffs have not shown

that NPS was required to do so. Thus, NPS’ decision to not

prepare a supplement regarding compensatory mitigation is

entitled to deference and the plaintiffs have not shown that the

NPS acted arbitrarily and capriciously when it failed to

supplement the FEIS after determining the final amount of

compensatory mitigation.
- 22 -

C. Scope of alternatives 

The plaintiffs also argue that NPS did not consider a

reasonable range of alternatives in the EIS to the approval of

the special use permits and expanded right-of-way for the S-R

Line project. Pls.’ Mem. at 43-44. In particular, the

plaintiffs assert that NPS failed to consider non-transmission

alternatives such as “[t]he use of distributed energy generation

sites and localized renewable energy[.]” Id. at 44. Under NEPA,

agencies must “[r]igorously 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.” 40 C.F.R. § 1502.14(a). “[A]n

agency bears the responsibility for deciding which alternatives

to consider in an [EIS].” Busey, 938 F.2d at 195. An agency

must follow the “rule of reason” which governs “both which

alternatives the agency must discuss, and the extent to which it

must discuss them” and the CEQ regulations require an agency to

“discuss only alternatives that are feasible, or (much the same

thing) reasonable.” Id. (internal quotation marks omitted). 

Courts should “uphold [the agency’s] discussion of alternatives

so long as the alternatives are reasonable and the agency

discusses them in reasonable detail.” Id. at 196. The “agenc[y]

must look hard at the factors relevant to the definition of

purpose” and when asked to approve a specific plan, “the agency
- 23 -

should take into account the needs and goals of the parties

involved in the application.” Id. Busey further explained that

“[a]n agency cannot redefine the goals of the proposal that

arouses the call for action; it must evaluate alternative ways of

achieving its goals, shaped by the application at issue and by

the function that the agency plays in the decisional process.” 

Id. at 199. “The goals of an action delimit the universe of the

action’s reasonable alternatives.” Id. at 195. The CEQ

regulations require that the “reasonable alternatives” in an EIS

must include the alternative of taking no action. 40 C.F.R.

§ 1502.14. 

In Hammond v. Norton, 370 F. Supp. 2d 226 (D.D.C. 2005), the

Bureau of Land Management approved the construction of a

petroleum pipeline. There, the FEIS discussed the no action

alternative to building the pipeline briefly, stating that there

was a need for additional petroleum products, identifying the

annual deficits in petroleum if the pipeline were not built and

concluding that the purpose and need of the application would not

be met if the no action alternative were selected. Id. at 241-

42. The court found that “this discussion, while brief, lays out

the costs and benefits of the no action alternative with enough

specificity to allow meaningful comparison with other

alternatives. No more is required.” Id. at 242.
- 24 -

In this case, the NPS discussed the purpose of the action as

“deciding whether to issue the applicant the permits it needs to

construct a double-circuit 500-kV transmission line across three

units of the national park system.” FEIS at i (AR 47834). In

addition, the NPS explained that the need to replace the current

B-K line with the new S-R Line arose from “grid reliability

criteria violations” identified by PJM and was based on the

approvals of Pennsylvania Public Utility Commission and New

Jersey Board of Public Utilities. Id. at iv-v (AR 47837-38). 

NPS identified the no action alternative as denying the utilities

companies’ application to build the S-R Line, id. at v (AR

47838). The proposal that “arouse[d] the call to action” was the

utilities companies’ request for a special use permit and

expanded right-of-way to replace the current transmission line

with the larger S-R Line. The FEIS states that the application

was “driven by a need for transmission capacity.” Id. at 71 (AR

47932). Further, NPS specifically considered, among other

alternatives, the use of “distributed energy generation sites and

localized renewable energy[,]” and decided that this alternative

did “not meet the purpose and need for federal action or that of

the applicant.” Id. 

Here, NPS followed NEPA’s requirements by considering the

range of alternatives flowing from the proposal’s purpose,

including consideration of the application’s method of achieving
- 25 -

the goals and alternative methods. In particular, the no action

alternative is considered and dismissed in the FEIS and ROD. See

FEIS at 35 (AR 47896); ROD at 15-16, 18 (AR 116601-02, 116604). 

The agency decided that the alternatives would not meet the

applicants’ goals and that it was likely that the applicants

would attempt to unilaterally replace the B-K Line within the

current right-of-way if the NPS denied the application. Even if

plaintiffs disagree with NPS’ analysis, the plaintiffs have not

shown that NPS violated NEPA by failing to review alternatives

which were raised, discussed and rationally rejected in the FEIS.

D. Scope of environmental impacts 

The plaintiffs also argue that the agency did not take a

“hard look” at the full scope of the project’s environmental

impacts. Pls.’ Mem. at 44-45. NPS recognized that the utilities

companies could determine the route of the S-R Line outside of

the boundaries of the Parks. Thus, NPS identified Visual Split

Location (“VSL”) points which refer to “[t]he geographical point

outside the parks at which it becomes physically possible for the

applicant to route the line as it sees fit.” FEIS at 33 (AR

47894). “The determination of the VSLs is important because

while NPS can require the applicant to follow a specific route

inside the VSLs, the NPS cannot require the applicant to follow a

certain route beyond these points.” Id. at 34 (AR 47895). 

Therefore, NPS limited its review to the area between the VSLs
- 26 -

for each alternative. Id. at 33-34 (AR 47894-95). Plaintiffs

argue that NPS did not consider the impact of construction of the

S-R Line on the viewshed of another national park unit: Steamtown

National Historic Site in Pennsylvania and that “the agency’s

narrowly delimited review failed to consider the full scope of

harm that construction of the length of the S-R Line might

inflict on resources and values within the Delaware Water Gap[.]” 

Pls.’ Mem. at 44-45. 

An agency’s decision about the appropriate scope of the FEIS

is entitled to deference. See Kleppe v. Sierra Club, 427 U.S.

390, 414 (1976) (finding that the “determination of the extent

and effect of these [cumulative environmental impacts], and

particularly identification of the geographic area within which

they may occur, is a task assigned to the special competency of

the appropriate agencies”). As is stated above, an agency’s NEPA

review is limited to major Federal actions which “includ[e]

actions with effects that may be major and which are potentially

subject to Federal control and responsibility.” 40 C.F.R.

1508.18. “‘Effects’ is defined to ‘include: (a) Direct effects,

which are caused by the action and occur at the same time and

place,’ and ‘(b) Indirect effects, which are caused by the action

and are later in time or farther removed in distance, but are

still reasonably foreseeable.’” Dep’t of Transp. v. Public

Citizen, 541 U.S. 752, 764 (2004) (quoting 40 C.F.R. 1508.8). 
- 27 -

“NEPA requires ‘a reasonably close causal relationship’

between the environmental effect and the alleged cause.” Id. at

767 (quoting Metro. Edison Co. v. People Against Nuclear Energy,

460 U.S. 766, 774 (1983)). A reasonably close causal

relationship is similar to the requirement of proximate causation

in tort law. Id. (citing Metro. Edison Co., 460 U.S. at 774). 

To determine whether an agency must consider a particular effect,

courts must “look to the underlying policies or legislative

intent in order to draw a manageable line between those causal

changes that may make an actor responsible for an effect and

those that do not.” Metro. Edison Co., 460 U.S. at 774 n.7; see

also Dep’t of Transp., 541 U.S. at 768.

 The plaintiffs rely on Sierra Club v. Mainella, 459 F. Supp.

2d 76 (D.D.C. 2006). In that case, the court considered the

impact of directional drilling on land outside of a national

preserve to extract oil and gas from beneath the preserve.

Mainella, 459 F. Supp. 2d at 79. Mainella found that the NPS’

decision to allow directional drilling operations under the

preserve violated NEPA because the NPS failed to evaluate the

environmental effects from the surface activities of the

directional drilling that occurred outside of the preserve. Id.

at 105-06. Mainella reasoned that

it makes sense for NPS to assess the impacts from

surface activities because there is a reasonably close

causal relationship between such impacts and NPS’s

decision to grant an operator access to oil and gas
- 28 -

beneath the Preserve pursuant to an exemption from the

9B regulations. The surface drilling activities are

functionally inseparable from the downhole drilling

activities, which may not take place until NPS grants

the operator access through the Preserve, either

pursuant to a 9B plan of operations or by an exemption

from that requirement under section 9.32(e).

Id. at 105. Therefore, “NEPA requires NPS to evaluate impacts on

the Preserve from adjacent surface drilling activities[.]” Id.

at 105-06. 

The plaintiffs assert that Mainella requires the agency to

look beyond the Parks’ boundaries to assess other indirect

effects of the S-R Line based on the “‘reasonably close causal

relationship’ between the agency’s grant of right-of-way and

special use permits and the siting of the S-R Line on either side

of the Park.” Pls.’ Reply at 38. Here, the challenged agency

action was not NPS’ approval of the entire S-R Line. Instead,

NPS decided to grant the applicants an extended right-of-way and

special use permits to construct the S-R Line through the Parks. 

ROD at 2 (AR 116588). Thus, the environmental consequences of

the entire S-R Line were not at issue before the agency in

creating the EIS. Instead, the agency’s review was limited to

the portion of the S-R Line through the Parks and any

environmental effects caused by the construction in the Parks. 

To satisfy NPS’ duty to consider the environmental effects of the

S-R Line construction on areas outside of the Parks, NPS

rationally used the VSLs to limit the area of study to the area
- 29 -

where NPS controlled the utilities companies’ decision to

construct the S-R Line along a particular route. 

However, NPS had an obligation to assess any environmental

effects that had a reasonably close causal relationship to the

agency action allowing construction through the Parks. This

situation is dissimilar from the circumstances in Mainella

because the plaintiffs have not shown how construction of the S-R

Line outside of the Parks is functionally inseparable from any

activities inside of the Parks that NPS must regulate. If the

plaintiffs’ arguments are limited to the construction of the S-R

Line immediately outside of the Parks, the plaintiffs have not

explained why the agency’s use of VSL points was insufficient to

satisfy NEPA’s requirements for assessing environmental impacts

outside of the Parks. The plaintiffs do not identify any

environmental effects arising from the S-R Line’s construction

similar to the directional drilling that occurred in Mainella. 

The plaintiffs argue that NEPA required NPS to assess the

environmental impacts to the Steamtown National Historical Site. 

However, the plaintiffs have not shown how any environmental

effects to Steamtown have a reasonably close causal relationship

to the decision to allow construction within the Parks. To

trigger NEPA’s requirement to assess areas beyond the boundaries

of the Parks, the plaintiffs must do more than show that the S-R

Line as a whole would have environmental effects on another area
- 30 -

of federal land. Instead, the plaintiffs must show why the

agency action in this case, the decision to allow the S-R Line to

be built through the Parks, caused the environmental effects of

the S-R Line’s construction elsewhere. Whether the environmental

effects were on federal lands or non-federal lands, the issue is

whether the environmental effects were caused by the agency’s

action. 

Here, the plaintiffs simply assert that NPS knew what the

entire route of the S-R Line would be and that this knowledge

required NPS to assess the indirect effects of the S-R Line to

locations outside the Parks. See Pls.’ Reply at 37-38. However,

the plaintiffs have not identified the reasonably close causal

relationship between the environmental effects that they have

identified, such as impacts to the viewshed of Steamtown, and the

decision to grant the permits for the expanded right-of-way and

construction in the Parks. Thus, the plaintiffs have not shown

that the scope of NPS’ analysis in the FEIS was arbitrary and

capricious. Because the plaintiffs have not shown that the NPS’

actions violated NEPA, the plaintiffs’ motion for summary

judgment on the NEPA claims will be denied and judgment will be

entered for the defendants on the NEPA claims.

II. NPS ORGANIC ACT

The NPS Organic Act was implemented to “promote and regulate

the use of the Federal areas known as national parks, . . . which
- 31 -

purpose is to conserve the scenery and the natural and historic

objects and the wild life therein . . . by such means as will

leave them unimpaired for the enjoyment of future generations.” 

16 U.S.C. § 1. The D.C. Circuit has recognized that “[b]ecause

the Organic Act is silent as to the specifics of park management,

the Secretary has especially broad discretion on how to implement

his statutory mandate.” Davis v. Latschar, 202 F.3d 359, 365

(D.C. Cir. 2000). However, the NPS Organic Act “prohibits uses

which impair park resources and values.” Greater Yellowstone

Coal. v. Kempthorne, 577 F. Supp. 2d 183, 194 (D.D.C. 2008). “An

impairment is an impact that, in the professional judgment of the

responsible NPS manager, would harm the integrity of park

resources and values, including the opportunities that otherwise

would be present for the enjoyment of those resources or values.” 

Mainella, 459 F. Supp. 2d at 99 (internal quotation marks

omitted); accord, NPS Management Policies § 1.4.5. In reviewing

an agency’s action under the APA, the court must determine

whether the agency “‘articulate[d] a satisfactory explanation for

its action including a rational connection between the facts

found and the choice made.’” Mainella, 459 F. Supp. 2d at 90

(alteration in original) (quoting Alpharma, Inc. v. Leavitt, 460

F.3d 1, 6 (D.C. Cir. 2006)). This standard requires NPS to

provide a “specific and detailed explanation as to how it arrived

at [its] conclusion[.]” Bluewater Network v. Salazar, 721 F.
- 32 -

Supp. 2d 7, 30 (D.D.C. 2010). In particular, “[m]erely

describing an impact and stating a conclusion of nonimpairment is

insufficient, for this merely sets forth ‘the facts found’ and

‘the choice made,’ without revealing the ‘rational connection’ --

the agency’s rationale for finding that the impact described is

not an impairment.” Mainella, 459 F. Supp. 2d at 100. “The

agency’s decisions are entitled to a ‘presumption of regularity,’

and although ‘inquiry into the facts is to be searching and

careful, the ultimate standard of review is a narrow one.’” Id.

(citation omitted) (quoting Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)).

In Mainella, NPS’ description of the environmental

consequences to park resources from directional drilling outside

of the national preserve used undefined conclusory labels such as

“negligible,” “minor,” “moderate,” and “major” to describe the

adverse impacts from the drilling with “little or no explanation

of how NPS reached them.” Id. 

As NPS notes in each decision, “[w]hether an impact

meets this [impairment] definition depends on the

particular resources and values that would be affected;

the severity, duration, and timing of the impact; the

direct and indirect effects of the impact; and the

cumulative effects of the impact in question and other

impacts.” But it is just that assessment that is

lacking here. Any reasoned explanation must set forth

which of those factors were significant in leading NPS

to conclude that an impact is not an impairment -- or

that a group of impacts collectively is not an

impairment.
- 33 -

Id. (alterations in original) (citations omitted). Similarly,

in Bluewater, NPS failed to identify a “logical link” between the

description of the consequences of PWC emissions on water quality

and NPS’ non-impairment decision. Bluewater, 721 F. Supp. 2d at

30. In particular, NPS provided “little or no basis for

understanding why an identified impact fails to rise to the level

of an impairment.” Id. 

The plaintiffs argue that NPS’ decision to grant the special

use permits and expanded right of way violated the NPS Organic

Act because NPS did not articulate the rational connection

between the identified adverse environmental impacts arising from

building the S-R line and the non-impairment determination. 

Pls.’ Mem. at 28. In particular, the plaintiffs argue that NPS’

Non-Impairment Determination (“NID”) shows that NPS’ decision 8

was arbitrary and capricious because NPS failed to 1) explain why

adverse impacts did not result in impairment, 2) connect the

impairment threshold to any objective standards, and 3) explain

the inconsistences between restoration projections in the FEIS

and the ROD. Id. at 28-33.

The plaintiffs cite the NID’s rationale regarding impairment

to the visual resources and rivers in the affected areas. Pls.’

 The parties agree that the NID included in the 8

Administrative Record is not the final version. Pls.’ Mem. at 7

n.6; Intervenor Defs.’ Mem. at 16 n.10; Federal Defs.’ Mem. at 7

n.7. The final NID was included as an attachment to the federal

defendants’ motion for summary judgment.
- 34 -

Mem. at 28-30. The NID’s section on visual resources

acknowledges significant environmental impacts arising from the

S-R Line project. The NID states that “[t]he selected

alternative will . . . result in unavoidable adverse impacts

because the larger transmission line structure will remain a

visible intrusion that degrades the existing scenic quality of

the area that it traverses.” Federal Defs.’ Mem., Ex. A, NID at

12. However, the NID explains that the S-R Line will be built

along the route of the existing transmission line and will

include measures to reduce the impact to the visual resources. 

Id. In particular, the NID states that the non-impairment

decision is based on the mitigating effects of placing tower

structures at the maximum feasible distance from roadway and

trail crossings, using non-reflective neutral colored painting,

using monopoles to replace the current lattice towers,

revegetating the disturbed areas, reducing the width of the

permanent cleared right-of-way, and “allowing areas not needed to

maintain the line to succeed to forest inside the [right-ofway.]” Id. Unlike in Mainella and Bluewater, the NID in this

case does not simply identify the environmental impacts and

assert a non-impairment decision based on a conclusory label. 

Instead, NPS provided specific reasons why the S-R Line project

would not impair the visual resources of the Parks. Although NPS

could have included more detail assessing “the severity,
- 35 -

duration, and timing of the impact” to visual resources, the

discussion in this case sets forth a rational explanation for the

agency’s actions. Although the plaintiffs may disagree with the

agency’s conclusion regarding non-impairment, NPS has set forth

“a rational connection between the facts found and the choice

made” that the adverse environmental impacts on visual resources

will not impair the Parks resources.

The plaintiffs also cite the NID’s discussion of the adverse

consequences to the Middle Delaware River. The NID states that

“[a]dverse impacts to visual qualities of the river will extend

beyond the river itself” and “[t]he presence of taller towers,

thicker and more numerous lines, and bird diverters will be seen

not only as boaters pass below the wires, but as they approach

from both upstream and downstream directions.” Id. at 13. 

However, the NID refers to the explanation discussed above

concerning visual resources as a partial basis for the nonimpairment decision regarding the river resources of the Parks. 

Id. In addition, the NID refers to the explanations in the

historic structures and archaeology sections of the NID. Id. 

Those sections describe specific mitigation measures to limit the

adverse impacts to the resources in the Parks such as avoiding

any archeological resources, halting construction where unknown

resources are discovered and placing trees and vegetation between

the historic resources and the transmission line. Id. at 9-10. 
- 36 -

The NID states that “[s]cientific resources, including water

quality, also will not be impaired because construction or

disturbance will not occur in the river nor within a 100-foot

buffer from the river’s edge.” Id. at 13. Overall, the NID

states that the line will cross the river at only one location

and that the access roads for the S-R Line construction will not

be visible from the river. Id. Thus, unlike in Bluewater and

Mainella, NPS has asserted a rational basis for why the adverse

impacts identified in the NID do not rise to the level of

impairment and provided a logical link between the description of

the impact and the non-impairment decision. 

The plaintiffs further argue that NPS “failed to connect the

impairment threshold to ‘any objective standards that have been

announced or evaluated.’” Pls.’ Mem. at 28 (quoting Bluewater,

721 F. Supp. 2d at 33). Both Bluewater and Mainella support the

proposition that general descriptions of impacts or “unbounded

terms” that provide no objective standard for comparison are

insufficient to satisfy the requirements of the NPS Organic Act

under APA review. See Bluewater Network, 721 F. Supp. 2d at 33;

Mainella, 459 F. Supp. 2d at 101 (“An unbounded term cannot

suffice to support an agency’s decision because it provides no

objective standard for determining what kind of differential

makes one impact more or less significant than another.” (citing

Tripoli Rocketry Ass’n, Inc. v. Bureau of Alcohol, Tobacco,
- 37 -

Firearms, & Explosives, 437 F.3d 75, 81 (D.C. Cir. 2006))). 

Specifically, the plaintiffs challenge NPS’ analysis in the

geological resources section that the project’s adverse impacts

will not “‘substantially change the scenic landscapes’” in the

parks. Pls.’ Mem. at 31 (quoting NID at 4). However, NPS

explained that the basis for that conclusion was that the adverse

impacts to geological resources “will occur entirely within the

[right-of-way] corridor and will be limited to specific locations

where towers will be installed.” NID at 4. Further, the NID

discussed the low probability of boreholes and the shallow nature

of the drilling. Id. at 3-4. Although the NID could have

provided more details regarding the geological consequences, the

NID asserted reasons for the conclusion and objective statements

about the extent of damage to the geological resources.

The plaintiffs also challenge the NID’s discussion of

archeological impacts. That section states that “‘known

archeological sites will be avoided for the most part or the

effects will be limited to just a portion of the site[.]’” Pls.’

Mem. at 31 (quoting NID at 10). However, the archeological

resources portion of the FEIS states that a total of 25

archeological sites were identified along the alignment for the

alternative that was selected. FEIS at 221 (AR 48082). Then,

the NID specifies that two archeological sites could be affected

and discusses specific mitigation measures for project work near
- 38 -

archeological resources in the Parks including “avoid[ing] or

minimiz[ing] ground-disturbing activities to the most significant

portions of the site.” NID at 9. NPS also referred to the

intended mitigation measures as described in Appendix F of the

FEIS. Id. NPS has provided a sufficient rationale as the basis

for the non-impairment determination because the non-impairment

determination is not built on undefined and conclusory terms as

happened in Bluewater and Mainella.

Plaintiffs contend that the NID is inconsistent with the

FEIS with respect to how long the disturbed areas of the Parks

would take to return to their original conditions. In

particular, the plaintiffs assert that the NID states that

disturbed areas will “‘succeed to forest over time[,]’” but the

FEIS states that these areas, including mature forests and

wetlands, may not return to the previous condition. Pls.’ Mem.

at 31-32 (quoting NID at 6-9). However, the NID is consistent

with the FEIS because both documents reflect that certain

disturbed areas would not be able to recover fully after

construction. Specifically, the NID concedes in each section

cited by the plaintiffs that cleared areas within the right-ofway will result in permanent losses to vegetation, but that areas

outside of the right-of-way and areas within the right-of-way

that are not required for the operation of the S-R Line (such as

the access roads and tower foundations) will be “allowed to
- 39 -

succeed to forested area over time.” See NID at 6. The NID

states that the cleared areas in this project will be allowed to

recover, but the NID does not contradict the FEIS because the NID

does not claim that any mature forest will be restored to its

original state within the 15-year period that the FEIS analyzed. 

See NID at 6; FEIS at 411 (AR 48272). Further, the NID states

that compensatory mitigation will restore impacted wetlands at a

minimum acreage of 1 to 1 and that the project does not entail

the conversion of wetland to non-wetland. NID at 5. Thus, NPS’

non-impairment decision will be upheld because the plaintiffs

have not shown that NPS acted arbitrarily and capriciously in

concluding that the S-R Line project will not result in

impairment of the Parks’ resources and values.

Plaintiffs further argue that NPS did not provide a reasoned

analysis for the approval of the special use permits and expanded

right of way for the S-R Line in light of the significant adverse

environmental impacts which would result from the construction. 

Pls.’ Mem. at 33-37. In particular, plaintiffs argue that the

ROD reflects that the agency based the decision to reject the no

action alternative on “speculation[] about potential litigation”

and that the agency was incorrect in its legal assessment. Id.

at 34.

An agency’s decision may be rationally based on legal advice

and analysis regarding contractual or easement matters. See
- 40 -

Daingerfield Island Protective Soc’y v. Babbitt, 823 F. Supp.

950, 956-57 (D.D.C. 1993). In Daingerfield, the district court

reviewed the NPS’ decision to approve an interchange design. Id.

at 953. The government had entered into a Land Exchange

Agreement that granted a developer an easement to build an

exchange that would have access to the George Washington Memorial

Parkway. Id. at 952. NPS assessed the potential interchange

designs and considered recommending that no interchange be built,

but NPS was advised by counsel that the Land Exchange Agreement

required that the interchange be built and that “the only choice

left to NPS was to approve the least intrusive interchange

possible, which it did, or to refuse to approve any interchange

at all, which would have violated the Exchange Agreement that it

had been informed was legally binding on the federal government.” 

Id. at 956. The plaintiffs challenged NPS’ decision arguing that

no interchange should have been built based on environmental

concerns. Id. The district court explained that “[w]here

several administrative solutions exist for a problem, courts will

uphold any one with a rational basis, so long as the balancing of

competing solutions is not an arbitrary one.” Id. Because the

administrative record in Daingerfield reflected that NPS had

evaluated the options and decided on the least intrusive design

alternative, the NPS’ decision was upheld and the district

court’s decision and rationale was affirmed by the D.C. Circuit. 
- 41 -

Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 446

(D.C. Cir. 1994). 

In this case, the feasibility of the no-action alternative

lies at the center of this dispute. The ROD explains that the no

action alternative was not feasible because the utilities

companies own a property interest in the existing right-of-way,

upon which they could build a new line within the current rightof-way without NPS approval. ROD at 18. The plaintiffs contest

the utilities companies’ rights under the easements and argue

that the utilities companies were required to gain NPS approval

even if they attempted to build the transmission line without an

expanded right-of-way. Specifically, the plaintiffs contend that

NPS has the authority to prohibit the utilities companies from

building the S-R Line within the existing right-of-way. The

plaintiffs state that the utilities companies may not use their

easement in a way that would create a “high risk of fire” caused

by insufficient clearance between the proposed S-R Line and the

trees around the right-of-way. Pls.’ Mem. at 34-35. This legal

dispute remains unresolved. 

9

 The essence of the dispute is whether the utilities 9

companies’ easements include the right to cut down and remove

trees outside of the right-of-way on either side of the easement. 

The plaintiffs argue that the utilities companies do not have the

right to remove trees outside of the right-of-way. Thus, the

utilities companies cannot safely construct the new S-R Line

within the existing right-of-way and NPS approval is required for

any attempt to build the S-R Line within the existing right-ofway. Pl.’s Reply at 22-23. If true, that conclusion would
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The question presented here is not whether the utilities

companies could have built the S-R Line within the current rightof-way without NPS approval. Instead, the narrow question

presented here is whether NPS made a rational decision that the

no action alternative was not feasible and that an alternative

option was preferred. Faced with “significant uncertainty” and a

“strong probability” that the outcome -- either the unilateral

building of the new transmission line within the intervenordefendants’ right-of-way or future litigation regarding the

easements and a potential takings claim -- would be “worse for

park resources than the selected alternative[,]” NPS decided that

the no action alternative was not feasible. ROD at 18. Much

like in Daingerfield, NPS recognized that the best alternative

for the environment was the no action alternative. However, NPS

considered in reaching its decision the legal analysis regarding

whether the utilities companies could build the S-R Line without

approval and the utilities companies’ statements that they

intended to build the line without NPS approval. Id.; see AR

undermine NPS’ decision to reject the no action alternative. 

However, the utilities companies counter that the easements

expressly release the utilities companies from any liability from

trimming or cutting down trees that interfere with the

transmission lines. Intervenor Defs.’ Mem. at 26-28. Thus, the

utilities companies argue that they can clear vegetation on

either side of the easement and avoid any risk of fire and can

safely build the S-R Line without NPS approval. Intervenor

Defs.’ Reply at 3-7. Further, the utilities companies state they

have removed trees near the transmission line as recently as

2010. Id. at 5 n.3 (citing AR 77470).
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28475-77; 77432-33. NPS decided that the “least intrusive”

option would be the best alternative. While plaintiffs argue

that the NPS’ authority over the utilities companies’ use of the

easements is uncontroversial, this property dispute paired with

the strong likelihood that the utilities companies would seek to

continue construction of the transmission line, provided a

rational basis for NPS to reject the no action alternative. The

plaintiffs have not shown that NPS’ decision was arbitrary and

capricious and the defendants are entitled to summary judgment on

the NPS Organic Act claim.

III. WILD AND SCENIC RIVERS ACT

The WSRA was implemented to protect and preserve the values

of designated rivers in the United States. See 16 U.S.C. § 1271. 

The WSRA states that each component of the wild and scenic rivers

system “shall be administered in such manner as to protect and

enhance the values which caused it to be included in said system

without . . . limiting other uses that do not substantially

interfere with public use and enjoyment of these values.” 16

U.S.C. § 1281(a). Additionally, the WSRA provides that

no department or agency of the United States shall

assist by loan, grant, license, or otherwise in the

construction of any water resources project that would

have a direct and adverse effect on the values for

which such river was established . . . . Nothing

contained in the foregoing sentence, however, shall

preclude licensing of, or assistance to, developments

below or above a wild, scenic or recreational river

area . . . which will not invade the area or

unreasonably diminish the scenic, recreational, and
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fish and wildlife values present in the area on the

date of designation of a river as a component of the

National Wild and Scenic Rivers System.

16 U.S.C. § 1278(a). The WSRA provides three classifications for

rivers in the system: scenic, recreational and wild. See 16

U.S.C. § 1273(b). The portion of the river which the S-R Line

will cross is designated as scenic. See Publication of

Classification Map for the Middle Delaware River, 45 Fed. Reg.

3396 (Jan. 17, 1980). 

The plaintiffs allege that NPS’ decision to grant the

permits and the expanded right-of-way was arbitrary and

capricious because the NPS did not give “primary emphasis” to

protecting the river, Compl. ¶ 102 (citing 16 U.S.C. § 1281(a)),

and because the project qualified as a water resources project

that would have a “direct and adverse effect on the values for

which such river was established,” Compl. ¶ 105 (quoting 16

U.S.C. § 1278(a). The plaintiffs argue that the record reflects

that the project violates the WSRA because construction would

substantially interfere with the public use and enjoyment of the

rivers. Pls.’ Mem. at 37-38. The defendants counter that,

although the NPS acknowledged that the S-R Line will have some

negative effects on the river’s scenic values, the S-R Line

creates no substantial interference because most of the river

view will remain unchanged and the NPS required measures to

mitigate the detrimental impacts to riparian areas. See
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Intervenor Defs.’ Mem. at 38; Federal Defs.’ Mem. at 23-24

(citing ROD at 13 (AR 116599)).

In general, an agency’s assessment about whether an action

substantially interferes with public use and enjoyment of the

river’s values is entitled to deference. See Rivers Unlimited v.

U.S. Dep’t of Transp., 533 F. Supp. 2d 1, 5 (D.D.C. 2008); Hells

Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1178 (9th

Cir. 2000). Furthermore, “the mere existence of some decline in

scenic value does not establish . . . substantial[]

interfere[nce.]” Hells Canyon Alliance, 227 F.3d at 1178. In

evaluating whether new construction or modifications would create

a substantial interference, an agency may consider the existing

structures and uses of a river, including those that pre-date the

river’s protection under the WSRA. See Rivers Unlimited, 533 F.

Supp. 2d at 5.

In this case, NPS acknowledged that “[t]he presence of the

taller towers, thicker and more numerous lines, and bird

diverters” will have an adverse impact upon visitors in the

Parks. ROD at 13 (AR 116599). The FEIS discusses the adverse

impacts resulting from the construction of the S-R Line in

further detail as well. See, e.g., FEIS at 695-96 (AR 48556-57)

(considering the potential detrimental impacts of new

construction on the river’s scenic value). However, the NPS

provided a reasonable basis for finding that the S-R Line will
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not violate the WSRA by substantially interfering with the visual

quality of the river. The S-R Line will cross the river at the

same place as the existing B-K Line does and the agency referred

to the visual resources section which cited the use of neutral

colored paints to reduce reflection and the use of monopoles

rather than lattice towers as factors underlying their decision. 

NID at 12-13. The NPS considered the extent to which the new

towers and access roads would be visible within the Appalachain

National Scenic Trail and the Delaware Water Gap National

Recreation Area, identified the potential negative effects of the

S-R Line and discussed measures to lessen its visual impact. Id.

at 12-13. The agency’s consideration of potentially adverse

consequences to public use and enjoyment of the river and its

identification of methods to mitigate and avoid such effects

demonstrate that its decision was not arbitrary and capricious. 

See Hells Canyon Alliance, 227 F.3d at 1178-79; Rivers Unlimited,

533 F. Supp. 2d at 5. The agency therefore rationally determined

that the S-R Line does not substantially interfere with the

visual quality of the river.

While the plaintiffs may disagree with NPS’ conclusion, they

have not carried their burden of showing that the agency’s

decision was arbitrary or capricious. Thus, the plaintiffs’

motion for summary judgment on the WSRA claims will be denied and
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the defendants’ cross-motion for summary judgment will be

granted.

CONCLUSION

The plaintiffs have not shown that NPS’ decisions in this

case were arbitrary and capricious. The defendants have shown

that the agency’s decision is rationally based on the

administrative record. NPS’ actions will be upheld under each

statute, the plaintiffs’ motion for summary judgment will be

denied and the defendants’ cross-motions for summary judgment

will be granted. An appropriate Order accompanies this

memorandum opinion.

SIGNED this 30 day of August, 2013. th

 /s/ 

RICHARD W. ROBERTS

Chief Judge