One of the Dominion Energy transmission tower in James River/Cameron Adams

The U.S. Army Corps of Engineers and a Dominion Energy subsidiary were chastised by a unanimous appellate court for asking that a line of transmission towers in the James River be allowed to remain even though the Corps was found to have violated the National Environmental Policy Act by letting the nearly 300-foot-tall towers be put in place without first conducting an environmental impact study.

That the Corps and Dominion had promised to remove the towers had they lost the legal battle brought by the National Parks Conservation Association and the National Trust for Historic Preservation over the NEPA requirement wasn't lost on the U.S. Court of Appeals for the District of Columbia in its ruling Friday.

"Over the Conservation Groups’ protests that 'construction of the towers will render the project a fait accompli,' the (district) court denied the motion for injunctive relief, reasoning that '[s]hould it ultimately be determined that the Army Corps of Engineers unlawfully issued the permit for the project, the Court can order the towers removed,'" the three appellate judges pointed out in their ruling.

The six-page ruling was just the latest twist in the years-long battle over the transmission line proposed, and now built, by Virginia Electric and Power. The project, which the Obama administration had objected to, was enthusiastically supported by the Trump administration and former Interior Secretary Ryan Zinke. Former National Park Service Director Jon Jarvis in 2017 had said in a letter to the Army Corps of Engineers that the project, which would erect tranmission towers through the James River within sight of Historic Jamestowne and Colonial National Historical Park, would cause "severe and unacceptable damage to this historically important area and the irreplaceable and iconic resources within it."

Dominion has maintained that its Surry-Skiffes Creek-Whealton Transmission Line, which crosses the river between Surry and James City counties, was the best way to maintain a healthy power grid in the area. But conservation groups, including the National Trust for Historic Preservation, the National Parks Conservation Association, and Preservation Virginia, maintained that there were less-damaging solutions -- burying the lines under the river, for instance -- that wouldn't need to span the river and invade the historic setting.

Back in March the appellate court, holding that the Army Corps of Engineers should have prepared an environmental impact statement on the project, ordered the permit for the project to be withdrawn. Friday's ruling came on a petition from the Corps and Dominion that it reconsider that order.

Now the Corps and Dominion argue that taking down the towers pending an EIS would be too disruptive, a view the appellate court rejected.

"The Corps observes that when this court decided the case  (in March) it did not 'have before it the recent factual developments regarding completion of construction and the disruption that vacating the permit could cause.' That, of course, is because neither petitioner bothered to advise us that construction on the project had been completed and the transmission lines electrified the week before we issued our opinion," wrote the judges. "The Conservation Groups point out that Petitioners’ position regarding the appropriate remedy on appeal has changed during the course of this litigation. To defeat the Conservation Groups’ motions to enjoin construction of the towers, Petitioners assured the district court that an injunction was unnecessary because if the Conservation Groups succeeded on the merits—that is, if the court ruled that the Corps was required to prepare an EIS—the permit could be vacated and the towers correspondingly removed.

"... Had the Corps and Dominion said all along what they say now, either the district court or this court might have enjoined tower construction, in which case our consideration of 'disruptive consequences,' would focus not on shutting down and removing the towers, but rather on prohibiting their construction—a very different balance indeed," the opinion continued. "Moreover, having completed construction, Petitioners now attempt to use it to place an even heavier thumb on the scale, as they represent that they have invested $400 million in tower construction, as compared to the '$178.7 million cost asserted in the Corps’ [Environmental Assessment].'"

That said, the appellate court, however, stopped short of ordering the towers' removal, instead remanding the case to the district court to determine an appropriate remedy.

This "ruling is another positive step in our fight to preserve historic Jamestown and the irreplaceable legacy that it represents," said Theresa Pierno, president and CEO of the National Parks Conservation Association. "The court’s ruling makes clear that the Army Corps illegally approved Dominion Energy’s permit to build a massive transmission line across the James River that now degrades the historic character of Jamestown, the James River, and the surrounding national park landscape. For more than six years, NPCA and our partners have fought for Jamestown. As we celebrate this positive step today, we remain steadfast in our commitment to ensure this treasured place is protected for generations to come.”