A Western Virginia District Court judge ruled last week that the Cardinal-Hickory Creek Transmission Line Project cannot be built across the Upper Mississippi River National Wildlife and Fish Refuge through right-of-way or land transfer.
Wildlife conservation organizations National Wildlife Refuge Association, Driftless Area Land Conservancy, Wisconsin Wildlife Federation, and Defenders of Wildlife filed a complaint against the proposed high-voltage transmission line project in February 2021, claiming that it would have significant negative environmental and wildlife impacts on protected conservation lands along its proposed path. The proposed CHC transmission line would be up to125 miles long with towers up to 20 stories high, and would run on a wide path from Dubuque County, Iowa through the Upper Mississippi Refuge, ending in Middleton, Wisconsin, according to court documents.
The lawsuit challenges two categories of federal agency actions related to the CHC transmission line that plaintiffs believe are unlawful under the Administrative Procedure Act: that the Environmental Impact Statement approved by defendant Rural Utilities Service, which is part of the Department of Agriculture, is inadequate under the National Environmental Policy Act and that the right-of-way granted by U.S. Fish and Wildlife Service does not meet compatible use requirements under the National Refuge Act. District Judge William M. Conley agreed on Friday, ruling that defendants fail to meet legal requirements for the EIS, compatibility determination and land transfer.
Judge Conley also accused the defendants of acting in bad faith. Fish and Wildlife approved Royal Utilities’ right-of-way easement in December 2019. However, in March 2021, Rural Utilities asked to amend the easement. Before Fish and Wildlife could issue a decision on the proposed amendment, Royal Utilities contacted the agency again, asking for an expedited land exchange instead of an amended right-of-way. Then, less than a month after Fish and Wildlife responded favorably to the land transfer, the agency withdrew its entire original compatibility determination, rescinding Royal Utilities’ right-of-way through the Upper Mississippi Refuge, court documents state.
“While intervenor-defendants assert they are acting in good faith, there is substantial, contrary evidence in this record. As noted, the Utilities did not ask to amend their right-of-way permit until after this litigation commenced…and Fish and Wildlife suddenly ‘discovered’ errors in the Compatibility Determination that warranted withdrawal, which defendants argue conveniently moots any pending challenges to a Refuge crossing, just a week before opening briefs on summary judgment were due in this case,” Judge Conley states in his decision. “Shortly before this, the Utilities suggested a land transfer, which they maintain was only because it would allow construction to begin faster…an option that Fish and Wildlife promptly indicated may be a good option.”
The Upper Mississippi Refuge was established in 1924 as a refuge and breeding place for migratory birds, as well as for other wildlife and plants. It covers more than 240,000 acres and comprises wooded islands, marshes and backwaters in Wisconsin, Iowa, Minnesota and Illinois, according to court documents.
The parties’ submissions for additional relief and proposed language for final judgment are due by January 24, 2022.
Plaintiffs are represented by Environmental Law & Policy Center, Defenders of Wildlife and National Wildlife Refuge Association.
Intervenor-defendants are represented by Perkins Coie LLP.
