912 F.3d 746
4th Cir.2019Background
- Atlantic Coast Pipeline (ACP) is a ~604-mile interstate natural gas pipeline; ~307 miles in Virginia with 890 water crossings and numerous upland impacts.
- Atlantic obtained a FERC certificate and Corps Section 404 authorization (Nationwide Permit 12); Virginia separately reviewed water-quality impacts under CWA §401.
- Virginia DEQ/State Water Control Board issued two distinct §401 certifications: a Wetlands and Streams Certification (Corps/NWP12) and a separate Upland Certification addressing terrestrial activities and certain surface-water withdrawals. The Board conditioned the Upland Certification on submission/approval of karst, erosion/sediment, and stormwater plans and other measures.
- Environmental groups petitioned for review, arguing the Upland Certification was arbitrary and capricious because (1) reopening the public comment on the Wetlands/Streams certification undermined reasonable assurance, (2) the Board failed to analyze combined/cumulative watershed impacts, (3) the Board failed to perform an antidegradation review, and (4) the Board inadequately addressed karst geology risks.
- The Fourth Circuit held petitioners had standing and reviewed the Board’s decision under the APA’s arbitrary-and-capricious standard, denying the petitions and upholding the Upland Certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reopening comment period on Wetlands/Streams certification voided reasonable assurance for Upland Certification | Reopening undermined Board’s earlier reasonable-assurance finding and made Upland Certification invalid | Reopening applied only to Wetlands/Streams, not the Upland Certification; Wetlands/Streams certification was not revoked | Reopening did not render Upland Certification arbitrary and capricious |
| Whether Board had to perform a combined/cumulative effects analysis for upland activities within watersheds | Board must assess combined impacts across multiple construction areas and address Chesapeake Bay TMDL implications | Corps (NWP12) and FERC already analyzed cumulative effects for aquatic crossings; §401 need not duplicate other agencies’ analyses and states have discretion over §401 procedures | No combined-effects review was required; failure to perform one was not arbitrary and capricious |
| Whether a separate antidegradation review was required before issuing Upland Certification | Board had to conduct a standalone antidegradation analysis under CWA and state rules | AS&S program, VSM/VESC requirements, and other plans (and temporary nature of impacts) satisfied antidegradation concerns; separate review unnecessary | No separate antidegradation review was required; reliance on existing standards and temporary-impact findings was reasonable |
| Whether Board’s handling of karst geology risks was inadequate | Board failed to ensure protection of karst areas and groundwater from pipeline construction risks | Upland Certification included detailed karst-specific conditions (survey addendum, mitigation/monitoring plan, contingency planning, potable-water surveys, $5M liability) providing reasonable assurance | Board’s reliance on the imposed karst conditions was not arbitrary and capricious; karst handling was adequate |
Key Cases Cited
- AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721 (4th Cir. 2009) (discusses interplay of CWA §404 and state certification review)
- Delaware Riverkeeper Network v. Secretary Pa. Dep’t of Envtl. Prot., 833 F.3d 360 (3d Cir. 2016) (states’ §401 role in pipeline reviews under NGA)
- Sierra Club v. State Water Control Bd., 898 F.3d 383 (4th Cir. 2018) (Fourth Circuit §401 review; standing and deference to state expertise)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard requires rational connection between facts and agency action)
- PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700 (1994) (§401 certification must include reasonable assurance of compliance with water-quality standards)
- Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (review standards under arbitrary-and-capricious test)
- Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989 (9th Cir. 2004) (NEPA cumulative-impact discussion; distinguished by court here)
- Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002) (TMDLs are informational tools and do not create independent obligations)