20-2159
4th Cir.Feb 3, 2022Background
- The Mountain Valley Pipeline (304 miles, 42-inch) crosses >1,100 streams and will disturb ~6,951 acres; FERC issued certificates in 2017 and reinitiated ESA consultation leading to a 2020 Fish and Wildlife Service (FWS) Biological Opinion (BiOp) and Incidental Take Statement.
- Petitioners (environmental groups) challenged the 2020 BiOp, arguing FWS failed to analyze the environmental baseline and cumulative effects for two endangered fishes—the Roanoke logperch and the candy darter—and failed to account for climate change.
- The logperch and candy darter are habitat‑sensitive, sediment‑intolerant species with limited, genetically important populations in watersheds crossed by the Pipeline; the Project will affect multiple kilometers of their habitat and populations vital to recovery.
- FWS relied in part on population‑level projection models (2016 logperch model; 2018 candy darter model), and used a sediment‑concentration surrogate and monitoring plan in its Incidental Take Statement instead of numeric individual counts.
- The Fourth Circuit found FWS’s action‑area, environmental‑baseline, cumulative‑effects, and climate‑change analyses for the two fishes insufficient; it vacated the 2020 BiOp and Incidental Take Statement and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of environmental baseline in the action area | FWS used range‑level summaries and models instead of assessing local, ongoing stressors (mining, logging, agriculture, loss of woody debris) within the action area | FWS relied on population models and range/watershed analyses to reflect aggregate past and ongoing stressors; listing every local activity not required | Court: Baseline analysis arbitrary and capricious; models and range‑level statements do not substitute for an action‑area analysis; vacated and remanded |
| Cumulative effects and climate change | FWS’s cumulative‑effects section is cursory and fails to evaluate reasonably certain non‑federal future actions; climate change was essentially ignored | FWS and Mountain Valley contend models implicitly captured cumulative impacts and climate effects; limited discussion was sufficient | Court: Cumulative‑effects analysis inadequate and climate‑change consideration was insufficient or impermissibly post hoc; remand required |
| Incorporation of baseline/cumulative effects into jeopardy determination (step 3) | Jeopardy analysis improperly treated the agency action in isolation and failed to add action effects to the baseline and cumulative effects | FWS maintained the action would not appreciably reduce survival or recovery and that an action can be approved even if baseline conditions are poor | Court: Jeopardy conclusions arbitrary because premised on flawed baseline/cumulative analyses; must reassess jeopardy on remand |
| Other challenges (action‑area scope; Blackwater exclusion; take surrogate/monitoring) | Action area too narrow; Blackwater River wrongly excluded despite suitable habitat; take thresholds vague and monitoring inadequate | FWS conservatively expanded downstream reach (200m upstream/800m downstream) and relied on published studies; Blackwater exclusion justified by negative surveys/eDNA and seasonality; surrogate based on project‑related sediment with monitoring and agency oversight to attribute exceedances | Court: These subsidiary challenges lack merit—action‑area scope and Blackwater exclusion reasonable; surrogate and monitoring adequate as presented |
Key Cases Cited
- Tennessee Valley Authority v. Hill, 437 U.S. 153 (affirming ESA’s primary goal to halt species extinction)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (standards for arbitrary and capricious review)
- Defenders of Wildlife v. U.S. Dep't of the Interior, 931 F.3d 339 (4th Cir.) (agency must seek out and consider relevant scientific data)
- Sierra Club v. U.S. Forest Serv., 897 F.3d 582 (4th Cir.) (NEPA/adoption of FERC EIS errors relevant to the Project)
- National Wildlife Fed'n v. National Marine Fisheries Serv., 524 F.3d 917 (9th Cir.) (need to analyze agency action in its environmental context to avoid incremental destruction)
- Pacific Coast Federation of Fishermen's Associations v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir.) (jeopardy analysis requires context assessment)
- Dow AgroSciences LLC v. National Marine Fisheries Serv., 707 F.3d 462 (4th Cir.) (courts review only agency's contemporaneous justifications)
- Center for Biological Diversity v. U.S. Fish & Wildlife Service, 807 F.3d 1031 (9th Cir.) (deference to technical judgments but baseline must meaningfully inform jeopardy analysis)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (deference and scope of judicial review of agency NEPA/administrative determinations)
- American Rivers v. Federal Energy Regulatory Commission, 895 F.3d 32 (D.C. Cir.) (BiOp must incorporate environmental baseline into jeopardy determination)