931 F.3d 339
4th Cir.2019Background
- The Atlantic Coast Pipeline (ACP) is a 600-mile natural gas pipeline whose construction will clear forest, disturb 11,776 acres, and cross streams and karst terrain across WV, VA, and NC. FERC coordinated federal authorizations; FWS conducted ESA formal consultation.
- FWS issued a 2017 Biological Opinion (BiOp) and Incidental Take Statement (ITS); this court vacated the 2017 ITS as arbitrary for using vague habitat surrogates and failing to justify not using numeric take limits.
- FWS then reinitiated consultation and, within 19 days, issued a 2018 BiOp and ITS concluding ACP would not jeopardize several species (rusty patched bumble bee (RPBB), clubshell mussel, Indiana bat, Madison Cave isopod) and setting take limits (numeric for some, habitat surrogates for others).
- Petitioners challenged the 2018 BiOp/ITS: they argued the no-jeopardy determinations for the RPBB and clubshell were arbitrary and that ITS take-surrogates for the Indiana bat and Madison Cave isopod (MCI) were legally deficient.
- The Fourth Circuit reviewed under the APA arbitrary-and-capricious standard, focusing on whether FWS used the best available science, adequately explained changes in position, assessed species status and recovery, and provided lawful causal links for habitat-surrogate take limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS’s 2018 no‑jeopardy finding for the rusty patched bumble bee (RPBB) was lawful | RPBB: FWS relied on arbitrary nest‑density and queen‑production assumptions, ignored species’ precarious status, failed to analyze impacts to recovery, and contradicted its own prior evidence. | FWS relied on best available data, updated sighting records, and its RPBB guidance/model to estimate high‑potential zones and impacts. | Vacated: FWS’s RPBB no‑jeopardy finding arbitrary—estimates unsupported, contradicted by evidence, and failed to assess recovery/status adequately. |
| Whether FWS’s 2018 no‑jeopardy finding for the clubshell was lawful | Clubshell: FWS relied on outdated survey/recovery data, failed to reconcile 2018 salvage results with older monitoring, and improperly equated nonreproductive status with lack of jeopardy. | FWS relied on recovery criteria and past assessments; salvage numbers weren’t comparable to long‑term monitoring. | Vacated: FWS’s clubshell no‑jeopardy finding arbitrary—relied on stale/incomplete data and misapplied recovery criteria. |
| Whether the 2018 ITS habitat surrogate for Indiana bat (Ibat) satisfied ITS regulatory requirements | Ibat: FWS dropped previously recognized indirect effects from clearing unoccupied suitable summer habitat, failed to explain its change in position, and therefore lacks a rational causal link and clear exceedance standard for the surrogate. | FWS argued negative surveys permit presumption of absence in unoccupied suitable habitat and that other field offices use similar practice; it also provided a separate numeric limit (2 bats). | Vacated (as to surrogate): The habitat surrogate is arbitrary—FWS did not justify abandoning prior findings about indirect effects or establish required causal link/monitoring standard for the surrogate. |
| Whether the 2018 ITS habitat surrogate for the Madison Cave isopod (MCI) satisfied ITS regulatory requirements | MCI: FWS limited the surrogate to 11.2 acres (directly displaced cave area) while acknowledging effects could extend across 1,974 acres and offering no explanation for excluding the remainder; AMMs and groundwater depth do not plausibly eliminate off‑site impacts. | FWS said only the 11.2 acres are measurable/monitorable and that AMMs and depth to groundwater mitigate impacts beyond that zone. | Vacated (as to surrogate): The MCI surrogate is arbitrary—FWS failed to show causal link between surrogate bounds and anticipated take and ignored evidence (sinkholes/karst connectivity) of broader impacts. |
Key Cases Cited
- Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260 (4th Cir. 2018) (prior opinion vacating the 2017 ITS and explaining habitat‑surrogate requirements)
- Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) (APA arbitrary‑and‑capricious standard and review scope)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983) (agency action arbitrary when it fails to consider relevant factors or offers implausible explanations)
- Defenders of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374 (4th Cir. 2014) (arbitrary‑and‑capricious review in ESA context)
- Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 707 F.3d 462 (4th Cir. 2013) (agency reliance on outdated/inaccurate data requires explanation)
- Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (jeopardy analysis must consider tipping species into likely extinction and may require recovery analysis)
- Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (presumption of validity for agency action but courts will vacate for clear error of judgment)