990 F.3d 818
4th Cir.2021Background
- Mountain Valley Pipeline (MVP) sought a Section 401 Clean Water Act certification from North Carolina to build the 75-mile Southgate Project extension, about 48 miles of which would cross NC waters and >200 streams/wetlands, affecting riparian buffers and Jordan Lake watershed protections.
- Construction would cause temporary and some permanent impacts (stream damming, sedimentation, wetland clearing, removal of riparian vegetation); FERC found most impacts temporary but some long-term forest/wetland losses.
- MVP applied for 401 certification; a Department hearing officer recommended either conditional certification (tying Southgate construction to completion/permitting of the Mainline Project) or denial, concluding a temporal alternative (delay) could better minimize impacts.
- The NC Department of Environmental Quality denied certification, citing the Southgate Projects dependence on the uncertain Mainline Project completion and that approving now would allow avoidable impacts to water quality and protected riparian buffers.
- The Fourth Circuit held the denial consistent with state regulations and the CWA but found the agencys written decision failed to adequately explain its divergence from the hearing officer and why it denied rather than issued a conditional certificate; the denial was vacated and remanded for further explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Regulatory compliance: Did the Department properly apply state 401 certification criteria (minimization/practical alternatives)? | The hearing officer found minimization satisfied; Dept therefore had to issue certification. | Dept reasonably concluded a practical temporal alternative (delay until Mainline is permitted) would better minimize impacts given dependency. | Dept's reasoning is consistent with state riparian/minimization rules; denial permissible. |
| Statutory authority: Did Dept exceed its CWA authority by considering project utility (invading FERCs role)? | Dept impermissibly weighed project viability/utility beyond water-quality scope. | Dept acted within CWA by analyzing practicable alternatives and protecting water quality; temporal alternatives are legitimate. | Court: Dept acted within CWA bounds. |
| Adequacy of explanation: Did the agency sufficiently explain its decision in the administrative record? | Dept failed to respond to MVPs assurances, cite specific standards, or reconcile the hearing officers findings. | Depts denial tracked minimization/riparian concerns and cited record uncertainties about Mainline permits. | Court: Explanation adequate on Mainline uncertainty and water impacts but inadequate for failing to address hearing officers contradictory findings and not explaining refusal of conditional certification; remand required. |
| Remedy choice: Should Dept have granted conditional certification (conditioned on Mainline permits) instead of denial? | Dept should have issued a conditional 401 certificate rather than outright deny. | Denial may be preferable because conditional language might be vague/unenforceable and Mainline permits have proven unreliable. | Court: Dept failed to explain why it chose denial over a conditional certificate; must justify choice on remand. |
Key Cases Cited
- Sierra Club v. State Water Control Bd., 898 F.3d 383 (4th Cir. 2018) (states retain CWA authority over water quality despite NGA preemption in other areas)
- Sierra Club v. U.S. Army Corps of Engrs, 909 F.3d 635 (4th Cir. 2018) (upholding limits on Corps authorization under Nationwide Permit 12 for similar pipeline activities)
- Appalachian Voices v. State Water Control Bd., 912 F.3d 746 (4th Cir. 2019) (procedural framework for judicial review of state 401 decisions)
- PUD No. 1 of Jefferson County v. Washington Dept of Ecology, 511 U.S. 700 (1994) (states may implement antidegradation policies under the CWA)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review requires reasoned explanation for agency choices)
- Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (review limited to administrative record)
- Dept of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (agency must explain decisions and choices between reasonable alternatives)