898 F.3d 383
4th Cir.2018Background
- Mountain Valley Pipeline (MVP) proposed a ~303-mile, 42-inch interstate natural gas pipeline crossing ~106 miles in Virginia, requiring 385 stream and 144 wetland crossings across steep, landslide-prone terrain.
- MVP obtained a FERC certificate (Oct. 2017) and sought Corps authorization under CWA §404 (NWP 12). Virginia DEQ/State Water Control Board reviewed Section 401 certification under the Clean Water Act.
- DEQ issued an initial April 2017 401 certification for Corps/NWP 12-covered crossings, then developed a 2017 Guidance Document to evaluate upland (non-jurisdictional) construction impacts and requested supplemental information from MVP.
- After extensive information exchanges, public comment, site-specific plan requirements, and added monitoring/mitigation conditions, DEQ and the Board issued a December 2017 Section 401 certification imposing additional conditions addressing upland impacts and monitoring.
- Environmental petitioners challenged the December 401 certification in this court, arguing DEQ’s reasonable-assurance determination was arbitrary and capricious and that DEQ failed to consider cumulative impacts of upland activities plus NWP 12-covered crossings.
- The Fourth Circuit considered standing, standard of review, and whether DEQ’s reliance on existing regulatory frameworks, monitoring, and adaptive enforcement sufficed as ‘‘reasonable assurance’’ under §401.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge state §401 certification | Petitioners: December 401 caused concrete injury to water/uses; vacatur would redress by enabling stricter conditions or denial | Respondents/MVP: Injury caused by FERC authorization; vacatur may not lead to ultimate relief so redressability lacking | Court: Petitioners have Article III standing; realistic possibility of redress exists (Townes framework) |
| Standard of review for state §401 action | Petitioners: review under arbitrary-and-capricious standard (APA) | Respondents: argue state-law/substantial-evidence standard might apply but concede outcome same | Court: applied arbitrary-and-capricious review and deferred to agency expertise |
| Whether DEQ lacked basis for finding "reasonable assurance" (antidegradation/Tier 2/3) | Petitioners: DEQ relied improperly on EPA/general permits and non-site-specific analyses; monitoring and future approvals insufficient | DEQ/MVP: relied on AS&S, VESC/VSM equivalence to Construction General Permit, site-specific AS&S, monitoring, adaptive enforcement, and FERC/Corps conditions | Court: DEQ's predictive, monitoring-based reasonable-assurance determination was not arbitrary or capricious; reliance on established programs and adaptive measures was reasonable |
| Whether DEQ improperly segmented review (separating NWP 12 impacts from upland impacts) | Petitioners: DEQ failed to consider combined/cumulative effects of upland activities plus stream/wetland crossings | Respondents: DEQ integrated prior NWP 12 analysis and intended April and December certificates to operate together; monitoring addresses cumulative risk | Court: Segmentation was not arbitrary; DEQ considered NWP 12 impacts in its supplemental review and relied on combined conditions and monitoring |
Key Cases Cited
- PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700 (1994) (states’ §401 authority and role in conditioning federal permits)
- Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) (deference to agencies on complex factual predictions)
- AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721 (4th Cir. 2009) (Clean Water Act §404 and Corps permitting context)
- Crutchfield v. County of Hanover, Va., 325 F.3d 211 (4th Cir. 2003) (nationwide permits and Corps verification)
- Townes v. Jarvis, 577 F.3d 543 (4th Cir. 2009) (standing/redressability framework where court relief is antecedent to agency action)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III injury-in-fact requirements)
- American Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997) (Section 401 conditions become binding on federal licenses)