Sierra Club v. U.S. Dep't of the Interior
899 F.3d 260
4th Cir.
2018

Background

  • The Atlantic Coast Pipeline (ACP) required federal approvals; FERC issued a certificate conditioned on receiving other federal approvals, including from FWS and NPS. Petitioners (Defenders of Wildlife, Sierra Club, Virginia Wilderness Committee) challenged those agency authorizations.
  • FWS issued a Biological Opinion and an Incidental Take Statement (ITS) authorizing incidental take of six non-plant listed species; petitioners challenged the ITS limits for five species (Clubshell, Rusty Patched Bumble Bee, Madison Cave Isopod, Indiana Bat, Northern Long-Eared Bat) as arbitrary and unenforceable.
  • Instead of numeric take caps, FWS used habitat-based surrogates (e.g., "small percent," "majority," acreage bands); petitioners argued FWS failed to show causal links, impracticability of numeric limits, and a clear enforcement trigger.
  • NPS issued a revocable right-of-way permit under the Blue Ridge Parkway Organic Act to allow ACP to drill beneath the Parkway; petitioners argued NPS lacked authority and failed to determine the permit’s consistency with Parkway and National Park System conservation purposes.
  • The Fourth Circuit held both agency decisions arbitrary and capricious: FWS’s ITS take limits for the five species were unenforceable habitat surrogates lacking required elements; NPS’s permit decision lacked a reasoned consistency analysis (and invoked an inapplicable statutory provision), so it was arbitrary and capricious.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Validity/enforceability of FWS ITS take limits ITS is arbitrary because it lacks numeric caps and FWS improperly used unenforceable habitat surrogates without causal link, practicability showing, or clear triggers FWS/ACP argue numeric limits not required; FWS used habitat surrogates and monitoring; some numeric estimates were impractical due to detection limits and survey gaps Vacated ITS: habitat surrogates failed regulatory requirements (no adequate causal link, inadequate showing numeric limits impractical, and no clear monitoring/enforcement triggers) for the five challenged species
Standard of review and timeliness Petitioners invoked APA/Natural Gas Act review and timely petitions; statute of limitations satisfied ACP urged borrowing short state limitations under NGA framework Claims timely; Court applied APA arbitrary-and-capricious standard; did not need to pick between APA or NGA for limitations because petitions were timely either way
NPS authority to grant pipeline right-of-way under Organic Act and MLA Permit exceeded or misapplied statutory authority and is inconsistent with Parkway purposes; MLA excludes National Park System and does not permit pipelines in parks NPS/ACP asserted §460a-8 authorizes revocable permits and rights-of-way; MLA governs pipelines on Federal lands generally and does not preclude NPS action NPS lacks Chevron-eligible, persuasive statutory interpretation in permit; MLA neither authorizes nor precludes park crossings; even assuming §460a-3 grants right-of-way power, NPS acted arbitrarily and capriciously by failing to explain consistency with Parkway and Park System purposes; permit vacated
Standing of Sierra Club & Virginia Wilderness Committee Organizations have associational standing via members who use Three Ridges Overlook and will be harmed by visual/scenic impacts NPS argued injury not fairly traceable to NPS because pipeline beneath the Parkway and corridor on non-NPS lands Organizations have associational standing: members show concrete recreational/aesthetic injury fairly traceable to NPS permit and redressable by vacatur

Key Cases Cited

  • Bennett v. Spear, 520 U.S. 154 (explaining Biological Opinion/ITS as safe harbor and enforcement consequences)
  • Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (standard of deference and scope of judicial review under APA)
  • Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious/required reasoned explanation standard)
  • Laidlaw Environmental Services v. EPA, 528 U.S. 167 (environmental plaintiffs’ injury-in-fact by aesthetic/recreational harm)
  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing framework requirements)
  • Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (agency deference framework)
  • United States v. Mead Corp., 533 U.S. 218 (limits on Chevron deference; force-of-law requirement)
  • SEC v. Chenery Corp., 332 U.S. 194 (Chenery—courts judge agency action on grounds relied upon by agency)
  • Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257 (habitat surrogate must provide meaningful trigger to reinitiate consultation)
  • Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Service, 273 F.3d 1229 (causal link and enforceable triggers for surrogate limits)
  • Center for Biological Diversity v. U.S. Bureau of Land Management, 698 F.3d 1101 (ITS without numeric cap violates ESA preference for numeric limits)
  • Wild Fish Conservancy v. Salazar, 628 F.3d 513 (agency must set triggers that can be monitored)
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