Sierra Club v. U.S. Army Corps of Engineers
909 F.3d 635
| 4th Cir. | 2018

Background

  • Mountain Valley Pipeline (304-mile, 42-inch) seeks to construct crossings of 591 water bodies in VA/WV; discharges of fill require Corps authorization under CWA §404 and compliance with Nationwide Permit 12 (NWP 12).
  • West Virginia, after notice-and-comment, certified NWP 12 with special state conditions, including (A) individual 401 certification for pipelines ≥36" or crossing Section 10 rivers, and (C) a 72-hour limit for individual stream crossings (with some river exceptions).
  • WV later vacated/waived its earlier individual 401 certification for Mountain Valley on remand; Mountain Valley submitted pre-construction notifications for dozens of crossings and planned longer-duration "dry" open-cut crossings for four major rivers.
  • The Corps issued a December 22, 2017 Verification that the project met NWP 12, then suspended and later (July 3, 2018) reinstated the Verification while imposing a case-specific Special Condition 6 requiring the longer "dry" method and stating it applied "in lieu of" WV Special Condition C.
  • Petitioners challenged both the Verification and the Reinstatement. The court reviewed whether the Corps lawfully replaced a state-imposed Section 401 condition, whether WV could waive Special Condition A without notice-and-comment, and whether vacatur was required.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Corps had authority under CWA §401(d) to substitute its own case-specific special condition for a state-imposed condition (replace C with Corps Special Condition 6) Corps may not reject or replace state §401 conditions; WV condition C became mandatory part of NWP 12 and cannot be set aside Corps: its discretionary regulatory authority allows district engineers to add or modify activity-specific conditions under Corps regs (33 C.F.R. §§330.1/.4/.5) and it acted to further restrict NWP applicability Corps exceeded statutory authority; vacated Reinstatement — §401(d) mandates state conditions become conditions on federal permits and Corps cannot replace them
Whether Corps’ regulations permit substituting or revising state-imposed NWP conditions before a project obtains authorization Regulations require satisfaction of all NWP terms/conditions before authorization; Corps cannot trigger discretionary modification authority when condition unsatisfied Corps: its discrete modification authority allows imposing additional/revised conditions on authorizations; verification/authorization distinction supports its action Regulations read with §401 show Corps may add conditions only after authorization (i.e., after all NWP conditions, including state ones, are met); Corps misapplied regulations; vacated Reinstatement
Whether WV’s waiver of Special Condition A (individual 401 for ≥36" or Section 10 river crossings) without public notice-and-comment satisfied CWA §401(a)(1) State cannot waive a condition it imposed in certifying an NWP absent the notice-and-comment procedures §401(a)(1) requires; Corps erred by accepting waiver Corps argued certification language contemplates waiver and relied on WV letter as valid waiver WV’s purported waiver was invalid without following §401(a)(1) notice-and-comment; Verification and Reinstatement improperly treated Special Condition A as satisfied and thus were vacated
Remedy: whether to remand without vacatur or vacate the Verification and Reinstatement Petitioners: vacatur required because Corps exceeded statutory authority and state waiver was invalid Corps/Mountain Valley: remand without vacatur appropriate under Allied-Signal balancing of equities Court vacated both the Verification and Reinstatement in full; remand without vacatur denied because agency action exceeded statutory authority and unlikely to be upheld on remand

Key Cases Cited

  • Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (two-step framework for agency interpretation of statutes)
  • United States v. Mead Corp., 533 U.S. 218 (2001) (limits on Chevron deference; Mead/Skidmore analysis)
  • Crutchfield v. County of Hanover, 325 F.3d 211 (4th Cir. 2003) (distinguishing individual vs. general permits under Corps regulations)
  • Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260 (4th Cir. 2018) (agency action lacking rulemaking not entitled to Chevron; indicia of legislative-type determination)
  • High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630 (9th Cir. 2004) (permit decisions without precedential force not legislative)
  • U.S. Dep’t of Interior v. F.E.R.C., 952 F.2d 538 (D.C. Cir. 1992) (federal agency may not alter or reject state §401 conditions)
  • Am. Rivers, Inc. v. F.E.R.C., 129 F.3d 99 (2d Cir. 1997) (Section 401 certification conditions are mandatory on federal permits)
  • Snoqualmie Indian Tribe v. F.E.R.C., 545 F.3d 1207 (9th Cir. 2008) (federal agency may impose non-conflicting additional conditions but cannot weaken state §401 requirements)
  • United States v. Smithfield Foods, Inc., 191 F.3d 516 (4th Cir. 1999) (state modifications to permits must follow required procedures; importance of notice-and-comment)
  • Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (factors for remand without vacatur)
  • S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370 (2006) (state §401 certification’s central role in federal-state permitting scheme)
  • Christensen v. Harris County, 529 U.S. 576 (2000) (limits on deference where agency creates de facto rule without notice-and-comment)
  • F.C.C. v. NextWave Personal Communications Inc., 537 U.S. 293 (2003) (courts must set aside agency action not in accordance with law under APA)
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