981 F.3d 251
4th Cir.2020Background
- Petitioners (Sierra Club et al.) sought stays of two Army Corps actions allowing Mountain Valley Pipeline (MVP) to use Nationwide Permit 12 (NWP 12) for discharge/fill activities in the Huntington (WV) and Norfolk (VA) Districts; the Huntington District issued a Verification and the Norfolk District issued a Reinstatement on September 25, 2020.
- NWP 12 is a general CWA authorization that avoids project-specific individual permits; use requires state Section 401 water quality certification or waiver, and states may add special conditions that become part of the NWP in that State.
- In 2017 West Virginia adopted Special Condition A requiring individual Section 401 certification for pipelines ≥36" or crossing certain Section 10 rivers; this condition became part of NWP 12 in WV and was central to prior litigation in which this Court vacated an earlier Verification.
- WVDEP later (April 24, 2019) amended Special Condition A to make individual certification discretionary (Secretary’s sole discretion); the WVDEP asked the Corps to incorporate that modification, and a Corps division engineer purported to do so in Jan. 2020; the Huntington Verification relied on that modification.
- The panel granted Petitioners’ motions to stay the Huntington Verification and Norfolk Reinstatement, holding Petitioners likely to succeed on their claim that the Corps lacked authority to incorporate WVDEP’s post-issuance modification into NWP 12, while declining to reach Petitioners’ ESA challenge to the 2017 reissuance of NWP 12 because the court likely lacked jurisdiction to decide it in this forum.
Issues
| Issue | Petitioners' Argument | Respondents' Argument | Held |
|---|---|---|---|
| 1) Jurisdiction to review ESA challenge to Corps’ 2017 reissuance of NWP 12 | The court of appeals has jurisdiction under the NGA to review the Verification which relies on an unlawful NWP 12 (ESA violations) | NGA review provision is narrow; ESA challenge to the Corps’ NWP 12 reissuance is a collateral attack on a separate agency action that belongs in district court | Court likely lacks jurisdiction over the ESA challenge to the 2017 NWP 12 reissuance; Petitioners not likely to succeed on that claim here |
| 2) Whether Corps could incorporate WVDEP’s April 2019 modification of Special Condition A into NWP 12 (authority of division engineer) | The division engineer lacked statutory or regulatory authority to incorporate a state modification made after issuance of the NWP; only the Chief of Engineers may modify an NWP | Corps and MVP say regs allow division engineers to make state-issued special conditions into regional conditions (33 C.F.R. §330.4(c)(2)) and rely on 40 C.F.R. §121.2(b) as permitting state modification | Held likely unlawful: division engineer lacked authority to incorporate WVDEP’s post-issuance modification into NWP 12; Petitioners likely to succeed on this challenge |
| 3) Whether WVDEP could modify its Section 401 special condition after certification issuance | WVDEP lacked authority to unilaterally modify an issued certification; EPA’s rule clarifies certifying authorities cannot modify certifications post-issuance | WVDEP and Corps relied on 40 C.F.R. §121.2(b) (pre-September 2020 text) permitting modification as agreed | EPA rule and statutory structure indicate certifying authorities cannot unilaterally modify issued certifications; court concludes WVDEP likely lacked authority to make the April 2019 modification |
| 4) Effect on Norfolk Reinstatement if Huntington Verification invalid | Reinstatement depends on Verification; if Verification invalid, Reinstatement is defective | Corps argues Reinstatement is separate or that acceptance is not substitution | Held: Norfolk Reinstatement likely defective because it relies on the Huntington Verification; Petitioners likely to succeed on challenge |
Key Cases Cited
- Sierra Club v. United States Army Corps of Eng'rs, 909 F.3d 635 (4th Cir. 2018) (prior decision vacating an earlier Huntington verification and addressing incorporation/waiver of WV Special Condition A)
- Nken v. Holder, 556 U.S. 418 (2009) (four-factor stay test standard)
- Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., 637 F.3d 259 (4th Cir. 2011) (distinguishing review of agency reliance on a BiOp from direct review of the BiOp itself)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (party asserting jurisdiction bears the burden)
- Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (10th Cir. 2015) (description of the national scope of NWPs)
- Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531 (1987) (environmental injury often irreparable)