APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK; SIERRA CLUB; WILD VIRGINIA, INC.; COWPASTURE RIVER PRESERVATION ASSOCIATION; FRIENDS OF BUCKINGHAM; HIGHLANDERS FOR RESPONSIBLE DEVELOPMENT; JACKSON RIVER PRESERVATION ASSOCIATION; POTOMAC RIVERKEEPER, d/b/a Potomac Riverkeeper Network, Inc.; SHENANDOAH RIVERKEEPER, a program of Potomac Riverkeeper Network; SHENANDOAH VALLEY BATTLEFIELDS FOUNDATION; SHENANDOAH VALLEY NETWORK; VIRGINIA WILDERNESS COMMITTEE, Petitioners, v. STATE WATER CONTROL BOARD; DAVID K. PAYLOR, Director, Virginia Department of Environmental Quality; ROBERT DUNN, Chair of the State Water Control Board; VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY; MELANIE D. DAVENPORT, Director, Water Permitting Division, Virginia Department of Environmental Quality, Respondents, ATLANTIC COAST PIPELINE LLC, Intervenor. [and] CHESAPEAKE BAY FOUNDATION, INCORPORATED; ROBERT WHITESCARVER; JEANNE HOFFMAN, Petitioners, v. STATE WATER CONTROL BOARD; MELANIE D. DAVENPORT, Director, Water Permitting Division, Virginia Department of Environmental Quality; ROBERT DUNN, Chair of the State Water Control Board; VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY; DAVID K. PAYLOR, Director, Virginia Department of Environmental Quality, Respondents, ATLANTIC COAST
No. 18-1077, No. 18-1079
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 14, 2019
PUBLISHED
On Petition for Review of an Order of the Federal Energy Regulatory Commission. (17-002)
Argued: September 28, 2018
Decided: January 14, 2019
Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit
Petition for review denied by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.
ARGUED: Benjamin Alan Luckett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Petitioners. Toby Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents. Brooks Meredith Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Gregory Buppert, Charmayne G. Staloff, Jonathan M. Gendzier, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Petitioners Cowpasture River Preservation Association, Friends of Buckingham, Highlanders for Responsible Development, Jackson River Preservation Association, Inc., Potomac Riverkeeper, Inc., Shenandoah Riverkeeper, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, and Virginia Wilderness Committee. Joseph M. Lovett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Petitioners Appalachian Voices, Chesapeake Climate Action Network, Sierra Club, and Wild Virginia. Jon Alan Mueller,
Margaret L. Sanner, Ariel Solaski, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for Petitioners Chesapeake Bay Foundation, Inc., Jeanne Hoffman, and Robert Whitescarver. Mark R. Herring, Attorney General, Stephen A. Cobb, Deputy Attorney General, Donald D. Anderson, Senior Assistant Attorney General, J. Duncan Pitchford, Assistant Attorney General, David C. Grandis, Assistant Attorney General, Matthew R. McGuire, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents. Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.
GREGORY, Chief Judge:
Pursuant to Section 401 of the Clean Water Act (CWA), the Virginia State Water Control Board (Board) certified that it had reasonable assurance that activities related to the construction of a natural gas pipeline would not degrade the state‘s water resources. Environmental groups and their individual members disagreed with this certification, and they petitioned this Court to review the Board‘s decision. Because we conclude that the Board‘s Section 401 Certification for upland areas was not arbitrary and capricious, we deny the petition for review.
I.
The Atlantic Coast Pipeline (ACP), a project developed and overseen by Atlantic Coast Pipeline LLC (Atlantic), is a proposed interstate natural gas pipeline, constructed by Atlantic, that will be approximately 604 miles long and 42 inches in diameter and will carry natural gas from Harrison County, West Virginia, to the eastern portions of Virginia and North Carolina. Approximately 307 miles of the ACP would traverse the Commonwealth of Virginia. There are a total of 890 water body crossings locations in Virginia, and the route of the ACP encompasses 74 migratory fish spawning waters or their tributaries. The proposed ACP access roads will intersect 89 Virginia rivers and streams and will require the clearing of thousands of acres in Virginia. To obtain approval for construction, Atlantic had to comply with the following federal and state laws and regulations relevant to this appeal.
II.
As an initial matter, Atlantic had to comply with the Natural Gas Act (NGA). Under the NGA, a party is required to obtain authorization from the Federal Energy Regulatory Commission (FERC) in the form of a certificate of public convenience and necessity to build or operate a natural gas pipeline. Upon receipt of an application for such a certificate, FERC undertakes a review of the environmental impacts of the proposed project under the National Environmental Policy Act (NEPA) and the NGA.
Because the pipeline project involves the discharge of fill and dredged materials into waterways and wetlands, Atlantic needed to obtain not only a certificate of public convenience and necessity from FERC, but also a Section 404 CWA authorization from the U.S. Army Corps of Engineers (Army Corps). See
nature, will cause only minimal adverse environmental
III.
Atlantic was also required to obtain a Section 401 Certification. The NGA allows states to regulate the environmental impacts of pipelines under the CWA. Delaware Riverkeeper Network v. Secretary Pa. Dep‘t of Envtl. Prot., 833 F.3d 360, 368 (3d Cir. 2016) (citing
Under the Virginia Water Protection (VWP) Program, the Board, after soliciting and considering public comment and consulting with relevant agencies, may issue a VWP permit if it has determined that the proposed activity is consistent with the provisions of the Clean Water Act and the State Water Control Law and will protect instream beneficial uses.
Specifically, Section 401 states [a]ny applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters must seek a certification from the State in which the discharge originates . . . that any such discharge will comply with the applicable provisions of the CWA.
IV.
Atlantic applied for the certificate of public convenience and necessity from FERC and Section 404 authorization from the Army Corps in September 2015. Atlantic filed an amendment to its FERC certificate application in March 2016. In October 2017, FERC issued the certificate to Atlantic to construct and operate the pipeline. On April 7, 2017, the DEQ issued a Section 401 Certification for the wetland, river, and streams crossings as covered in the Section 404 Nationwide Permit 12. In May 2017, the DEQ explained that the Section 401 Certification for the Pipeline would entail two separate parts: (1) the
certification for the Army Corps Nationwide Permit 12, issued in April, applying to the Pipeline‘s wetland, river, and streams crossings (the Wetlands and Streams Certification), and (2) an additional Section 401 Certification review process to evaluate the upland impacts of the Pipeline, terrestrial areas that are not
On November 9, 2017, the DEQ recommended that the Board approve a Section 401 Upland Certification of the project. On December 20, 2017, the Board issued the Upland Certification for the ACP with conditions. This Certification was distinct from the Wetlands and Steams Certification. This Upland Certification provided that it shall be effective only following submission, review and final approval as required by law of the Karst Mitigation Plan, Annual Standards and Specifications, and Erosion and Sediment Control Plans and Storm Water Management Plans, and a report to the Board and the public by DEQ on the adequacy of these materials. J.A. 29.
Petitioners timely filed two petitions for review of the Certification on January 18, 2018. The petitions were consolidated by court order on January 31, 2018. We possess jurisdiction to review the Board‘s Section 401 Upland Certification pursuant to
The petitioners contend the Board‘s issuance of the Section 401 Upland Certification was arbitrary and capricious and should be vacated for four reasons: (1) the State Agencies effectively invalidated their own finding of reasonable assurance when it voted to reopen the comment period on the Section 401 Certification of the Army Corps of Engineers Nationwide Permit 12; (2) the State Agencies arbitrarily and capriciously failed to assess the combined impacts on water quality that would result from multiple areas of construction activities within individual watershed areas; (3) the State Agencies arbitrarily and capriciously failed to conduct an adequate antidegradation review; and (4) the State Agencies arbitrarily and capriciously failed to ensure that the water quality in karst geology regions would be protected. Respondents and intervenor in turn deny that the State Agencies acted arbitrarily and capriciously and argue that the petitioners lack standing to bring this petition.
On April 12, 2018, the Board approved a second 30-day public comment period related to the Wetlands and Steams Certification. On August 21, 2018, the Board heard a presentation from the DEQ summarizing the public comment period and denied a motion to reevaluate this contested Certification.
V.
The respondents and intervenor argue as an initial matter that petitioners do not have standing to litigate this petition for review. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)) (Article III standing requires (1) an injury-in-fact (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed through a favorable judicial decision). We disagree.
This Court has previously rejected respondents’ and intervenor‘s arguments on standing. Sierra Club v. State Water Control Bd., 898 F.3d 383, 400-02 (4th Cir. 2018). Petitioners have established an injury-in-fact even though the State Agencies could choose to waive certification. We have previously held that the denial of an opportunity, in this case, to have the project vetoed or have additional restrictions can constitute an injury-in-fact. Id. at 401. In addition, petitioners successfully establish
VI.
We review Virginia‘s Section 401 Certification under the standards set forth in the Administrative Procedures Act (APA). See AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, 727 (4th Cir. 2009).1 This Court applies the arbitrary and capricious
standard of the APA to the State Agencies’ challenged findings and conclusions. Sierra Club, 898 F.3d at 403.
To survive review under the arbitrary and capricious standard, an agency decision must show that the agency examined the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
Agency action is arbitrary and capricious if the agency relies on factors that Congress did not intend for it to consider, entirely ignores important aspects of the problem, explains its decision in a manner contrary to the evidence before it, or reaches a decision that is so implausible that it cannot be ascribed to a difference in view.
Bedford Cty. Mem‘l Hosp. v. Health & Human Servs., 769 F.2d 1017, 1022 (4th Cir. 1985) (citing Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43). This Circuit has held that
[r]eview under this standard is highly deferential, with a presumption in favor of finding the agency action valid. Especially in matters involving not just simple findings of fact but complex predictions based on special expertise, a reviewing court must generally be at its most deferential. In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Deference is due where the agency has examined the
substantial evidence in the agency record to support the agency decision. As we did in Sierra Club, we decline to resolve this issue because petitioners’ claims fail even under the substantial evidence standard. 898 F.3d at 403 n.13.
relevant data and provided an explanation of its decision that includes a rational connection between the facts found and the choice made.
Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (internal quotation marks and citations omitted). Nonetheless, if a state agency‘s Section 401 certification is found to be arbitrary and capricious, the Court must vacate the certification.
A.
Turning to petitioners’ first argument, we hold that the decision to reopen the comment period did not render the State Agencies’ Section 401 Upland Certification arbitrary and capricious. The comment period was re-opened for the Wetlands and Streams Certification and not the Upland Certification at issue in this case. In any event, the Wetlands and Streams Certification was not ultimately revoked.
B.
Moving to the petitioners’ second argument, we conclude that the State Agencies’ decision not to conduct a combined effect analysis does not render their issuance of a Section 401 Upland Certification arbitrary and capricious for three reasons.
First, the Section 401 Upland Certification in question deals with project-related activities taking place in upland areas. The Upland Certification supplemented the FERC certificate and the prior Wetland and Streams Certification of the Army Corps’ Nationwide Permit 12 regarding waterways and utility line crossings. As the State
Agencies explained, the conditions in the proposed additional 401 Certification are in addition to any other Federal or State permit or regulatory requirements including the expressed conditions imposed by FERC. J.A. 1059. The Upland Certification in question is not designed to function as a stand-alone document, comprehensively covering all pieces of relevant data and potentialities. For example, record evidence available to the State Agencies explains, while the impacts to jurisdictional waters authorized by the Corps under Section 404 of the Clean Water Act are separate from upland activities that are the subject of this Certification, the Corps also analyzed the cumulative effects of linear utility projects and found that the individual and cumulative adverse effects on the aquatic environment resulting from the activities authorized by the Nationwide Permit 12 will be no more than minimal and each crossing is a single and complete project. J.A. 999. The Army Corps examined cumulative impacts, and it would be redundant and inefficient for the State Agencies to duplicate these efforts. The Upland Certification works in conjunction with other regulatory tools and cannot be judged in a void, and it supplements other pieces of the regulatory framework. It is not required to cover combined effect analysis because other parts of the regulatory process sufficiently address that subject matter. The State Agencies in the current appeal used their resources to issue the Upland Certification to fill an information gap regarding the impact of upland activities, which were not typically covered under prior CWA certifications. The State Agencies properly made a unique contribution instead of duplicating the efforts of other regulatory bodies as petitioners’ request. See Sierra Club, 898 F.3d at 407.
Second, State Agencies have broad discretion when developing the criteria for their Section 401 Certification. The only requirement imposed by the regulations is that States must establish procedures for public notice when there are applications for certification, and to the extent deemed appropriate, procedures for public hearings in connection with specific applications.
Petitioners’ rely on two federal regulations in arguing that a cumulative review is required,
Wildlands Ctr., 387 F.3d at 993-94; Idaho Rivers United, 2016 U.S. Dist. LEXIS 63767, at *33. Unlike the CWA, NEPA requires a cumulative effects analysis, and thus cases decided under NEPA are not dispositive authority here. Furthermore, Motor Vehicle Manufacturers Association, which deals with the National Highway Traffic Safety Administration, does not mention cumulative effects or the CWA, and thus the case does not stand for the proposition that the CWA should be broadened to encompass a combined impact analysis.
Finally, the State Agencies’ failure to explicitly consider the combined effects of multiple areas of construction within individual watersheds such as the Chesapeake Bay watershed and the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) did not render their decision arbitrary and capricious.2 As an initial matter, despite petitioners’ preferences, there are no express regulations that require the State Agencies to consider the combined effects of individual watersheds. In addition, the Ninth Circuit has explained that TMDLs like the Chesapeake Bay TMDL are primarily informational tools that allow states to proceed from the identification of water requiring additional planning to the required plans. Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002). Moreover, TMDLs do not give rise to an independent legal obligation. Pronsolino, 291 F.3d 1123, 1140. Consequently, the Chesapeake TMDL does not constitute a regulatory mandate that the State Agencies were required to address before issuing the Section 401 Upland Certification. Furthermore, protection measures for the
Chesapeake Bay TMDL are offered through other tools such as the FERC EIS and the Storm Water Prevention Plan. J.A. 664-665; 1138-1140.
The State Agencies more than satisfied their obligations by reviewing upland activities as well as stream and wetland crossings. The Board‘s decisions are not rendered arbitrary and capricious because it did not conduct an independent review of the cumulative effects on water quality within individual watersheds, even if this was petitioners’ preference. To deem an agency action arbitrary and capricious their decision must be so implausible that it could not be ascribed to a difference in view or the product of agency expertise. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. The lack of an explicit combined effect analysis in the Section 401 Upland Certification does not rise to
C.
1.
Turning to petitioners’ third argument, we do not find that the State Agencies’ reasonable assurance determination to be arbitrary and capricious simply because they relied on existing Virginia water quality standards and regulations to effectively address concerns regarding water quality deterioration.
Under the CWA, states have the primary role in promulgating water quality standards. Piney Run Preservation Ass‘n v. County Comm‘rs of Carroll Cty., 268 F.3d 255, 265 n.9 (4th Cir. 2001). States must initially classify the uses for which their water is to be protected and then determine the necessary level of water quality for their
preferred uses. See NRDC v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993). Virginia‘s water-quality policy is relevant in two respects: its narrative water-quality criterion and its anti-degradation policy.
Virginia‘s water-quality criterion mandates that State waters . . . shall be free from substances attributable to . . . waste in concentrations, amounts, or combinations which contravene established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life.
In addition, Virginia‘s antidegradation policy shall be applied whenever any activity is proposed that has the potential to affect existing surface water quality.
The Policy defines Tier 3 waters as exceptional; these waters shall be maintained and protected to prevent permanent or long-term degradation or impairment.
3 waters] even if degradation may be expected to temporarily occur provided that after a minimal period of time the waters are returned or restored to conditions equal to or better than those existing just prior to the temporary source of pollution.
The Policy defines Tier 2 waters as those that exceed water quality standards.
Last, Tier 1 waters constitute all Virginia waters that are not designated Tier 2 or Tier 3. The regulation classifying the level of protection for these waters’ states, existing in-stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and
In Virginia a project may be permitted under a Construction General Permit.
The CWA has an exemption for natural gas pipeline construction projects and therefore Virginia‘s regulatory scheme diverges from the federal environmental protections. See
gas pipeline projects through its Annual Standards and Specifications (AS&S) Program. See
Typically, ensuring an activity‘s compliance with water quality standards requires an antidegradation review. See Nat. Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993); see also
2.
We do not find that the State Agencies’ failure to conduct a separate antidegradation review before issuing its Upland Certification renders their decision arbitrary and capricious for two reasons.
First, in Virginia, the AS&S program requires a project developer to submit annual standards and specifications for DEQ‘s review and approval, thereby ensuring that projects will meet the same requirements that would apply were they covered by the Virginia Construction General Permit. See
Second, State Agencies did not have to conduct a separate antidegradation review because the impact on sediment on the water would only be temporary. Under FERC‘s final EIS, it was determined that any water quality impacts stemming from construction would be temporary. J.A. 623. Even with respect to Tier 3 waters, the policy states that
[a]ctivities causing temporary sources of pollution may be allowed in [Tier 3] waters . . . even if degradation may be expected to occur provided that after a minimal period of time the waters are returned or restored to conditions equal to or better that those existing just prior to the temporary source of pollution.
Thus, nothing was arbitrary and capricious about the State Agencies’ decision not to conduct a separate antidegradation review.
D.
Turning to the final challenge raised by petitioners, we find that the State Agencies’ treatment of karst terrain was not arbitrary or capricious because of the conditions imposed on the Section 401 Upland Certification.
Karst geology refers to geological formations of soluble limestone bedrock that creates underground water flow systems where the rocks have dissolved and created sinkholes, caves and underground springs and rivers. J.A. 669. The constitution of these areas presents additional environmental considerations for pipeline construction including, sinkhole collapse, sinkhole flooding and associated groundwater contamination. J.A. 904-905.
The record demonstrates that the State Agencies took petitioners’ concerns regarding karst geology into consideration. J.A. 31. Virginia‘s Section 401 Upland Certification contains five specific requirements concerning the protection of karst
terrain. J.A. 31-32. First, Atlantic must provide the State an addendum to a 51-page Karst Survey Report prior to any land disturbing activities. J.A. 212-237; J.A. 31. Second, Atlantic must follow the Karst Terrain Assessment, Construction, Monitoring, and Mitigation Plan. J.A. 31. This plan allows for route adjustments to avoid karst terrain. J.A. 1001. Third, based on the conditions in the Section 401 Upland Certification, Atlantic must conduct contingency planning in order to address any accidental spills or releases during construction on karst terrain. Fourth, water surveys regarding drinkable water in karst regions are required under the Section 401 Upland Certification. J.A. 31. Finally, Atlantic has a liability of five million dollars to cover the cost of any impacts to private water supplies, which encompasses karst regions. J.A. 32.
Reliance on these conditions, even the prospective ones, does not render the State Agencies’ issuance of the Section 401 Upland Certification arbitrary and capricious. See Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659, 677 (Wash. 2004) (holding regulators did not act arbitrarily or capriciously by basing reasonable assurance on future submissions of revised plans, reports, and studies, so long as their implementation and anticipated outcome meet the reasonable assurance test).
Moreover, the mere existence of risk to karst geology does not render the State Agencies’ decision to issue the Section 401 Upland Certification arbitrary and capricious. Based on the information in the record, this Court finds that the State Agencies had reasonable assurance that
provide it with reasonable assurance that its water quality would be protected. Sierra Club, 898 F.3d at 407.
VIII.
Governmental agencies can always take additional steps to increase the protection of the environment. But that is not the applicable legal standard this Court utilizes when reviewing a state agency‘s issuance of a Section 401 Certification. We must determine whether the agency considered the relevant factors and whether a clear error of judgment was made. Ohio Valley Envtl. Coal., 556 F.3d 177, 192. There is no indication that the State Agencies did not consider relevant factors or that they clearly made an error of judgment. In conclusion, because we find that the State Agencies did not act arbitrarily and capriciously in issuing the Section 401 Upland Certification, we deny the petition for review.
PETITION FOR REVIEW DENIED