Mountain Valley Pipeline, LLC v. Sierra ClubMountain Valley Pipeline, LLC v. Sierra Club
On Petition for Review of a Decision of the North Carolina Department of Environmental Quality. (FERC Docket No. 20181638)
Argued: January 26, 2021
Decided: March 11, 2021
Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.
ARGUED: Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., for Petitioner. Taylor Crabtree, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondents. ON BRIEF: Sean Marotta, HOGAN LOVELLS US LLP, Washington, D.C., for Petitioner. Joshua H. Stein, Attorney General, Asher P. Spiller, Assistant Attorney General, Brenda Menard, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondents. Jean Y. Zhuang, Alex J. Hardee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chaрel Hill, North Carolina, for Intervenor Haw River Assembly. Benjamin A. Luckett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Intervenors Sierra Club, Appalachian Voices, and Center for Biological Diversity.
Mountain Valley Pipeline, LLC (“MVP“) seeks to build a natural gas pipeline running through North Carolina and its rivers, streams, and wetlands. To do so, MVP needed to obtain a Clean Water Act certification from the State‘s Department of Environmental Quality (the “Department“). The Department denied MVP the certification, and MVP petitioned this Court for relief. On appeal, we hold that the Department‘s denial is consistent with the State‘s regulations and the Clean Water Act. Nevertheless, the Department did not adequately explain its decision in light of the administrative record. Thus, we grant the petition, vacate the denial, and remand to the agency for additional explanation.
I.
MVP proposes to build the Southgate Project, a naturаl gas pipeline stretching 75 miles from Chatham, Virginia to Graham, North Carolina. The Southgate Project is meant to be an extension of MVP‘s Mainline Project—a separate pipeline, still under construction—that would deliver natural gas from sources in West Virginia, Ohio, and Pennsylvania. Approximately 48 miles of the Southgate Project, or nearly two-thirds, would cross through North Carolina and more than 200 of the State‘s rivers, streams, and wetlands, some of which contain fisheries or supply drinking water.
For larger or more sensitive bodies of water, MVP proposes drilling a hole beneath the body of water to place the pipeline. To do this, MVP must excavate a pit nearby, which again may increase erosion and sedimentation. And there is risk that drilling fluid will escape into the surface waters, or that the drilled hole might collapse, causing the waterbed to collapse as well.
Furthermore, the Southgate Project‘s proposed route would cross through over twelve acres of wetlands, carving a 75-foot construction pathway in the process. As with streams, MVP would dry the area, dig the trench, lay the pipe, and backfill the land. In addition to increasing water sedimentation, the Project would permanently remove forests from two acres of wetlands to create paths for the pipeline‘s maintenance easements and access roads.
Finally, the Southgate Project would impact the Jordan Lake area, which “provides drinking water to approximаtely 500,000 people and provides recreational swimming, boating and fishing opportunities to the area.” J.A. 840. While the pipeline itself would not cross the Jordan Lake waters, the pipeline would affect the Jordan Lake‘s riparian buffer zones—zones of neighboring wildlife vegetation. The vegetation in these buffer zones protects water quality by stabilizing stream banks, mediating the temperature of water, and removing sediment and pollutants before they enter the water. See State of North Carolina, Envtl. Mgmt. Comm‘n, Dep‘t of Envtl. Quality, Study of the State‘s Riparian Buffer Protection Program Pursuant to SL 2015-246 (May 11, 2016), available at https://perma.cc/24UC-5ZU7 (saved as ECF opinion attachment). By removing vegetation from these riparian zones, the pipeline‘s construction would diminish this natural layer of protection. The proposed pipeline would thereby affect more than 400,000 square feet of riparian buffers, though thе Federal Energy Regulatory Commission claims that “[d]ue to the distance between the Project and the Jordan Lake impoundment and the proposed surface water protection measures, no impacts would be expected to Jordan Lake‘s water quality or function.” J.A. 840.
In its environmental impact summary, the Federal Energy Regulatory Commission (“FERC“) concluded that “[m]ost adverse environmental impacts would be temporary or short-term during construction, but some long-term and permanent environmental impacts would occur on forest and wetlands.” J.A. 701.
Under the Natural Gas Act, a party seeking to build or operate a natural gas pipeline must acquire a certificate of public convenience and necessity from FERC.
In this allocation of authority, Congress recognized the essential role that States must play in protecting their own waters. Congress enacted the Clean Water Act in part to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” Sierra Club v. U.S. Army Corps of Eng‘rs, 909 F.3d 635, 647 (4th Cir. 2018) (quoting
North Carolina exercises this authority through its Department of Environmental Quality.
Besides its implementation of water standards, the Department also reviews applications for certification under Section 401 of the Clean Water Act. See
B.
In May 2018, MVP sought FERC authorization for the Southgate Project. FERC issued a notice of intent to prepare an environmental impact statement, soliciting public comments. That same year, MVP submitted a Section 401 certification application to the North Carolina Department
FERC issued its draft environmental impact statement in 2019, and a year later, the agency issued its final environmental impact statement and a certificate of public convenience and necessity for the Southgate Project. However, FERC‘s certificate included a key condition. Because the Southgate Project depended upon the Mainline Project, and because the Mainline Project had several of its permits invalidated by this Court, FERC would permit construction of the Southgate Project only once MVP acquired all required federal permits for its Mainline Project.
MVP reapplied for a Section 401 certification from the Department. The Department began review of the application, requesting public comments and scheduling a public hearing. During this process, the Department requested information regarding the permits, litigation, and enforcement actions affecting MVP‘s Mainline Project and how these developments would affect the Southgate Project. In response, MVP acknowledged a number of lawsuits hindering progress on the Mainline Project, including Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018) (vacаting and remanding U.S. Forest Service‘s decision amending the National Forest Land and Resource Management Plan for the Mainline Pipeline); U.S. Army Corps of Eng‘rs, 909 F.3d at 639 (vacating the U.S. Army Corps’ authorization of the Mainline Project under Nationwide Permit 12 and suggesting that “an individual permit would likely be necessary“); and Wild Va. v. U.S. Dep‘t of the Interior, No. 19-1866 (4th Cir. Oct. 11, 2019) (challenging the U.S. Fish and Wildlife Service‘s Biological Opinion and Incidental Take Statement for the Mainline Project). MVP also described several enforcement actions against the Mainline Project by Virginia and West Virginia due to the Project‘s violation of various permits and State environmental laws.
After conducting a public hearing, the Department‘s hearing officer issued a report on MVP‘s Section 401 certification application on August 11, 2020. Addressing public comments,2 the hearing officer discussed several common subjects, including climate change, cumulative environmental impacts, projeсt purpose, environmental justice, sediment and erosion control, the effect of construction on streams and water, and the project‘s reliance on the completion of the Mainline pipeline. For some comments—such as those questioning the economic need for the Southgate Project—the hearing officer noted that the comments were “outside the evaluation criteria established in N.C. Administrative Code for the review of 401 Water Quality Certifications and Buffer Authorizations.” See, e.g., J.A. 1342. The hearing officer also observed that “[t]he majority of comments received raised concerns over the degradation of ground and surface waters as a result of the construction and operation of the pipeline.” J.A. 1346.
The hearing officer then offered his recommendations, addressing each of the individual criteria for certification undеr
However, the hearing officer also discussed whether the Southgate Project “[h]as no practical alternative[s],” J.A. 1347, 1356, a separate requirement in both the State‘s 2019 certification regulation3 and the State‘s riparian buffer regulation. See
In the absence of the MVP Mainline pipeline‘s completion in Virginia, the MVP Southgate project has no independent utility. In essence, it would be a pipeline from nowhere to nowhere incapable of carrying any natural gas, and certainly not able to fulfill its basic project purpose, while having no practical alternative. As such, prior to incurring any impacts to North Carolina natural resources, and to ensure that the maximum avoidance and minimization of impacts to North Carolina water and buffer resources occurs, a level of certainty regarding the completion of the MVP Mainline pipeline is required.
J.A. 1348. Thus, the officer rеcommended that the Department take one of two options: (1) issue a certification including the condition “that construction of the MVP Southgate pipeline (and its corresponding impacts) cannot occur until all legal ambiguities presently surrounding the mainline pipeline have been resolved, and all necessary permits and authorizations have been obtained“; or (2) deny certification. J.A. 1349; see also J.A. 1357-58 (recommending the same two options in the practical alternatives analysis relevant to the riparian buffer standards).
The same day the hearing officer issued his report, the Department issued its final decision, denying Section 401 certification for the Southgate Project. It determined that the Southgate Project “is inextricably linked to, and dependent upon” completion of the Mainline Pipeline Project. J.A. 1362. But because “several federal рermits necessary for the construction of the MVP Mainline project have been suspended or are pending, with some in litigation,” and because FERC had “issued a stop-work order on the currently incomplete MVP Mainline project,” the Department explained that “[t]he uncertainty of the MVP Mainline project‘s completion presents a critical risk to . . . the fundamental purpose of MVP Southgate.” J.A. 1363. Consequently, the Department wrote that “[c]ertification of this project, without further confidence that it can achieve its stated purpose, is inappropriate and allows for avoidable environmental impacts to water quality and protected riparian buffers.” Id. Specifically,
The FEIS notes that most adverse environmental impacts of the MVP Southgate project would occur during construction. And that the MVP Southgate project has the potеntial to result in “sedimentation and turbidity, alteration or removal of instream and stream bank cover, stream bank erosion, introduction of water pollutants, water depletions, and entrainment of small fishes and fry
during water withdrawals [which] could increase the rates of stress, injury, and mortality experienced by fish and other aquatic life.” In addition, the project would unnecessarily risk impacting high-quality waters and protected and critical drinking water supplies of North Carolinians.
Id. Accordingly, the Department denied certification, as “[a]pproving construction activities and thereby allowing the most adverse environmental impacts—without certainty of the project‘s utility upon completion—is inconsistent with principles of minimization.” Id.
MVP timely petitioned this Court for review.4
II.
For the proposed construction of a natural gas pipeline, the United States Court of Appeals for that circuit “shall have original and exсlusive jurisdiction over any civil action” challenging a State agency‘s decision “to issue, condition, or deny any permit . . . required under Federal law[.]”
“Review under this standard is highly dеferential, with a presumption in favor of finding the agency action valid.” Id. (quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)). That said, a court “must not reduce itself to a ‘rubber-stamp’ of agency action.” Defs. of Wildlife, 762 F.3d at 396 (quoting N.C. Wildlife Fed‘n v. N.C. Dep‘t of Transp., 677 F.3d 596, 601 (4th Cir. 2012)). Rather, it “must ensure that the agency has examined the relevant data and articulated a satisfactory explanation for its action.” Defs. of Wildlife, 931 F.3d at 345 (internal quotations omitted).
III.
A.
MVP first argues that the Department‘s denial of certification was arbitrary and capricious because it did not comply with its own regulations. At the time of the application, the Department‘s regulations stated that the Department “shall issue a certification upon determining that” the proposed activity:
- has no practical alternative under the criteria outlined in Paragraph (f) of this Rule;
-
will minimize adverse impacts to the surface waters based on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions under the сriteria outlined in Paragraph (g) of this Rule; - does not result in the degradation of groundwaters or surface waters;
- does not result in cumulative impacts, based upon past or reasonably anticipated future impacts, that cause or will cause a violation of downstream water quality standards;
- provides for protection of downstream water quality standards through the use of on-site stormwater control measures; and
- provides for replacement of existing uses through mitigation as described at Subparagraphs (h)(1) of this Rule.
MVP contends that the Department‘s own hearing officer found these criteria to be satisfied. It points to the hearing officer‘s report, where he stated that the Southgate Project “has minimized impacts to surface waters and wetlands to the greatest extent practical“; that “[u]pon successful completion of the restoration and monitoring activities, the streams, buffers, and wetland impact areas will continue to support existing uses of hydrology, vegetation, and aquatic and wildlife habitat“; and that “[t]he project is not expected to violate water quality standards if the certification is issued and if the [recommended] conditions in the 401 Water Quality Certification are fully complied with by the applicant (or its successor).” J.A. 1349–50, 1353. From these comments, MVP concludes that the State was required to issue certification.
But the hearing officer did not claim that the Southgate Project satisfied all certification criteria. Under the “no practical alternative” rеquirement, the pipeline fell short. Until the Mainline Project was complete—a milestone stalled by litigation—the hearing officer found that the Southgate Project‘s construction would produce unnecessary harm to the State‘s waters. “[P]rior to incurring any impacts to North Carolina natural resources,” the hearing officer wrote, the Department should require “a level of certainty regarding the completion of the MVP Mainline pipeline” to “ensure [] the maximum avoidance and minimization of impacts to North Carolina water and buffer resources[.]” J.A. 1357. The Department‘s final decision reiterated this same reasoning. See J.A. 1362-63.
MVP acknowledges these observations by both the Department and its hearing officer, but it claims that such reasoning strays beyond the scope of the State‘s current certification regulation (made effective two months before the Department‘s final decision). Opening Br. at 24–28. The regulation had been revised, in part, to combine the minimization and practical alternatives criteria into a single criterion that only required minimization “during and after project completion.”
majority of the application period.” Resp. Br. at 39–41; see also Intervenors’ Br. at 28–36.7
We need not decide which version of the certification regulation to consider. Even under the current version of the regulation, the Department‘s minimization reasoning is consistent with its water quality standards: namely, its riparian buffer rules. The current regulation incorporates the riparian buffer rules by requiring the Department to consider whether the project “would cause or contribute to a violation of water quality standards.”
The Department‘s decision is thereby consistent with the water quality standards listed in its Jordan Rules. The Department noted that the Southgate Project‘s basic purpose—conveying fuel from the Mainline Project—could be practically accomрlished in a manner that would better minimize disturbance to water quality: by building the Southgate Project only once the Mainline Project receives the necessary permits. Doing so would ensure that the State avoids premature or unnecessary harm to its waters.
In reply, MVP argues that the Department did not invoke the riparian buffer rules as a basis for its denial and that those rules are not applicable water quality standards. Reply Br. at 14. Neither argument is correct. The Department‘s denial letter expressly invokes the Southgate Project‘s effects on riparian buffers: “Certification of this project, without further confidence that it can achieve its stated purpose, is inappropriate and allows for avoidable environmental impacts to water quality and protected riparian buffers.” J.A. 1363 (emphasis added). And the riparian buffer rules are clearly applicable water quality standards8: “The purpose of
MVP also claims that the Department‘s practical alternatives analysis ventured into a “freeform weighing” of the pipeline‘s benefits against its costs. But the Department does not dispute the merit of the Project. It did not weigh, for instance, the pipeline‘s economic benefits or the energy it would produce. Rather, the Department had to consider the pipeline‘s function to assess the reasonable range of alternatives that would minimize its adverse impact on water while still allowing the pipeline to work as intended. While an agency‘s analysis often takes the fоrm of considering spatial alternatives (such as the pipeline‘s path),9 here, the Department‘s analysis considered a temporal alternative (postponing construction of the Southgate Project until the predicate Mainline Project completes the permitting process). As the Department points out, it denied certification without prejudice to MVP re-submitting its application at a later time. Thus, the Department properly denied certification, as it found that the temporal adjustment constituted a practical alternative that would better minimize harm to the State‘s waters.
B.
Next, MVP contends that the Department exceeded its statutory authority under the Clean Water Act because the Department based its decision on policy goals unrelated to water quality. Opening Br. at 30-36. But for the same reasons that the Department‘s decision is сonsistent with its water standards, its decision is consistent with the Clean Water Act.
The Clean Water Act “requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters.” PUD No. 1 of Jefferson Cnty., 511 U.S. at 700. While a State‘s authority under the Clean Water Act “is not unbounded,” id. at 712, the Supreme Court recognizes that a State‘s antidegradation rules—rules to maintain existing, beneficial uses of water—are appropriate requirements under the Clean Water Act. Id. at 713. North Carolina‘s riparian buffer rules fall plainly within that authority. See
MVP argues that the Department exceeded its statutory role by stepping into FERC‘s shoes and making a judgment about the Southgate Project‘s public convenience and necessity. Opening Br. at 30–35. To MVP, any proposed project would have some potential impact on water; thus, a State could reject any project by invoking this hypothetical risk when the State was in faсt motivated by concerns with the project‘s viability or utility. But this argument assumes MVP‘s premise that the Department‘s decision rested on weighing the costs and benefits of the Project. As explained above, that is not the case. The Department considered the Southgate Project‘s function only to determine the reasonable range of alternatives that would minimize its adverse impact on water while still accomplishing its function. Nor is such reasoning without limit. To deny certification under a practical alternatives requirement, a State‘s decision must be grounded in impacts to water; the alternatives considered must be practical; the consideration of alternatives must be reasonably consistent with the administrative record; and the agency‘s decision must not be arbitrary and capricious. By invoking such analysis here, the Department acted within the boundaries of the Clean Wаter Act.
To be clear, FERC plays an important part in reviewing any proposed pipeline. But the Natural Gas Act expressly preserves States’ duties under the Clean Water Act, and FERC‘s powers cannot sideline States from protecting their own waters. See Sierra Club, 898 F.3d at 388.
MVP also cites two State court cases rejecting agency actions as beyond their statutory authority. But both arose in different circumstances. In Commonwealth Power Co. v. Department of Natural Resources, the Michigan Court of Appeals reversed the State‘s denial of a Section 401 certificate on the grounds that the applicant refused to submit a study on a proposed hydroelectric power plant‘s effects on fish mortality. 2000 WL 33521869, at *2 (Mich. Ct. App. Mar. 21, 2000) (per curiam). There, the court held that the agency exceeded the bounds of its authority by ordering a study on fish mortality because the State “did not know or did not express what level of fish kill was acceptable or what type of рrotective measures were necessary to maintain the proper ‘use’ of the particular river for particular species of fish.” Id. By contrast, North Carolina‘s water standards have set a clear standard for the degree of acceptable impact on its water and riparian buffers: the least amount practicably possible.
In Summit Hydropower v. Commissioner of Environmental Protection, the Connecticut Superior Court reversed the
C.
Last, MVP claims that the Department‘s denial was arbitrary and capricious because it failed to adequately explain its decision. Specifically, MVP argues that the Department: (1) did not respond to MVP‘s analysis for why its Mainline Project would receive the appropriate certification; (2) did not cite the water quality standards that the Southgate Project would purportedly violate; (3) did not explain its disagreement with the hearing officer‘s findings; and (4) did not explain why the Department chose to deny MVP‘s application rather than granting the Southgate Project a certificate conditioned upon the Mainline Project receiving all necessary permits. The Department‘s decision adequately explained its concerns with the Mainline Project and the adverse effects of the Southgate Project. But it failed to address the hearing officer‘s minimization findings and explain why it chose to dеny certification rather than granting it conditionally.
First, MVP claims that the Department did not address the company‘s assurances that it was in the process of acquiring the necessary permits for its Mainline Project. Opening Br. at 39–40. But the Department adequately explained its concerns with the uncertainty surrounding the Mainline Project, as the information disclosed by MVP revealed that “several federal permits necessary for the construction of the MVP Mainline project have been suspended or are pending, with some in litigation.” J.A. 1363. Moreover, the Department observed that FERC had issued a stop-work order on the Mainline Project. Id. Taking these facts together, the Department determined that “[c]ertification of this project, without further confidence that it can achieve its stated purpose, is inappropriate and allows for avoidable environmental impаcts to water quality and protected riparian buffers.” Id.
MVP insists that the Department should have addressed a chart MVP provided and its representations that it was working diligently to obtain all permits for the Mainline Project.10 Opening Br. at 39–40. MVP also claims that the Department never explained its criteria for what constituted an unacceptable degree of uncertainty. Reply Br. at 25. But there is no requirement that the Department comment on every pending certificate and lawsuit, individually, to observe that the slew of suits and missing permits poses a barrier to the Mainline Project‘s completion. See U.S. Forest Serv., 897 F.3d at 597 (“It is of course always possible to explore a subject more deeply and to discuss it more thoroughly.“). Nor is there a requirement that the Department establish a quantifiable metric for declaring a project to be too risky, especially when observing that a predicate project simply has not obtained
Second, MVP suggests that the Department‘s decision is inadequate because “the Department does not cite—much less analyze—any specific North Carolina water-quality standard the Southgate Project might violate.”11 Opening Br. at 34–35. But the Department did use language tracking North Carolina‘s minimization and avoidance provisions. The Department explained that the Southgate Project as proposed is “inconsistent with principles of minimization,” as it “allows for avoidable environmental impacts tо water quality and protected riparian buffers.” J.A. 1363. The Department further stated that the Southgate Project could cause “sedimentation and turbidity, alteration or removal of instream and stream bank cover, stream bank erosion, introduction of water pollutants, water depletions, and entrainment of small fishes and fry during water withdrawals [which] could increase the rates of stress, injury, and mortality experienced by fish and other aquatic life.” Id. And the Department observed that “the project would unnecessarily risk impacting high-quality waters and protected and critical drinking water supplies of North Carolinians.” Id. This analysis tracks the requirements of the State‘s riparian buffer rule and its antidegradation requirements. See
if “[t]he basic project purpose cannot be practically accomplished in a manner that would better minimize disturbance, preserve aquatic life and habitat, and protect water quality“).
True, the Department‘s decision did not offer direct citations to the North Carolina general statute or administrative code. Regardless, we may “uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” Roe v. Dep‘t of Def., 947 F.3d 207, 220 (4th Cir. 2020) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)). Even without direct citations to State code, we can reasonably discern from the Department‘s language that it relied on the State‘s riparian buffer rule and its minimization and avoidance requirements.
Third, MVP claims that the Department did not explain why it diverged from the hearing officer‘s findings that the Southgate Project fully minimized its potential impacts on surface waters. Opening Br. at 37–39. The hearing officer wrote that “MVP has minimized impacts to surfаce waters and wetlands to the greatest extent practical.”12 J.A. 1349. That statement
construction activities and thereby allowing the most adverse environmental impacts—without certainty of the project‘s utility upon completion—is inconsistent with principles of minimization.“). While this apparent inconsistency may be resolved by noting that the hearing officer was using the term “minimization” with respect to the specific language in a regulatory sub-provision, see J.A. 1349, the Department did not offer that or any other explanation to reconcile its conclusions with those of its officer. Accordingly, we remand for the Department to address the hearing officer‘s findings. See Fred Meyer Stores, Inc. v. Nat‘l Labor Relations Bd., 865 F.3d 630, 638 (D.C. Cir. 2017) (remanding because the agency failed to “reasonably reflect upon the information contained in the record and grapple with contrary evidence“).
Finally, the Department failed to explain why it chose to deny certification instead of conditioning certification upon the Mainline Project receiving its permits. The Department‘s hearing officer recommended that the Department take either of those two options. On appeal, the Department—and Intervenors—explain why the State might have preferred to deny the certification. The Department states that the hearing officer‘s suggested condition of completion for the Mainline Project may be too vague to be enforceable. See Resp. Br. at 65–66. Intervenors add that MVP‘s acquisition of various permits for the Mainline Project provides no guarantee, given several lawsuits that later revealed deficiencies in that Project and its permits. Intervenors’ Br. at 49–55. These are fair reasons why the Department may have considered it the better policy to deny certification rather than issue it conditionally. But the Department did not offer those rationales in its decision; its denial letter did not explain at all why it chose outright denial over conditional certification. And the Department cannot now supplement its reasoning through representations made on appeal. See Michigan v. EPA, 576 U.S. 743, 758 (2015) (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)). Given a choice between two options, the Department had the obligation to explain why it chose one over another. See Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1912 (2020) (citing Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46–47 (1983)). It did not do so here.
Thus, on remand, the Department must address the hearing officer‘s findings and explain why the Department chose denial over conditional certification.
IV.
For the foregoing reasons, we grant MVP‘s petition, vacate the North Carolina Department of Environmental Quality‘s denial of certification, and remand to the Department for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED
Notes
- has avoided and minimized impacts to surface waters and wetlands to ensure any remaining surface waters or wetlands, and any surface waters or wetlands downstream, continue to support existing uses during and after project completion;
- would cause or contribute to a violation of water quality standards;
- would result in secondary or cumulative impacts that cause or contribute to, or will cause or contribute to, a violation of water quality standards;
- provides for replacement of existing uses through compensatory mitigation as described in Paragraph (c) of this Rule;
- for Class SWL wetlands, is water dependent and requires access to water as a central element of its basic function. Projects funded by government agencies may be exempted from this requirement; and
- for Class UWL wetlands and wetlands that are habitat for state or federally listed threatened or endangered species, is necessary to meet a demonstrated public need.