SIERRA CLUB; WEST VIRGINIA RIVERS COALITION; INDIAN CREEK WATERSHED ASSOCIATION; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK v. UNITED STATES ARMY CORPS OF ENGINEERS; MARK T. ESPER, in his official capacity as Secretary of the U.S. Army; TODD T. SEMONITE, in his official capacity as U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers; PHILIP M. SECRIST, in his official capacity as District Commander of the U.S. Army Corps of Engineers, Huntington District; MICHAEL E. HATTEN, in his official capacity as Chief, Regulatory Branch, U.S. Army Corps of Engineers, Huntington District
No. 18-1173, 18-1757
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
November 27, 2018
PUBLISHED
Petitioners,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; MARK T. ESPER, in his official capacity as Secretary of the U.S. Army; TODD T. SEMONITE, in his official capacity as U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers; PHILIP M. SECRIST, in his official capacity as District Commander of the U.S. Army Corps of Engineers, Huntington District; MICHAEL E. HATTEN, in his official capacity as Chief, Regulatory Branch, U.S. Army Corps of Engineers, Huntington District,
Respondents,
MOUNTAIN VALLEY PIPELINE, LLC,
Intervenor.
No. 18-1757
SIERRA CLUB; WEST VIRGINIA RIVERS COALITION; INDIAN CREEK WATERSHED ASSOCIATION; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK,
Petitioners,
v.
Respondents,
MOUNTAIN VALLEY PIPELINE, LLC,
Intervenor.
On Petitions for Review of Actions by the U.S. Army Corps of Engineers. (LRH-2015-592-GBR)
Argued: September 28, 2018
Decided: November 27, 2018
Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.
Vacated by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Thacker joined.
ARGUED: Derek O. Teaney, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Petitioners. John David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. George Peter Sibley, HUNTON ANDREWS KURTH, LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Evan D. Johns, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg, West Virginia, for Petitioners. Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Emily A. Polachek, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Kevin S. Elliker, Richmond, Virginia, Deidre G. Duncan, Brian R. Levey, HUNTON ANDREWS KURTH LLP, Washington, D.C.; Robert McLusky, Douglas J. Crouse, JACKSON KELLY PLLC, Charleston, West Virginia, for Intervenor.
The Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices, and Chesapeake Climate Action Network (“Petitioners“) ask this Court to set aside Respondent U.S. Army Corps of Engineers’ (the “Corps“) December 22, 2017, verification (“Verification“) and July 3, 2018, reinstated verification (“Reinstatement“) that construction of the Mountain Valley Pipeline (the “Pipeline“) can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12“), rather than an individual permit. For the reasons that follow, we hold that the Corps lacked statutory authority to substitute its own special condition “in lieu of” a different special condition imposed by West Virginia as part of its certification of NWP 12.
We further conclude that, absent completion of the notice-and-comment procedures required by the Clean Water Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. Because West Virginia did not follow its federally mandated notice-and-comment procedures in waiving another special condition the state imposed as part of its certification of NWP 12, that condition remains a required—but, in this case, unsatisfied—condition of the nationwide permit. Accordingly, we vacate, in their entirety, the Corps’ December 22, 2017, Verification and July 3, 2018, Reinstatement authorizing the Pipeline‘s compliance with NWP 12.
A.
The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing the Corps’ Pittsburgh, Norfolk, and Huntington Districts. In the Corps’ Huntington District, the Pipeline and related access roads propose to cross 591 federal water bodies, including four major rivers (the Elk, Gauley, Greenbrier, and Meadow), three of which are navigable-in-fact rivers regulated by Section 10 of the Rivers and Harbors Act of 1899 (the Elk, Gauley, and Greenbrier).
The Corps has established, by regulation, two methods to obtain a permit to discharge fill material into federal waters. See Crutchfield v. Cty. of Hanover, Va., 325 F.3d 211, 214 (4th Cir. 2003). First, the Corps “can issue individual permits on a case-by-case basis,” through a “resource-intensive review” requiring “extensive site-specific research and documentation, promulgation of public notice, opportunity for public comment, consultation with other federal agencies, and a formal analysis justifying the ultimate decision to issue or refuse the permit.” Id. (citing
NWP 12, reissued most recently in 2017, 82 Fed. Reg. 1860 (Jan. 6, 2017), authorizes the discharge of dredged or fill material into federal waters attributable to “the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States.” J.A. 40. NWP 12 includes several General Conditions designed to ensure that activities falling under NWP 12 minimally impact water quality, the aquatic environment and adjacent land, and water bodies managed by the Corps. See, e.g., J.A. 45–46 (establishing conditions related to “adverse effects from impoundments,” “soil erosion and sediment controls,” and “removal of temporary fills.“). General Condition 7 provides that, “No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization.” J.A. 46.
As with any other federal Clean Water Act permit, an applicant for a Section 1344(a) permit, like Mountain Valley, “shall provide the [Corps] a certification from the State in which the discharge originates or will originate,” unless the state waives, either explicitly or by inaction, its right to independently certify the project.
Pursuant to its authority under
Individual State Water Quality Certification is required for
- Pipelines equal to, or greater than 36 inches in diameter;
- Pipelines crossing a Section 10 river (unless the bore is greater than 100 feet below the stream bed on the Ohio River mainstem, or greater than 50 feet below the stream bed on the Ohio River mainstem, or greater than 50 feet below the stream bed on all other Section 10 waters);
J.A. 43. And Special Condition C provides that:
Individual stream crossings must be completed in a continuous, progressive manner and within 72 hours during seasonal normal or below normal stream flow conditions. Crossings on the Ohio River, Kanawha River, New River, Monongahela River, and the Little Kanawha River, below the confluence with Hughes Rivers, are exempt from the 72-hour requirements. All stream activities shall be completed as rapidly as possible.
J.A. 43–44. Accordingly, under Special Conditions A and C, NWP 12 in West Virginia requires certain pipelines to obtain an individual Section 401 certification (Special
B.
To comply with Special Condition A, Mountain Valley applied to the West Virginia Department of Environmental Protection (the “State Department“) for an individual water quality certification. On March 23, 2017, the State Department issued a conditional grant of the certification, subject to certain special conditions and the standard 401 conditions. Petitioner Sierra Club timely petitioned this Court for review of the Department‘s individual certification. Sierra Club v. W. Va. Dep‘t of Envtl. Prot., No. 17-1714, ECF No. 3 (4th Cir. June 9, 2017). The State Department then sought voluntary remand with vacatur of its verification with this Court, contending that “the information used to issue the Section 401 Certification needs to be further evaluated and possibly enhanced” and that it “needs to reconsider its antidegradation analysis in the Section 401 Certification.” Id., ECF No. 42 (4th Cir. Sept. 13, 2017). On October 17, 2017, we granted the motion, vacated the Pipeline‘s individual water quality certification, and remanded to the State Department pursuant to
On December 22, 2017, the Corps issued the Verification concluding that the Pipeline project meets the criteria of NWP 12, provided Mountain Valley “compl[ies] with all terms and conditions of the enclosed material and the enclosed special conditions.” J.A. 1–2. The Verification recognized that Mountain Valley‘s expected construction timeframe of these crossings would “take a total of 4-6 weeks to complete, 1-3 weeks for each side of the crossings.” J.A. 86. Based on consultation with FERC, Mountain Valley plans to use a “dry open cut” method to construct the Pipeline through four major, Corps-managed rivers (the Elk, Gauley, Greenbrier, and Meadow), which requires installing cofferdams directing water away from a riverbed construction area to minimize sedimentation and erosion. This “dry” open-cut method takes longer than “wet” open-cut construction, which involves constructing a pipeline while water continues to flow over the riverbed.
On May 22, 2018, pursuant to
On July 3, 2018, the Corps sent the Reinstatement to Mountain Valley “reinstat[ing] with modifications” its prior Verification of the Pipeline project‘s compliance with NWP 12. J.A. 229–30. Citing
Construction of each river crossing (Greenbrier River, Gauley River, Elk River and Meadow River) will [be] conducted using the “dry” open-cut methodology (water-filled cofferdam approach) to minimize adverse effects to water quality, the aquatic environment, and overall environmental impacts. This Special Condition shall apply in lieu of Special Condition C of the West Virginia Department of Environmental Protection‘s (WVDEP) Section 401 Water Quality Certification (WQC) issued for Nationwide Permit 12 in West Virginia.
Petitioners again timely filed a petition with this Court challenging the Corps’ Reinstatement, and on July 6, 2018, Petitioners and Respondents filed a joint motion to consolidate that petition with Petitioners’ earlier challenge to the Verification. Petitioners raise four issues: (1) whether the Corps exceeded its authority in the Reinstatement to impose Special Condition 6 “in lieu of” NWP 12‘s Special Condition C; (2) whether the Huntington Verification is inconsistent with Special Condition A; (3) whether the Verification lacked sufficient analysis of General Condition 7, and therefore fails arbitrary and capricious review;1 and (4) whether complete vacatur or remand without vacatur is an appropriate remedy.
Petitioners’ challenges to the Verification and the Reinstatement are governed by the standards for reviewing administrative actions set forth in the Administrative Procedure Act (“APA“). Under the APA, we may “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.”
We first address Petitioners’ claim that the Corps exceeded its statutory and regulatory authority by imposing Special Condition 6 “in lieu of” NWP 12‘s Special Condition C. Petitioners assert that the verification was “not . . . in accordance with law,”
A.
1.
We turn first to the statutory claim. Petitioners challenge Special Condition 6 on grounds that the Corps lacks authority under the Clean Water Act to “reject Section 401 certification conditions or remove them from a federal permit.” Pet‘rs’ Br. at 30. When a challenger asserts that an agency action conflicts with the language of a statute, we generally apply the two-step analytical framework set forth in Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). A court first “looks to the ‘plain
But as the Supreme Court held in United States v. Mead Corp., 533 U.S. 218 (2001), when an agency does not act with “the force of law,” the agency action is not entitled to Chevron deference. Sierra Club v. U.S. Dep‘t of the Interior, 899 F.3d 260, 286 (4th Cir. 2018) (quoting Mead, 533 U.S. at 226–27). Rather, in such circumstances, we afford the agency “modest” Skidmore deference, to the extent the agency‘s reasoning “give[s] it power to persuade,” or, in the absence of such reasoning, no deference at all. Sierra Club, 899 F.3d at 288. An agency interpretation carries the “force of law” when “first, Congress has ‘delegated authority to the agency generally to make rules’ and, second, the ‘agency interpretation claiming deference was promulgated in the exercise of that authority.‘” Id. at 286 (quoting Mead, 533 U.S. at 226–27).
When an agency‘s interpretation “derives from notice-and-comment rulemaking,” it will “almost inevitably receive Chevron deference.” Knox Creek Coal Corp. v. Sec‘y of Labor, Mine Safety & Health Admin., 811 F.3d 148, 159 (4th Cir. 2016) (citation omitted). However, “where an agency has interpreted a statute without aid or constraint from APA rulemaking procedures,” we must look for “‘other circumstances‘. . . where there are ‘indicia of a legislative-type determination.‘” Id. (citations omitted). Agency
The Corps’ July 3, 2018, Reinstatement to Mountain Valley authorizing Special Condition 6 “in lieu of” Special Condition C necessarily rests on the Corps’ determination that it has the statutory authority to substitute, on a case-specific basis, its own conditions for those conditions imposed by states as part of their certification of an NWP. Yet this determination, which the Corps nowhere expressly addresses in the Reinstatement, neither results from notice-and-comment rulemaking nor bears any of the “procedural hallmarks of a legislative-type determination.” Id. at 288. This legal determination, upon which the Reinstatement relies, has no precedential value.
Indeed, the imposition of Special Condition 6 is highly specific to the four river crossings across the Greenbrier, Gauley, Elk, and Meadow Rivers, and makes no mention of the Condition even applying to all future crossings across those rivers. See also High Sierra Hikers Ass‘n v. Blackwell, 390 F.3d 630, 648 (9th Cir. 2004) (“The Forest Service was not acting with the force of law in this case because it was granting permits, not acting in a way that would have precedential value for subsequent parties.“). Nor does the Reinstatement indicate any “adversarial or deliberative process where opposing views were presented or considered” with respect to whether the Corps has the statutory
Because the Corps’ interpretation of the Clean Water Act with respect to Special Condition 6 does not merit Chevron review, we next consider whether it is entitled to Skidmore deference. Skidmore deference is appropriate depending upon “the thoroughness evident in [the agency‘s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140.
Here, however, the Reinstatement is completely devoid of any statutory analysis—Special Condition 6 does not even reference the Clean Water Act. In fact, the only explicit reference to the Act in the entire Reinstatement states the following: “Section 404 of the Clean Water Act . . . requires a Department of Army permit be obtained prior to discharging dredged and/or fill material into waters of the United States, including wetlands.” J.A. 228. There is no effort made to explain or justify how the statutory text affords the Corps the authority to issue one special condition “in lieu of” a state-imposed condition, as it did in replacing Special Condition C with Special Condition 6. See
Accordingly, the Corps’ Reinstatement warrants neither Chevron nor Skidmore deference. So, we review de novo the Corps’ construction of its authority under the Clean Water Act to replace a state-imposed condition on a nationwide permit.
2.
In interpreting a statute, the “cardinal rule . . . is that the intent of [Congress] is to be given effect.” NLRB v. Wheeling Elec. CO., 444 F.2d 783, 787 (4th Cir. 1971). To ascertain congressional intent, we first “determine whether the language at issue has a plain and unambiguous meaning.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). When considering the plain meaning of the statutory language, we also “must consider the context in which the statutory words are used because . . . we read statutes as a whole.” Ayres v. U.S. Dep‘t of Veterans Affairs, 473 F.3d 104, 108 (4th Cir. 2006) (citation omitted). If the statute is unambiguous, “our inquiry into Congress’ intent is at an end, for if the language is plain and the statutory scheme is coherent and consistent, we need not inquire further.” William v. Gonzales, 499 F.3d 329, 333 (4th Cir. 2007) (internal quotation marks omitted). We also look to a statute‘s legislative history as further evidence of congressional intent. Elm Grove Coal Co. v. Director, O.W.C.P., 480 F.3d 278, 293 (4th Cir. 2007). Accordingly, we start with the plain language of Section 1341(d) of the Clean Water Act but also consider its structure, purpose, and legislative history as additional evidence of congressional intent. See
The plain language of Section 1341(d) of the Clean Water Act provides that any state certification “shall become a condition on any Federal license or permit.”
The Corps concedes as much, acknowledging that it is an “established principle that an agency may not ignore a state condition and issue a permit with less stringent conditions.” Gov‘t Br. at 21. Nevertheless, the Corps contends that its imposition of
The Corps’ argument fails for two reasons. First, contrary to the Corps’ position, the Reinstatement‘s explicit language applying Special Condition 6 “in lieu of” Special Condition C indicates that it is replacing Special Condition C. See Dorzback v. Collison, 195 F.2d 69, 72 (3d Cir. 1952) (“The phrase ‘in lieu of’ means ‘instead of.‘“). By substituting Special Condition 6 for Special Condition C, the Corps effectively and unlawfully “reject[ed]” a state-imposed condition. F.E.R.C., 952 F.2d at 548. Second, the Corps’ argument presupposes that the Clean Water Act‘s requirement regarding the mandatory incorporation of state conditions differs in the context of nationwide permits versus individual permits. Yet no statutory language supports this claim. On the contrary, neither Section 1341(d), nor any other provision in Section 1341, draws any distinction between nationwide and individual permits.
The Corps also claimed at oral argument that its position is supported by the Ninth Circuit‘s decision in Snoqualmie. Oral Argument at 39:47–40:40. In that case, the Washington State Department of Ecology issued a water quality certification specifying
Snoqualmie meaningfully differs from the instant case because there is no dispute that Special Condition 6 and Special Condition C cannot simultaneously be satisfied. In fact, Special Condition 6 expressly contemplates that the “dry” method will take longer than the 72-hour limit prescribed by Special Condition C, and therefore Mountain Valley cannot satisfy Special Condition C while using the “dry” method. Only if Special Condition 6 had required a river-crossing time of within 72 hours could both conditions be satisfied. Indeed, the Reinstatement specifically states that the “dry” open-cut method, which cannot be achieved in 72 hours, would “otherwise be inconsistent with Special Condition C.” J.A. 245. Because the Clean Water Act mandates that Special Condition
Congress‘s express purpose in enacting the Clean Water Act—and Section 1341, in particular—as well as that provision‘s legislative history are in accord with Section 1341(d)‘s plain and unambiguous language. If adopted, the Corps’ broad interpretation of its own discretionary authority would significantly upset Congress‘s carefully prescribed allocation of authority between federal and state agencies in the Clean Water Act. The Act explicitly recognizes “[i]t is the policy of the Congress 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.”
Legislative history further emphasizes the central role Congress intended for the States to play under the regulatory scheme laid out in the Act. See S. Rep. 92–414, at 4 (1971) (“The States have first responsibility for enforcement of their standards.“); see also S. Rep. 92–414, at 69 (1971) (“In addition, [Section 401] makes clear that any water quality requirements established under State law, more stringent than those requirements established under this Act, also shall through certification become conditions on any
Of particular relevance, the Senate Report addressing the version of Section 401 ultimately enacted by Congress also specifically states that “[t]he purpose of the certification mechanism provided in [Section 1341] is to assure that Federal licensing or permitting agencies cannot override State water quality requirements.” S. Rep. 92–414, at 69 (1971) (emphasis added). Yet “overriding” state water quality requirements is precisely what the Corps seeks to do here. By substituting Special Condition 6 for Special Condition C, the Corps has essentially directed a federal agency override of West Virginia‘s state-imposed condition as part of NWP 12. Such agency action is explicitly barred by the Act.
The State certifications under Section 401 are “essential in the scheme to preserve state authority to address the broad range of pollution,” S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 386 (2006), and states remain, “under the Clean Water Act, the prime bulwark in the effort to abate water pollution.” Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991); see also Sierra Club v. State Water Control Bd., 898 F.3d 383, 390 (4th Cir. 2018) (“Under the CWA, states have the primary role in promulgating water quality standards.“) (citation omitted). Were the Corps’ construction of the Clean Water Act accepted, the Corps could, in future, replace any state condition with an alternative condition, so long as it deemed the alternative condition more environmentally
protective. We decline to sanction this level of discretionary authority that would allow the Corps, with few guardrails, to replace state-imposed conditions.Indeed, such authority would materially alter the Clean Water Act‘s balance of authority between federal agencies and the states. For example, another special condition imposed by West Virginia as part of its certification of NWP 12—Special Condition L—provides that “[n]o structure authorized by this permit shall impede or prevent fish movement upstream or downstream.” J.A. 44. Under the Corps’ theory, it would be permissible for the Corps to replace that structure prohibition with, for example, a “dry” open cut provision so long as the Corps determined the “dry” provision was, overall, more protective of water quality than the structure provision, even though those conditions appear to target substantively different environmental protection goals. Further, the state may have legitimate reasons for preferring the structure condition to the dry-cut condition, even if the dry-cut condition is more environmentally protective. For example, the state may be more concerned with preserving places for fish to spawn than preventing erosion and sedimentation.2 Put simply, the state may prefer protecting the environment in one way to protecting it in another way. But in enacting
Absent any further limiting principles, the Corps’ interpretation would radically empower it to unilaterally set aside state certification conditions as well as undermine the system of cooperative federalism upon which the Clean Water Act is premised. Further, the plain language of the Clean Water Act does not authorize the Corps to replace a state condition with a meaningfully different alternative condition, even if the Corps reasonably determines that the alternative condition is more protective of water quality. Accordingly, we vacate the July 3, 2018, Reinstatement as exceeding the Corps’ statutory authority.
B.
The Corps’ own Clean Water Act implementing regulations reinforce our conclusion that
District and division engineers have been delegated a discretionary authority to suspend, modify, or revoke authorizations under an NWP. This discretionary authority may be used by district and division engineers only to further condition or restrict the applicability of an NWP for cases where they have concerns for the aquatic environment under the Clean Water Act section 404(b)(1) Guidelines or for any factor of the public interest.
may add activity-specific conditions to ensure that the activity complies with the terms and conditions of the NWP and that the adverse impacts on the aquatic environment and other aspects of the public interest are individually and cumulatively minimal.
Although not mentioned in the Reinstatement, the Corps also relies in its briefing on
But a close reading of those regulations and the Corps’ other regulations implementing
The other regulations relied upon by the Corps similarly require that a project satisfy all terms and conditions of an NWP before obtaining “authorization” to proceed under the NWP. For instance,
Thus, a precondition for “authorization” of the Pipeline project is satisfaction of “all of the NWP‘s terms and conditions,” necessarily including state-imposed conditions like Special Condition C under
The Corps argues that such a reading of its regulations would render
The Corps further argues that this reading fails to meaningfully distinguish a “verification” from an “authorization” because “authorization” exists “even when no verification is required,” and the Corps’ “authority to impose ‘additional or revised terms or conditions’ applies to the ‘authorization,’ not to the broader Nationwide Permit or the narrower verification.” Gov‘t Br. at 23. We agree that verifications and authorizations
Here, the Pipeline project never satisfied all terms and conditions of NWP 12 because, without dispute, it cannot satisfy the time limit set forth in Special Condition C. The Pipeline project never obtained “authorization” under NWP 12, and therefore there is no “authorization” for the Corps to “modify” through “revis[ion].” To agree with the Corps would allow the Corps’ discretionary authority to permit noncompliance with an NWP condition. Such a finding would reject the plain language of the Clean Water Act, which bars the Corps from rejecting, altering, or overriding a state-imposed condition. See supra Part II.A.
We accord no deference to an agency‘s “improper interpretation of a decidedly unambiguous regulation.” Sierra Club v. United States Forest Serv., 897 F.3d 582, 602–03 (4th Cir. 2018). Therefore, Special Condition 6 cannot constitute a “further condition or restrict[ion]” under
III.
We next address Petitioners’ argument that the Verification was “not . . . in accordance with law,”
As a threshold matter, this Court must determine what legal standard it will apply—an issue neither party squarely addresses. The Corps appears to believe the deferential standard of review set forth in Chevron applies, arguing at several points that the Corps’ interpretation of Special Condition A is “reasonable,” and that Petitioners’ plain language interpretation “is permissible, [but] not compelled.” Gov‘t Br. at 35, 38, 41; see also id. at 37 (stating that the Corps’ alternative interpretation of Special Condition A is “available“). However, as stated above, Chevron applies only if an agency action “carries the force of law.” Sierra Club, 899 F.3d at 286.
The Corps argues that it lawfully relied on the State Department‘s waiver letter to conclude Special Condition A was satisfied. Its argument primarily rests on the claim that the “certification” in Special Condition A is reasonably understood as having the
However, the Corps’ argument ignores one critical aspect of the statutory language. Although
At any rate, even assuming West Virginia could waive Special Condition A, the waiver was invalid because it did not result from the notice-and-comment process contemplated by
Here, West Virginia followed its
Our decision in United States v. Smithfield Foods, Inc., 191 F.3d 516 (4th Cir. 1999), guides our ruling today. In that case, the Environmental Protection Agency (“EPA“) brought an enforcement action under the Clean Water Act against Smithfield, a pork processing and packing company. Smithfield‘s two swine slaughtering and processing plants discharged pollutants into federal waters, for which it obtained authorization by a permit from both the EPA and the relevant state regulator. Id. at 520. The state regulator subsequently modified Smithfield‘s permit, after allowing public review and comment, to apply a more restrictive provision further limiting the maximum discharge amount of a particular pollutant. Afterward, the state regulator issued several orders, without engaging in the notice-and-comment process, purportedly delaying Smithfield‘s obligation to comply with the new standard, and Smithfield failed to comply
Two aspects of the district court‘s reasoning and judgment—and this Court‘s adoption of that reasoning and judgment—are particularly relevant to the present case. First, the district court in Smithfield found that the state regulator‘s subsequent orders did not change the terms of the permit because they did not follow the “specific, mandatory procedures for modification” of the permit laid out in
Admittedly, Smithfield involved a different form of permit issued by the EPA and a distinct portion of the Act. However,
In Smithfield, we also agreed with the district court‘s ruling that Virginia‘s enforcement scheme was not sufficiently comparable to
Again, this aspect of Smithfield addressed a different provision of the Act. But our reasoning nonetheless signals the critical importance of notice-and-comment requirements throughout the Clean Water Act. Smithfield could not argue that an EPA
In sum,
IV.
Finally, the Corps and Mountain Valley argue that this Court need not vacate the Verification and Reinstatement in their entirety but should instead remand the case to the Corps to further consider whether verification is appropriate. In support of this position, the Corps and Mountain Valley rely on the D.C. Circuit‘s decision in Allied-Signal, Inc. v. U.S. Nuclear Reg. Comm‘n, 988 F.2d 146 (D.C. Cir. 1993).
This Court has never formally embraced the Allied-Signal remand-without-vacatur approach. Nevertheless, even if we were to follow Allied-Signal, that decision would not support the Corps’ and Mountain Valley‘s argument. Allied-Signal holds that in deciding whether to exercise its discretion to remand, rather than vacate, an unlawful agency action, a court should consider “the seriousness of the order‘s deficiencies (and thus the extent of doubt whether the agency chose correctly),” and whether “there is at least a serious possibility that the [agency] will be able to substantiate its decision on remand.” Allied-Signal, 988 F.2d at 150–51. Therefore, Allied-Signal‘s use of the remedy of remand without vacatur principally is relevant in matters where agencies have “inadequately supported rule[s].” Id. at 150. That is not the case here. Instead, we find that the Verification and Reinstatement‘s conclusions as to Special Conditions A and C were legally deficient, as they exceeded the Corps’ statutory authority. The Supreme Court has recognized that
Given that Special Condition C cannot be satisfied by the “dry” method, an individual permit will likely be necessary. Therefore, there is not a “serious possibility” that the agency will be able to “substantiate its decision on remand.” Allied-Signal, 988 F.2d at 151. Accordingly, we vacate the Verification and Reinstatement in their entirety.
VACATED