SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; WEST VIRGINIA RIVERS COALITION; WEST VIRGINIA HIGHLANDS CONSERVANCY; INDIAN CREEK WATERSHED ASSOCIATION; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK, Petitioners, v. UNITED STATES ARMY CORPS OF ENGINEERS; RYAN D. MCCARTHY, in his official capacity as Secretary of the U.S. Army; LIEUTENANT GENERAL SCOTT A. SPELLMON, in his official capacity as U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers; MAJOR GENERAL ROBERT F. WHITTLE, JR., in his official capacity as Division Commander of the U.S. Army Corps of Engineers, Great Lakes and Ohio River Division; COLONEL JASON A. EVERS, in his official capacity as District Commander of the U.S. Army Corps of Engineers, Huntington District; THERESA SPAGNA, in her official capacity as Chief, Regulatory North Branch, U.S. Army Corps of Engineers, Huntington District, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor.
No. 20-2039
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
December 1, 2020
PUBLISHED. Argued: November 9, 2020. Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges. On Petitions for Review of Actions by the U.S. Army Corps of Engineers. (LRH-2015-592-GBR; NAO-2015-08998)
SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; WILD VIRGINIA; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK, Petitioners, v. UNITED STATES ARMY CORPS OF ENGINEERS; RYAN D. MCCARTHY, in his official capacity as Secretary of the U.S. Army; LIEUTENANT GENERAL SCOTT A. SPELLMON, in his official capacity as U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers; COLONEL PATRICK V. KINSMAN, in his official capacity as District Commander of the U.S. Army Corps of Engineers, Norfolk District; WILLIAM T. WALKER, in his official capacity as Chief, Regulatory Branch, U.S. Army Corps of Engineers, Norfolk District, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor.
No. 20-2042
Motions for stay granted by published per curiam opinion.
Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Petitioners. Kevin William McArdle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. George Peter Sibley, III, HUNTON ANDREW KURTH, LLP, Richmond, Virginia, for Intervenor.
The Sierra Club, Center for Biological Diversity, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Indian Creek Watershed Association, Appalachian Voices, and Chesapeake Climate Action Network (collectively, “Petitioners“) filed the instant motions to stay certain agency actions of the United States Army
By operating under the more general NWP 12, MVP would not have to undertake the more arduous and time-consuming individual CWA permitting process tailored to specific projects. Typically, potential permittees who wish to take advantage of an NWP for a potential project typically must submit pre-construction notifications to the Army Corps for a “verification” that the project would comply with the NWP. Issuance and Reissuance of Nationwide Permits, 82 Fed. Reg. 1860, 1861, 1986 (Jan. 6, 2017).
On September 25, 2020, the Huntington District issued a verification, determining that the Pipeline project met the criteria for operation under the NWP 12, excusing the project from the individual permitting process (the “Verification“). On the same day, the Norfolk District did the same, issuing a reinstatement of its prior verification allowing MVP to use NWP 12 in that district (the “Reinstatement“). Petitioners then filed petitions for agency review of the Verification and Reinstatement pursuant to the Natural Gas Act (“NGA“),
Applying a familiar four-part test, we conclude Petitioners are likely to succeed on the merits of their petitions for review, and other equitable factors weigh in favor of granting the motions for stay. As explained more fully below, the Verification was likely issued in contravention of applicable law because the Army Corps impermissibly incorporated into NWP 12 a modified permit condition from the West Virginia Department of Environmental Protection (“WVDEP“). And because the Verification was likely issued in contravention of law, the Reinstatement (which necessarily depends on the validity of the Verification) is likely defective as well. Therefore, we grant Petitioners’ motions for a stay of the Huntington District‘s Verification and the Norfolk District‘s Reinstatement until such time as we may consider the petitions for review on their merits. We do not, however, believe Petitioners are likely to succeed on the merits of their challenges to the Army Corps’ 2017 issuance of NWP 12 itself because we likely lack jurisdiction to entertain such challenges.
I.
This is not our first look at an Army Corps verification allowing the Pipeline to use NWP 12. In 2018, we vacated a prior version of the Huntington District‘s Verification, finding it to be in contravention of applicable law. See Sierra Club v. United States Army Corps of Eng‘rs, 909 F.3d 635, 639 (4th Cir. 2018).1
The Pipeline, which is 42 inches in diameter, “proposes to run 304 miles through parts of Virginia and West Virginia, crossing the [Army] Corps’ Pittsburgh, Norfolk,
[T]he 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. Alternatively, interested parties can try to fit their proposed activity within the scope of an existing general permit, in this case NWP 12, which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact. Potential permittees must satisfy all terms and conditions of an NWP for a valid authorization to occur.
Sierra Club, 909 F.3d at 640 (citations and internal quotation marks omitted) (emphasis in original). In order to utilize NWP 12, MVP is also required to “‘provide the [Army 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.” Id. (quoting
II.
In determining whether to grant a stay of an agency action, this court considers (1) “whether the stay applicant has made a strong showing that he is likely to succeed on the merits“; (2) “whether the applicant will be irreparably injured absent a stay“; (3) “whether issuance of the stay will substantially injure the other parties interested in the proceeding“; and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (internal quotation marks omitted). In considering the likelihood of the merits inquiry, we are mindful that, pursuant to the Administrative Procedures Act (“APA“), we must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
III.
Likelihood of Success on the Merits
In these motions, Petitioners make two distinct challenges to the Verification. First, they claim the Verification is unlawful because the Army Corps violated the Endangered Species Act (“ESA“) when it reissued NWP 12 in January 2017; thus, ostensibly because the Verification relies on NWP 12, it must necessarily be arbitrary, capricious, and not in accordance with law. Second, they claim the Verification impermissibly relies on and incorporates modifications to NWP 12 that were made in contravention of applicable law. As explained below, we conclude that Petitioners are not likely to succeed on the merits of the former argument because we likely lack jurisdiction to entertain Petitioners’ challenge on this point. However,
A.
The Endangered Species Act and NWP 12
Petitioners’ first argument is that, because the Army Corps failed to engage in programmatic consultation with the United States Fish and Wildlife Service (“FWS“) before reissuing NWP 12 in January 2017, that reissuance violated the ESA. As a result, Petitioners assert that NWP 12 is invalid, and because the Army Corps relied on NWP 12 in issuing the Verification, the Verification too is fatally infected.
Petitioners have not made a “strong showing” that they are likely to succeed on the merits of this claim because this court likely lacks jurisdiction to entertain it. Nken, 556 U.S. at 426 (internal quotation marks omitted). “Because district courts have general federal question jurisdiction under
In Sierra Club, our jurisdiction to review prior Army Corps verifications derived from the NGA,
The United States Court of Appeals for the circuit in which a [natural gas] facility . . . is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency (other than the [Federal Energy Regulatory] Commission) . . . to issue, condition, or deny any permit, license, concurrence, or approval . . . required under Federal law[.]
This provision allows for a narrow exception to the general rule that district courts possess jurisdiction to review agency actions in the first instance. Petitioners contend we possess jurisdiction over their ESA argument based on this provision.
We disagree. In form, Petitioners purport to seek review only of the Verification and Reinstatement themselves, not NWP 12. See Pet. for Review, Sierra Club v. United States Army Corps of Eng‘rs, No. 20–2039 (4th Cir. filed Sept. 28, 2020), ECF. No. 3; Pet. for Review, Sierra Club v. United States Army Corps of Eng‘rs, No. 20–2042 (4th Cir. filed Sept. 28, 2020), ECF No. 3. But in substance, Petitioners are actually seeking collateral review of a separate decision -- the Army Corps Secretary‘s findings and conclusions in its reissuance of NWP 12, not the Huntington and Norfolk Divisions’ reliance on NWP 12 in issuing the Verification and Reinstatement. In so doing, Petitioners are attempting an end run around the narrow jurisdictional provisions that govern review of permits for natural gas pipeline projects. Crucially, Petitioners do not contend that they cannot pursue a challenge to NWP 12 in the district court. To the contrary, at least two of the Petitioners here -- the Sierra Club and the Center for
Throughout the briefing on the motions to stay, Petitioners steadfastly contend the Army Corps violated the ESA in its reissuance of NWP 12 by failing to engage in formal consultation and failing to “consider the cumulative impacts of NWP-authorized activities on protected species or their critical habitat.” See Pet‘rs’ Mot. Stay 7;2 see also id. at 9 (arguing the Army Corps “violated the ESA in issuing NWP 12“); id. at 9–10 (challenging the Army Corps’ finding that NWP 12 would have “no effect” on certain species pursuant to the ESA); id. at 12 (noting the “problem with relying on project-specific consultation” in an ESA no-effect determination).
These challenges are not contemplated in the NGA review provision set forth above. Section 717r(d)(1) is most logically read to allow review of permits issued pursuant to the construction, expansion, or operation of a natural gas facility (i.e., a pipeline) in the circuit court of appeals where that facility will be operated or constructed. But NWP 12 does not authorize any specific NGA project. Rather, it “governs a broad range of activities that can be undertaken anywhere in the country under a wide variety of circumstances.” Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 1058 (10th Cir. 2015).
Petitioners rely on the idea that “an exclusive judicial review provision applies to all issues inhering in the controversy.” Pet‘rs’ Reply Br. 3 (quoting Dow AgroSciences LLC v. Nat‘l Marine Fisheries Serv., 637 F.3d 259, 265 (4th Cir. 2011) (internal quotation marks omitted)). But Dow in inapplicable here. In Dow, this court decided that a Biological Opinion (“BiOp“) challenged by the petitioners was a “final agency action for which there is no other adequate remedy in a court” pursuant to the APA, and thus, properly reviewable in the district court. 637 F.3d at 265 (quoting
[W]hen a court of appeals reviews the EPA‘s reliance on a BiOp issued by [FWS], the court‘s review would not be the same as if the district court were to review the BiOp itself directly under the APA. When a court of appeals reviews the EPA‘s reliance on a BiOp, it would determine only whether the EPA‘s reliance was arbitrary and capricious. But only by direct judicial review by the district court under the APA could the BiOp‘s findings and conclusions themselves be challenged.
Id. at 266–67 (last emphasis supplied).
We cannot decide whether the Huntington District impermissibly relied on NWP 12 in issuing the Verification without first reaching Petitioners’ challenges to the findings and conclusions underlying NWP 12. And according to Dow, this type of challenge is properly reviewable in the district court -- not before us. Therefore, Petitioners are not likely to succeed on the merits of the ESA challenge to NWP 12 because we likely do not possess jurisdiction to address such a challenge.3
The Huntington Verification
Petitioners fare better, however, on the likelihood of success of their second challenge to the Verification and Reinstatement.
1.
Pursuant to the CWA, West Virginia imposed several special conditions as part of its Section 4014 certification of NWP 12 in 2017. Only one is relevant to these motions:
Special Condition A. Originally, and at the time of this court‘s prior Sierra Club decision, Special Condition A provided the following:
Individual State Water Quality Certification is required for
- Pipelines equal to, or greater than 36 inches in diameter; [or]
- Pipelines crossing a Section 10 river [subject to certain exceptions]. . . .
Sierra Club, 909 F.3d at 640–41.5 To comply with this condition, MVP applied to the WVDEP for an individual water quality certification. On March 23, 2017, the WVDEP issued a conditional certification. However, the WVDEP later vacated that certification,
explaining “the information used to issue the Section 401 Certification needs to be further evaluated and possibly enhanced.” Sierra Club, 909 F.3d at 641 (internal quotation marks omitted). On October 17, 2017, we vacated the Pipeline‘s Section 401 certification, and remanded to the WVDEP pursuant to
In Sierra Club, however, we concluded that the WVDEP was required to engage
The Secretary of the West Virginia Department of Environmental Protection, in the Secretary‘s sole discretion, reserves the right to require
Aan individual water quality certificationis requiredfor any of the following facilities or impacts:
- Pipelines equal to or greater than 36 inches in diameter; [or]
- Pipelines crossing a Section 10 river [subject to certain exceptions][.]
Pet‘rs’ Mot. Stay, Ex. 8 at 10–11 (modifications supplied). Therefore, according to this WVDEP amendment, an individual water quality certification is only required for pipelines over 36 inches in diameter (like the Pipeline) if the WVDEP Secretary believes it should be. And here, the Secretary issued a general Section 401 certification without an individual water quality certification. See id., Ex. 8 at 1–2; see also id., Ex. 7 at 26 (“On 27 February 2020, the WVDEP provided a letter in accordance with Special Condition A of the general [water quality certification] for NWP 12 stating that the WVDEP will not require an individual [water quality certification] for the MVP.“).
The WVDEP then requested the Army Corps to “incorporate this modification into its NWPs for West Virginia, in accordance with
Petitioners contend that the issuance of the Verification with the WVDEP‘s modified Special Condition A was unlawful for two reasons. First, Petitioners assert that the Army Corps Division Engineer lacks the authority to modify NWP 12, yet it did so here by incorporating the revised Special Condition A into NWP 12. Second, Petitioners argue that even if the Division Engineer did possess such authority, it abused its discretion in allowing the modification because the modified Special Condition A is less stringent (and thus, less protective of West Virginia water crossings) than the original version of Special Condition A. We conclude that Petitioners have made a strong showing they are likely to succeed on the merits of the argument that the Division Engineer lacks authority to incorporate modified Special Condition A into NWP 12.
a.
A series of interweaving statutes and regulations inform our decision. First, “[a] prospective permittee must satisfy all terms and conditions of an NWP for a valid authorization to occur.”
b.
Turning to the facts of the case at hand in relation to this permitting scheme, pursuant to its authority under Section 401 of the CWA, the WVDEP held public notice and comment and adopted the initial version of Special Condition A to provide that all pipelines with a diameter of 36 inches or more or those crossing certain Section 10 rivers must have an individual water quality certification. This special condition automatically became part of NWP 12 in West Virginia in 2017. See
c.
i.
Petitioners are likely to succeed on the merits of their challenge to the Army Corps’ incorporation of the modified Special Condition A because neither the Army Corps nor MVP has provided regulatory or statutory authority for the actions the Army Corps undertook in this case. The CWA is clear that Special Condition A (in its original form) became part of NWP 12 in West Virginia, and we made clear in Sierra Club that the WVDEP has not effectively waived this requirement. See 909 F.3d at 653. The CWA is also clear
ii.
The Army Corps and MVP contend that in some circumstances, a division engineer may add regional conditions to an NWP. They rely on the following regulation:
If, prior to the issuance or reissuance of such NWPs, a state issues a 401 water quality certification which includes special conditions the division engineer will make these special conditions regional conditions of the NWP for activities which may result in a discharge into waters of the United States in that state, unless he determines that such conditions do not comply with the provisions of
33 C.F.R. 325.4 .
iii.
Finally, we turn to regulations governing the modification of a state‘s special condition after the issuance of an NWP. After modifying Special Condition A, the WVDEP asked the Army Corps to “incorporate this modification into its NWPs for West Virginia, in accordance with
The regulation cited by the WVDEP, however, does not allow for the modification in this case. At the time the WVDEP modified Special Condition A, in April 2019, section 121.2(b) provided, “The certifying agency [i.e., the state] may modify the [Section 401] certification in such manner as may be agreed upon by the certifying agency, the licensing or permitting agency [i.e., the Corps], and the Regional Administrator.”
This change was the culmination of the EPA‘s solicitation of comments on
whether and to what extent States . . . should be able to modify a previously issued certification, either before or after the reasonable period of time expires, before or after the license or permit is issued, or to correct an aspect of a certification or its conditions
if remanded or found unlawful by a federal or State court or administrative body.
Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42210, 42279 (July 13, 2020). The agency determined, “[S]ection 401 does not provide authority for a certifying authority to unilaterally modify a certification, either through certification conditions that purport to authorize the certifying authority to reopen the certification in the future or through any other mechanism.” id. It continued, “[O]nce a certification is issued, the conditions therein are incorporated into . . . a federal license or permit[] for implementation and enforcement. Allowing certifications to be modified after issuance could create significant confusion and regulatory uncertainty within those federal license and permit programs.” id. Thus, the EPA concluded, “[S]ection 401 does not provide certifying authorities with the authority to modify certifications after they are issued.” id. at 42280 (emphasis supplied).
In rendering this decision, the EPA indicated that it was clarifying a longstanding principle, rather than breaking new ground. See 85 Fed. Reg. at 42236 (“This final rule modernizes and clarifies the EPA‘s regulations and will help States, Tribes, federal agencies, and project proponents know what is required and what to expect during a section 401 certification process, thereby reducing regulatory uncertainty.“). It noted that “[a]s a general matter, administrative agencies possess the inherent authority to reconsider prior decisions“; however, “section 401 provides express statutory language . . . that displaces the general principle and thus Congress has precluded the certifying authority from reconsidering or modifying a certification.” 85 Fed. Reg. at 42280 (emphases supplied). This “express statutory language,” upon which the EPA relies, includes CWA‘s provisions “specifying the time period in which a certifying authority must act on a certification request or waive its right to act,” see
This clarification weighs heavily in favor of Petitioners on the likelihood of success on their Special Condition A challenge. Indeed, the WVDEP and the Corps rely on this regulation for the state‘s authority to amend Special Condition A -- and, accordingly, the Corps to adopt it as part of NWP. See, e.g., Resp‘ts’ Resp. Br., Ex. F at 7 (“Pursuant to
For these reasons, we conclude the Verification was likely issued in contravention of applicable law because WVDEP likely did not possess the authority to modify Special Condition A in April of 2019, and the division engineer likely did not possess authority to rely on or incorporate this modification into NWP 12.
The Norfolk Reinstatement
Whether Petitioners are likely to succeed on the merits of the Norfolk Reinstatement rises and falls on the legitimacy of the Huntington Verification. NWP 12 contains a note (“Note 2“), which states, “Utility line activities must comply with
The Army Corps has explained that, under Note 2, “[i]f one or more crossings of waters of the United States for a proposed utility line do not qualify for authorization by NWP, then the utility line would require an individual permit because of
Therefore, because Petitioners’ challenge to the Huntington Verification is likely to succeed on the merits, its challenge to the Norfolk Reinstatement is likely to succeed on the merits as well.
IV.
Remaining Stay Factors
Finally, we conclude the balance of the stay factors -- whether Petitioners will be irreparably injured absent a stay; whether issuance of the stay will substantially injure the other parties interested in the proceeding; and where the public interest lies -- weighs in favor of granting the motions for stay. See Nken v. Holder, 556 U.S. 418, 426 (2009). Absent a stay, MVP intends to begin crossing the streams and rivers at issue. MVP submits that it “has spent billions to complete the vast majority of project tasks, including the installation of pipe along nearly 260 miles” and delay until spring 2021 would cost MVP around $140 million in unrecoverable costs. Intervenor‘s Resp. Br. 23.
But “[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). And “[t]he dredging . . . that may occur while the Court decides the case cannot be undone and, if the end result is that the Corps should not have issued [the permit], irreparable harm will have occurred in the meantime.” Sierra Club v. United States Army Corps of Eng‘rs, 399 F. Supp. 2d 1335, 1348 (M.D. Fla. 2005), vacated on other grounds, 464 F. Supp. 2d 1171, 1228 (M.D. Fla. 2006). In addition, while the Army Corps and MVP both contend natural gas projects serve the public interest, the NGA yields to the
V.
For these reasons, we grant Petitioners’ motions to stay.
20–2039 - MOTION GRANTED
20–2042 - MOTION GRANTED
Notes
Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . . If the State . . . fails or refuses to act on a request for [water quality] certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State[.]