Sierra Club v. U. S. Army Corps of Engineers ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2039
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. 20-2042
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.
On Petitions for Review of Actions by the U.S. Army Corps of Engineers. (LRH-2015-
592-GBR; NAO-2015-08998)
Argued: November 9, 2020 Decided: December 1, 2020
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
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.
2
PER CURIAM:
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 Corps of
Engineers (“Army Corps”). Specifically, Petitioners challenge decisions of two different
Army Corps districts: the Huntington, West Virginia District (“Huntington District”) and
the Norfolk, Virginia District (“Norfolk District”). Mountain Valley Pipeline, LLC
(“MVP”) asked both districts to verify that, pursuant to the Clean Water Act (“CWA”), 33
U.S.C. § 1344, MVP’s proposed discharge of dredged and/or fill material into waters of
the United States in furtherance of construction of a natural gas pipeline (“Pipeline”) in
those districts could be governed by the Army Corps’ 2017 nationwide permit (“NWP”),
referred to as NWP 12.
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
3
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”), 15 U.S.C. § 717r(d)(1), and filed the instant motions to stay.
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,
4
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, and
Huntington Districts.” Sierra Club, 909 F.3d at 639. Because construction of the Pipeline
will involve the discharge of fill material into federal waters, the CWA requires MVP to
obtain approval from the Army Corps before beginning construction. See 33 U.S.C.
§ 1344(a).
[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
1
Of note, in that opinion we suggested “an individual permit will likely be
necessary” for the Pipeline project. Sierra Club, 909 F.3d at 655. MVP maintains,
however, that it is entitled to use NWP 12 and has not attempted to seek an individual
permit.
5
state waives, either explicitly or by inaction, its right to independently certify the project.”
Id. (quoting 33 U.S.C. § 1341(a)(1)); see also 33 C.F.R. §§ 325.2(b)(1)(ii), § 330.4(c)(1).
When “a state’s certification of the general permit imposes additional ‘special conditions,’”
the Army Corps “must ‘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,’”
except in certain circumstances not present here. Id. (quoting 33 C.F.R. § 330.4(c)(2)).
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.” 5 U.S.C.
§ 706(2)(A); see Sierra Club, 909 F.3d at 643.
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
6
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, we hold that Petitioners are likely to succeed on the merits of the
latter argument.
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 28 U.S.C. § 1331, the normal default rule is that persons
seeking review of agency action go first to district court rather than to a court of appeals.”
NMS Healthcare of Hagerstown, LLC v. United States Dep’t of Health & Human Servs.,
619 F. App’x 225, 226 (4th Cir. 2015) (quoting Nat’l Mining Ass’n v. Sec’y of Labor, 763
F.3d 627, 632 (6th Cir. 2014)). “Initial review of agency decisions occurs at the appellate
7
level only when a direct-review statute specifically gives the court of appeals subject-
matter jurisdiction to directly review agency action.” Id. (quoting Nat’l Mining Ass’n, 763
F.3d at 632) (emphasis supplied). The burden of establishing subject matter jurisdiction
rests upon the party asserting it. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994).
In Sierra Club, our jurisdiction to review prior Army Corps verifications derived
from the NGA, 15 U.S.C. § 717r(d)(1), which provides:
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’
8
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 Biological Diversity -- already
brought a similar ESA challenge in the District of Montana. See N. Plains Res. Council v.
United States Army Corps of Eng’rs, 460 F. Supp. 3d 1030, 2020 WL 3638125 (D. Mont.
May 11, 2020).
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
2
Citations to the Motion to Stay, responses, and replies refer to the briefing in Case
No. 20–2039. We recognize that many of the same arguments were repeated in the briefing
in Case No. 20–2042.
9
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 5 U.S.C. § 704). First, as noted,
Petitioners do not contend their specific ESA challenges to NWP 12 are unreviewable
elsewhere. Second, in determining whether an issue “inher[es] in the controversy,” the
type of challenge matters:
[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
10
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
B.
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 401 4 certification of NWP 12 in 2017. Only one is relevant to these motions:
3
We also note that Petitioners have not demonstrated that they will suffer
irreparable harm if we decline to address their ESA claim in this venue. In fact, as
mentioned, some Petitioners have already brought an ESA challenge to NWP 12 in the
District of Montana, and they were successful there, although the Supreme Court limited
the scope of the district court’s decision to pertain only to the Keystone XL Pipeline. See
N. Plains, 2020 WL 3638125, at *14 (“NWP 12 is vacated as it relates to the construction
of new oil and gas pipelines pending completion of the consultation process and
compliance with all environmental statutes and regulations.”), stay issued, 2020 WL
3637662 (U.S. July 6, 2020) (“The district court’s May 11, 2020 order granting partial
vacatur and an injunction is stayed, except as it applies to the Keystone XL pipeline[.]”).
Interestingly, only after this stay order did Petitioners attempt to bring their ESA claim in
this court.
4
A state water quality certification is also referred to as a “Section 401”
certification, in reference to Section 401 of the CWA. In relevant part, Section 401
provides:
Any applicant for a Federal license or permit to conduct any
activity including, but not limited to, the construction or
11
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
i. Pipelines equal to, or greater than 36 inches in diameter;
[or]
ii. 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,
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[.]
33 U.S.C. § 1341(a)(1).
5
A “Section 10 river” is a “navigable-in-fact river[] regulated by Section 10 of the
Rivers and Harbors Act of 1899.” Sierra Club, 909 F.3d at 639 (citing 33 U.S.C. § 403).
The Rivers and Harbors Act was “intended to prevent obstructions in the Nation’s
waterways.” Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201 (1967). The
Pipeline proposes to run through three Section 10 rivers: the Elk, Gauley, and Greenbrier.
See Sierra Club, 909 F.3d at 639. It is undisputed that the Pipeline is greater than 36 inches
in diameter.
12
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 15 U.S.C. § 717r(d)(3). See id. On remand, the
WVDEP “purported to waive its requirement that [MVP] obtain an Individual 401 Water
Quality Certification.” Id.
In Sierra Club, however, we concluded that the WVDEP was required to engage in
proper notice and comment procedures before it could waive the Section 401 requirement
set forth in Special Condition A. See 909 F.3d at 651–55. Upon our vacatur of the prior
Huntington District verification for this reason, the WVDEP -- rather than waive the
Section 401 certification -- decided to modify Special Condition A. After a notice and
comment procedure (which Petitioners do not challenge), on April 24, 2019, the WVDEP
revised Special Condition A as follows:
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 certification is required for any of the following
facilities or impacts:
i. Pipelines equal to or greater than 36 inches in diameter;
[or]
ii. 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
13
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 40 C.F.R. § 121.2(b).” Pet’rs’ Mot. Stay,
Ex. 8 at 1. On January 15, 2020, the Division Engineer for the Corps’ Great Lakes and
Ohio River Division purported to grant the WVDEP’s request to modify Special Condition
A and “incorporated [it] as [a] regional condition[]” to NWP 12. Id., Ex. 12 at 1.
Thereafter, on September 25, 2020, the Huntington District issued the Verification,
memorializing the modification of Special Condition A into NWP 12. Id., Ex. 7 at 26
(noting the WVDEP’s modified condition). 6
6
The Army Corps and MVP contend that we lack jurisdiction over this challenge
as well. We disagree. The precise Special Condition A challenges to the Verification and
Reinstatement fit neatly within the NGA’s jurisdictional provision, 15 U.S.C. § 717r(d)(1).
The Verification and Reinstatement are both actions of federal agencies; they approve
stream crossings in Virginia and West Virginia, as required by the CWA; and they are each
decisions approving permits in furtherance of construction of a natural gas pipeline facility.
In an attempt to eschew the NGA’s judicial review provisions, the Army Corps maintains
“[t]he Corps’ acceptance of West Virginia’s revised conditions is not, as Petitioners
assume, equivalent to the Corps’ substitution of its own condition for the State’s condition,
which was the issue in Sierra Club.” Resp’ts’ Resp. Br. 19 (emphasis omitted); see also
id. at 16 (characterizing Petitioners’ argument as a “challenge to the Corps’ acceptance of
West Virginia’s revised Section 401 certification” (emphasis supplied)). But these
characterizations are inaccurate. Petitioners seek review not merely of the Army Corps’
“acceptance” of WVDEP’s modified Special Condition A; rather, they contend the Army
Corps’ reliance on and incorporation of the modified condition into NWP 12 by way of the
14
2.
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.” 33 C.F.R. § 330.4(a) (emphasis supplied). Second, the CWA
authorizes the Secretary of the Army, acting through the Army Corps’ “Chief of
Engineers,” to issue, revoke, or modify NWPs. 33 U.S.C. § 1344(d)–(e). Third, a Section
Verification was improper under the CWA and its regulations. This is a similar challenge
to the one we addressed in Sierra Club. See 909 F.3d at 651–53 (assuming jurisdiction
over “Petitioners’ argument that the Verification was not in accordance with law” because
West Virginia could not waive Special Condition A without proper procedure, once that
condition had been incorporated into NWP 12 (alterations and internal quotation marks
omitted)).
15
401 certification -- or a waiver thereof -- is “required” from a state “prior to the issuance
or reissuance of NWPs authorizing [discharge] activities.” 33 C.F.R. § 330.4(c)(1). And
if a state chooses to add a special condition to the use of an NWP within its borders, it may
do so, and such special condition “shall become” a condition of the NWP. 33 U.S.C.
§ 1341(d).
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 33 U.S.C. § 1341(d). Then, in
ensuing litigation over the Pipeline, the WVDEP attempted to walk back this special
condition, purporting to waive Section 401 certification altogether. See Sierra Club, 909
F.3d at 652–53. When this court concluded the WVDEP did not effectively waive Special
Condition A pursuant to CWA statutes and regulations, the WVDEP modified Special
Condition A such that the Secretary of the WVDEP can now decide on a case-by-case basis
whether to require an individual water quality certification for pipelines over 36 inches in
diameter and/or those crossing Section 10 rivers. The Verification incorporated the
modified Special Condition A into the requirements for NWP 12.
16
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 that only a Chief Engineer can issue, modify, or revoke an NWP. And here, it is
undisputed that the Chief Engineer did not do so. It is also undisputed that, at this time,
the WVDEP has yet to issue an individual water quality certification for the Pipeline.
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.
33 C.F.R. § 330.4(c)(2) (emphasis supplied). However, the Army Corps and MVP ignore
an important distinction between the effect of a state’s adoption of a special condition
before the issuance of an NWP, as opposed to a state’s attempt to modify or issue a special
condition subsequent to the issuance of an NWP. In fact, MVP conveniently omits this
17
part of the regulation from its response brief. See Intervenor’s Resp. Br. 16. By the plain
language of this regulation, the division engineer will make special conditions issued prior
to the NWP permitting process regional conditions of the NWP, but the regulation plainly
does not allow a division engineer to do so where a state has modified a special condition
after the issuance of NWP 12.
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 40 C.F.R. § 121.2(b).” Pet’rs’ Mot. Stay, Ex. 8 at 1 (emphasis
supplied); see id., Ex. 7 at 26 (“[T]he WVDEP modified its general Section 401
[certification] for the 2017 NWPs in accordance with 40 CFR § 121.2(b).”). And the
division engineer purported to grant WVDEP’s request to modify Special Condition A.
See id., Ex. 12 at 1.
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.” 40 C.F.R.
§ 121.2(b) (effective until Sept. 10, 2020). But on September 11, 2020, the Environmental
Protection Agency (“EPA”) amended this regulation to remove any mention of
modification of conditions. Thus, now it merely states, “Certification is required for any
18
license or permit that authorizes an activity that may result in a discharge.” Id. (effective
Sept. 11, 2020).
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
19
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 33 U.S.C. § 1341(a)(1), and “requiring certification
conditions to be incorporated into a separate federal permit,” see id. § 1341(d). Id.
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 40
CFR § 121.2(b), the certifying agency has the authority to modify a [water quality
certification].”); see also id. at 8 (“EPA regulations provide for modification of state
certifications ‘as agreed upon’ by the state, the permitting agency, and EPA” (quoting 40
CFR 121.2(b)); id. at 11 (“Under 40 CFR 121.2(b), the state has authority to make
subsequent modifications [to the Section 401 certificate].”). But by this clarification from
the EPA, the WVDEP did not (and does not) possess such authority. 7
7
To be clear, for purposes of these motions, we do not pass on the legitimacy of this
regulation, as no party has challenged the EPA’s promulgation of it. Nor do we believe
20
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.
C.
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 33 C.F.R. 330.6(d).”
Issuance and Reissuance of Nationwide Permits, 82 Fed. Reg. 1860, 1986 (Jan. 6, 2017).
In turn, 33 C.F.R. § 330.6(d) states, “[P]ortions of a larger project may proceed under the
authority of the NWPs while the [division engineer] evaluates an individual permit
application for other portions of the same project, but only if the portions of the project
qualifying for NWP authorization would have independent utility and are able to function
or meet their purpose independent of the total project.” (emphasis supplied).
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 33 C.F.R.
the change in regulation evinces anything but the EPA’s clarification of how state
modifications should have operated all along.
21
330.6(d).” 82 Fed. Reg. at 1888. It further stated that Note 2’s purpose was “to ensure that
utility lines with one or more crossings that do not qualify for NWP authorization are
evaluated under the individual permit process.” Id. Therefore, the Army Corps
contemplated that if one pipeline crossing does not qualify for NWP, the entire pipeline
would be subject to the individual permitting process. See Sierra Club v. United States
Army Corps of Eng’rs, 905 F.3d 285 (4th Cir. Oct. 2, 2018) (per curiam) (order vacating
prior Huntington verification, explaining that if any part of a project requires an individual
permit, then “the NWP does not apply and all portions of the project must be evaluated as
part of the individual permit process” (internal quotation marks omitted)).
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.
22
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 CWA. 15 U.S.C. § 717b(d) (explaining “nothing
in this chapter affects the rights of States under [the CWA]”). Therefore, the balance of
the four stay factors weigh in favor of Petitioners.
V.
For these reasons, we grant Petitioners’ motions to stay.
20–2039 - MOTION GRANTED
20–2042 - MOTION GRANTED
23