Sierra Club v. State Water Control Bd.

898 F.3d 383

SIERRA CLUB; Appalachian Voices; Chesapeake Climate Action Network; Wild Virginia, Petitioners,

v.STATE WATER CONTROL BOARD ; Robert Dunn, Chair of the State Water Control Board; Heather Wood, Vice-Chair of the State Water Control Board; Lou Ann Jesse-Wallace, Member of the State Water Control Board ; Timothy G. Hayes, Member of the State Water Control Board ; Roberta A. Kellam, Member of the State Water Control Board ; G. Nissa Dean, Member of the State Water Control Board ; Robert Wayland, III, Member of the State Water Control Board ; Department of Environmental Quality; David K. Paylor, Director, Department of Environmental Quality; Melanie D. Davenport, Director, Water Permitting Division, Department of Environmental Quality, Respondents,Mountain Valley Pipeline, LLC, Intervenor.

Chesapeake Bay Foundation, Inc., Amicus Supporting Petitioner.

Del. Sam Rasoul; Preserve Craig, Inc.; Doe Creek Farm, Inc. ; Georgia Haverty; Four Corners Farm, LLC ; David J. Werner; Betty B. Werner; Ian Elliott Reilly; Carolyn Elizabeth Reilly; Robert M. Jones; Donna T. Jones; Blue Ridge Environmental Defense League; Preserve Bent Mountain; Preserve Floyd; Preserve Franklin; Pittsylvania Pride, Petitioners,

v.State Water Control Board ; Robert Dunn, Chair of the State Water Control Board; Heather Wood, Vice-Chair of the State Water Control Board; Lou Ann Jesse-Wallace, Member of the State Water Control Board ; Timothy George Hayes, Member of the State Water Control Board ; Roberta A. Kellam, Member of the State Water Control Board ; G. Nissa Dean, Member of the State Water Control Board ; Robert Wayland, III, Member of the State Water Control Board ; Department of Environmental Quality; David K. Paylor, Director, Department of Environmental Quality; Melanie D. Davenport, Director, Water Permitting Division, Department of Environmental Quality, Respondents,Mountain Valley Pipeline, LLC, Intervenor.

Chesapeake Bay Foundation, Incorporated, Amicus Supporting Petitioner.

No. 17-2406

No. 17-2433

United States Court of Appeals, Fourth Circuit.

Argued: May 8, 2018

Decided: August 1, 2018

ARGUED: Benjamin Alan Luckett, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg, West Virginia, for Petitioners. Toby Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents. George Peter Sibley, III, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Joseph M. Lovett, Derek O. Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg, West Virginia, for Petitioner Sierra Club, et al. Tammy L. Belinsky, Copper Hill, Virginia, for Petitioner Del. Sam Rasoul, et al. Mark R. Herring, Attorney General, J. Duncan Pitchford, Assistant Attorney General, David C. Grandis, Assistant Attorney General, Matthew R. McGuire, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents. Kevin S. Elliker, Richmond, Virginia, Deidre G. Duncan, HUNTON ANDREWS KURTH LLP, Washington, D.C.; Christopher D. Pomeroy, Justin Curtis, AQUALAW PLC, Richmond, Virginia, for Intervenor. Jon Mueller, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for Amicus Curiae.

Before GREGORY, Chief Judge, TRAXLER, and THACKER, Circuit Judges.

Petition for review denied by published opinion. Judge Traxler wrote the opinion, in which Chief Judge Gregory and Judge Thacker joined.

TRAXLER, Circuit Judge:

Virginia certified under Section 401 of the Clean Water Act that it had reasonable assurance that certain activities regarding the construction of a natural gas pipeline would not degrade the state's water. Several environmental groups, individuals, and other entities petition for review. Concluding that Virginia's issuance of the certification was not arbitrary and capricious, we deny the petition for review.

I.

A. The Project

The Mountain Valley Pipeline Project (the "Project") is a proposed interstate natural gas transmission pipeline that will be approximately 303 miles long and 42 inches in diameter and will transport natural gas from Wetzel County, West Virginia, to Pittsylvania County, Virginia. Much of the Project crosses topography with steep slopes and areas that are susceptible to landslides. Approximately 106 miles of the pipeline will be located in Virginia, and constructing the pipeline requires 385 stream crossings and 144 wetland crossings in the Commonwealth.

Mountain Valley Pipeline, LLC ("MVP") proposes to construct and operate the pipeline in Virginia and West Virginia.¹ MVP generally would use a 125-foot-wide construction right-of-way in uplands and a 75-foot-wide right-of-way through wetlands. MVP would retain a 50-foot right-of-way permanently to operate the pipeline. For overland construction, MVP would generally need to clear the land of trees and vegetation, then dig a trench of up to nine feet in depth, fracturing and blasting rock where necessary. Waterbody crossings would be dry open-cut crossings; MVP would temporarily divert the water from the construction area and bury the pipeline two to four feet below the streambed.

B. Federal Statutes and Agencies

The Natural Gas Act ("NGA") requires that a party seeking to build or operate a natural gas pipeline must obtain authorization from the Federal Energy Regulatory Commission ("FERC") in the form of a "certificate of public convenience and necessity." The NGA and its implementing regulations set out the process for obtaining such a certificate. See 15 U.S.C. § 717 et seq. ; 18 C.F.R. § 157.1 et seq. ; see generally East Tenn. Nat. Gas. Co. v. Sage , 361 F.3d 808, 818 (4th Cir. 2004).

When FERC receives an application for a certificate of public convenience and necessity, it undertakes review of the environmental impacts of the proposed project under the NGA and under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , usually by accepting input from the public and producing an environmental impact statement ("EIS"). FERC serves as the "lead agency," coordinating the needed governmental authorizations, see 15 U.S.C. § 717n(b), including the one central to this case, Virginia's state water-quality certification under the Clean Water Act ("CWA").

NEPA sets out the procedures FERC must employ in considering the environmental impacts of agency actions. See Robertson v. Methow Valley CitizensCouncil , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Council on Environmental Quality regulations require FERC to draft an EIS in stages, first preparing a draft and inviting public comment thereon, then considering the comments and responding to them, possibly by modifying its analysis. See 40 C.F.R. §§ 1503.1(a), 1503.4(a). In this way, the draft and the receipt of comments serve as a "springboard for public comment." National Comm. for the New River, Inc. v. FERC , 373 F.3d 1323, 1328 (D.C. Cir. 2004) (internal quotation marks omitted).

Because construction of the Project would involve discharge of dredged and fill materials into wetlands and waterways, MVP needed not only a certificate of public convenience and necessity from FERC, but also approval from the U.S. Army Corps of Engineers (the "Corps") under Section 404 of the CWA. See 33 U.S.C. § 1344(a) ; AES Sparrows Point LNG, LLC v. Wilson , 589 F.3d 721, 724 (4th Cir. 2009). Section 404 approval from the Corps may come in the form of an issuance of individual permits or the Corps' verification of the coverage "within the scope of an existing general permit, which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact."

Crutchfield v. County of Hanover, Va. , 325 F.3d 211, 214 (4th Cir. 2003) (citing 33 U.S.C. § 1344(e) ; 33 C.F.R. §§ 320.1, 330.1(b)-(c) ).²

The NGA largely preempts environmental regulation of interstate natural gas pipelines by states. See AES Sparrows Point LNG, LLC v. Smith , 527 F.3d 120, 125-26 (4th Cir. 2008). However, it does "allow[ ] states to participate in environmental regulation of [pipelines] under three federal statutes: the Clean Air Act, the Coastal Zone Management Act, and the Clean Water Act." Delaware Riverkeeper Network v. Secretary Pa. Dep't of Envtl. Prot. , 833 F.3d 360, 368 (3d Cir. 2016) (citing 15 U.S.C. § 717b(d) ).

The state action challenged in the petition before us was taken pursuant to Section 401 of the Clean Water Act. The relevant language provides that "[a]ny applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters" must seek "a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions" of the CWA. 33 U.S.C. § 1341(a)(1). It provides that "[n]o license or permit shall be granted if certification has been denied by the State," but, if a state "fails or refuses to act on a request for 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." Id. (emphasis added). Under the CWA's implementing regulations, the State also has the option of granting the certification based on certain conditions. See 33 U.S.C. § 1341(d) ; 40 C.F.R. § 121.2(a)(4) ; PUD No. 1 of JeffersonCty. v. Washington Dep't of Ecology , 511 U.S. 700, 712, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). Accordingly, a state receiving a Section 401 application has four options in total: it may grant a certificate without imposing any additional conditions; grant it with additional conditions; deny it; or waive its right to participate in the process. See Delaware Riverkeeper Network , 833 F.3d at 376 (noting states' options to deny certificate or to waive right to participate); see also S.D. Warren Co. v. Maine Bd. of Envtl. Prot. , 547 U.S. 370, 380, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006) ("Section 401 ... was meant to continue the authority of the State to act to deny a...