Sierra Club v. U.S. Dep't of the Interior

899 F.3d 260

SIERRA CLUB; Virginia Wilderness Committee, Petitioners,

v.UNITED STATES DEPARTMENT OF THE INTERIOR; National Park Service, an agency of the U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the Department of the Interior; Michael T. Reynolds, in his official capacity as Deputy Director, Operations, Exercising the Authority of Director; Stan Austin, in his official capacity as Southeast Regional Director, Responsible Official, Respondents,Atlantic Coast Pipeline, LLC, Intervenor.

Defenders of Wildlife; Sierra Club; Virginia Wilderness Committee, Petitioners,

v.United States Department of the Interior; Fish and Wildlife Service, an agency of the U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the Department of the Interior; Greg Sheehan, in his official capacity as Principal Deputy Director; Cindy Schulz, in her official capacity as Field Supervisor, Virginia Ecological Services, Responsible Official, Respondents,Atlantic Coast Pipeline, LLC, Intervenor.

No. 18-1082

No. 18-1083

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2018

Decided: August 6, 2018

ARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, Asheville, North Carolina, for Petitioners. Avi Kupfer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Brooks Meredith Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Petitioners. Eric Grant, Deputy Assistant Attorney General, Andrew Mergen, J. David Gunter II, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Andrew Tittler, S. Amanda Bossie, Office of the Solicitor, DEPARTMENT OF THE INTERIOR, Washington, D.C., for Respondents. Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.

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

Vacated by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.

GREGORY, Chief Judge:

These consolidated cases present two challenges to agency actions that provided necessary approvals for the Atlantic Coast Pipeline (ACP). The challenges were brought by Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee (collectively, "Petitioners"). For the reasons that follow, we conclude that both agency decisions are arbitrary and capricious.

The first petition, No. 18-1083, concerns the U.S. Fish and Wildlife Service (FWS). Pursuant to the Endangered Species Act, FWS issued an Incidental Take Statement (ITS) authorizing the pipeline to "take"—i.e., kill, harm, or harass—five species that are listed as threatened or endangered. Petitioners challenged the ITS as arbitrary and capricious under § 706 of the Administrative Procedure Act (APA) because the amount of take authorized in the ITS (known as the "take limit") cannot be enforced. Petitioners identify two flaws that make the take limits unenforceable: first, FWS failed to set numeric limits on take of the five threatened and endangered species, and second, FWS failed to comply with the requirements for using habitat as a surrogate for a numeric limit. Although FWS is not required to set a numeric limit, it can only use a habitat surrogate if it demonstrates a causal link between the species and the delineated habitat, shows that setting a numerical limit is not practical, and sets a clear standard for determining when incidental take is exceeded. Here, FWS failed some or all of these requirements for all five challenged species. As such, FWS's take limits are not enforceable and therefore arbitrary and capricious.

The second petition, No. 18-1082, concerns the U.S. National Park Service (NPS). The pipeline's proposed route intersects the Blue Ridge Parkway, a unit of the National Park System managed by NPS. Invoking the Blue Ridge Parkway Organic Act, NPS issued a right-of-way permit allowing the pipeline to drill and pass underneath the Parkway surface. The pipeline will also carve a path through a nearby forest, affecting views from the Parkway's scenic overlooks. Petitioners Sierra Club and the Virginia Wilderness Committee argue that NPS lacked the authority to grant a right-of-way to a gas pipeline and that doing so violated the statutory mandate that agency decisions not be inconsistent with the Parkway's conservation purpose. As detailed below, we assume for purposes of this case that NPS has the requisite statutory authority but because NPS does not explain how the pipeline crossing is not inconsistent with the purposes of the Parkway and the overall National Park System, the permit decision is arbitrary and capricious.

Part I of this opinion will provide a brief background and address a statute of limitations question common to both cases. Part II will provide the relevant background facts and legal analysis for No. 18-1083 (FWS), while Part III will provide the relevant background facts and legal analysis for No. 18-1082 (NPS). Finally, having concluded that the respective agencies erred, Part IV will address a question of remedy common to both cases.

I.

A.

The ACP is a 600-mile pipeline designed to transport natural gas from Harrison County, West Virginia, to the eastern portions of Virginia and North Carolina. J.A. 234. Constructing the pipeline would generally require a 125-foot right-of-way for most of the distance, which will disturb 11,776 acres of land. J.A. 553. Once completed, ACP would generally maintain a 50-foot permanent right-of-way along the length of the pipeline. J.A. 325.

Under the Natural Gas Act, the Federal Energy Regulatory Commission (FERC) is the agency responsible for giving final approval, in the form of a certificate of public convenience and necessity, for the construction of natural gas pipelines. 15 U.S.C. § 717f. The Natural Gas Act also requires applicants such as ACP to obtain "any permits, special use authorizations, certifications, opinions, or other approvals as may be required under Federal law." N.Y. Dep't of Envtl. Conservation v. FERC , 884 F.3d 450, 452–53 (2d Cir. 2018). FERC serves as the "lead agency" responsible for "coordinating all applicable Federal authorizations." 15 U.S.C. § 717n.

On October 13, 2017, FERC issued ACP a certificate of public convenience and necessity that authorized the construction and operation of the pipeline. J.A. 234–389. As it has done in other cases, FERC conditioned its approval of the pipeline on ACP receiving all "state and other federal authorizations required for the proposed project." Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot. , 833 F.3d 360, 368 & n.5 (3d Cir. 2016) ; see J.A. 362–84 (listing conditions ACP must satisfy). Two of these authorizations must come from FWS and NPS. On October 16, 2017, FWS issued a biological opinion and incidental take statement that authorized the pipeline to take several endangered and threatened species. On December 12, 2017, NPS issued a right-of-way permit authorizing the pipeline to cross the Blue Ridge Parkway. Petitioners challenged both agency actions in this Court on January 19, 2018.

B.

The first question we must resolve is whether the Petitioners filed their challenges within the applicable statute of limitations. Federal Rule of Appellate Procedure 15(a) provides that "[r]eview of an agency order is commenced by filing, within the time prescribed by law , a petition for review[.]" Fed. R. App. P. 15(a)(1) (emphasis added).

The Petitioners filed their challenges within 95 days (No. 18-1083) and 38 days (No. 18-1082) of the agency decisions, respectively. In their opening brief, Petitioners invoked the six-year statute of limitation created for claims "against the United States," which applies generally to challenges brought under the APA. See 28 U.S.C. § 2401(a) ; Jersey Heights Neighborhood Ass'n v. Glendening , 174 F.3d 180, 186 (4th Cir. 1999) (applying § 2401(a) to APA challenges).

ACP argues that these challenges were actually brought under the Natural Gas Act, 15 U.S.C. § 717r(d)(1), which lacks a statute of limitations. Thus, ACP urges us to adopt the most closely analogous state law statute of limitations. ACP Resp. Br. 18–27 (citing Reed v. United Transp. Union , 488 U.S. 319, 323–24, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989) ; Agency Holding Corp. v. Malley-Duff & Assocs., Inc. , 483 U.S. 143, 147, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) ; DelCostello v. Int'l Bhd. of Teamsters , 462 U.S. 151, 158–59, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) ). ACP proposes the 30-day limitations period applicable to petitions for review of state agency actions in West Virginia, Virginia, and North Carolina (the states through which the pipeline will be built). Such a short statute of limitations period, ACP argues, would comply with Congress's intent to create an expedited review process for agency decisions related to natural gas pipelines.

The problem with ACP's argument is that the cases on which it relies predate Congress's establishment of a four-year default statute of limitations for any "civil action arising under an Act of Congress enacted after" December 1, 1990. Judicial Improvements Act of 1990, Pub. L. No. 101–650, § 313, 104 Stat 5089, 5114–15 (codified at 28 U.S.C. § 1658(a) ). This four-year default provision applies to any claim "made possible by a post-1990 enactment." Jones v. R.R. Donnelley & Sons Co. , 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). Congress specifically enacted § 1658(a) to "alleviat[e] the uncertainty inherent in the practice of borrowing state statutes of limitations." Id.

As Petitioners point out, Congress added 15 U.S.C. § 717r(d) in 2005. Energy Policy Act of 2005, Pub. L. No. 109-58, § 313(b), 119 Stat 594, 689–90. If § 717r(d) is the source of Petitioners' cause of action, then § 1658(a) applies and...