Sierra Club v. U.S. Army Corps of Eng'rs

981 F.3d 251

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.

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. 20-2039

No. 20-2042

United States Court of Appeals, Fourth Circuit.

Argued: November 9, 2020

Decided: December 1, 2020

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.

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

Motions for stay granted by published per curiam opinion.

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 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, 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 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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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 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...