Sierra Club v. State Water Control Board , 898 F.3d 383 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2406
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.
No. 17-2433
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.
On Petition for Review of a Decision of the Virginia Department of Environmental
Quality. (FERC Docket No. CP16-10-000)
Argued: May 8, 2018 Decided: August 1, 2018
2
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.
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.
3
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
1
Equitrans, L.P. also applied to construct and operate a portion of the
pipeline that would provide service from western Pennsylvania and interconnect with the
Project in Wetzel County, West Virginia. That portion of the pipeline is not a subject of
the petition for review before us.
4
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 Citizens
5
Council, 490 U.S. 332, 350 (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
2
“Activities falling within the scope of [a nationwide permit] are
automatically authorized without any individualized inquiry, although preconstruction
notification of the Corps is required in some cases.” Crutchfield v. County of Hanover,
Va., 325 F.3d 211, 214 (4th Cir. 2003) (citing 33 C.F.R. § 330.1(e)). “In cases where
preconstruction notification is required, the Corps will verify the applicability of the
(Continued)
6
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 Jefferson
[nationwide permit] to the proposed activity.” Id. at 214-15 (citing 33 C.F.R.
§ 330.1(e)(2)).
7
Cty. v. Washington Dep’t of Ecology, 511 U.S. 700, 712 (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 (2006) (“Section
401 . . . was meant to continue the authority of the State to act to deny a permit and
thereby prevent a Federal license or permit from issuing to a discharge source within such
State.” (alterations and internal quotation marks omitted)). If the state grants the
certificate – whether with or without conditions – the certification must contain “[a]
statement that there is a reasonable assurance that the activity will be conducted in a
manner which will not violate applicable water quality standards.” 40 C.F.R.
§ 121.2(a)(3) (emphasis added); see PUD No. 1 of Jefferson Cty., 511 U.S. at 712.
As for appellate review of such a state certificate, § 717r of the NGA provides:
The United States Court of Appeals for the circuit in which a facility
subject to . . . [15 U.S.C. § 717f] 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 . . . State administrative
agency acting pursuant to Federal law to issue, condition, or deny any
permit, license, concurrence, or approval . . . required under Federal law.
15 U.S.C. § 717r(d)(1). It is undisputed here that the Project is subject to 15 U.S.C.
§ 717f.
C. Virginia Agencies and Virginia Law Regarding Issuance of Section 401
Certificates
8
Under Virginia law, the State Water Control Board (the “Board”) possesses broad
authority concerning permitting and regulatory matters that affect water quality in
Virginia, including authority over Section 401 certifications. See Va. Code § 62.1-44.15.
During the events in question, Virginia law provided that, “[i]ssuance of a Virginia Water
Protection Permit shall constitute the certification required under § 401 of the Clean
Water Act.” Va. Code § 62.1-44.15:20(D). 3 Pursuant to the Virginia Water Protection
Program (the “VWP Program”), the Board, after consulting with appropriate agencies
and accepting and considering public comment, may issue a VWP permit “if it has
determined that the proposed activity is consistent with the provisions of the Clean Water
Act and the State Water Control Law and will protect instream beneficial uses.” Va.
Code § 62.1-44.15:20(B). And the Board may certify a nationwide Corps permit as
3
On March 30, 2018, the Virginia legislature amended the statute, adding the
emphasized language:
Issuance of a Virginia Water Protection Permit shall constitute the
certification required under § 401 of the Clean Water Act, except for any
applicant to the Federal Energy Regulatory Commission for a certificate of
public convenience and necessity pursuant to § 7c of the federal Natural
Gas Act (15 U.S.C. § 717f(c)) to construct any natural gas transmission
pipeline greater than 36 inches inside diameter, in which case issuance of a
Virginia Water Protection Permit pursuant to this article and a
certification issued pursuant to Article 2.6 (§ 62.1–44.15:80 et seq.) shall
together constitute the certification required under § 401 of the federal
Clean Water Act.
Natural Gas—Pipes and Pipelines—Construction, 2018 Virginia Laws Ch. 636 (S.B.
950).
9
meeting these requirements so long as the permit meets specified criteria. 4 See 9 Va.
Admin. Code 25-210-130(H).
The Virginia Department of Environmental Quality (“DEQ”) serves as the Board’s
staff, and the Board may assign DEQ tasks and delegate DEQ the authority to make
decisions. See Va. Code § 62.1-44.14. We will refer to the Board and DEQ together as
“the State Agencies.”
D. 2017 Guidance Document
Until recently, it was only through the above-described process that DEQ issued
its water-quality certificates for linear utility projects, including pipeline projects.
However, in May 2017, as a result of comments from interested parties concerning the
4
Those criteria are met when the nationwide certificate and certification
conditions:
1. Require that wetland or stream impacts be avoided and minimized to
the maximum extent practicable;
2. Prohibit impacts that cause or contribute to a significant impairment
of state waters or fish and wildlife resources;
3. Require compensatory mitigation sufficient to achieve no net loss of
existing wetland acreage and functions or stream functions and water
quality benefits; and
4. Require that compensatory mitigation for unavoidable wetland
impacts be provided in accordance with 9 [Va. Admin. Code] § 25-210-
116.
5. Require that compensatory mitigation for unavoidable stream
impacts be provided in accordance with 9 [Va. Admin. Code] § 25-210-
116, including but not limited to an analysis of stream impacts utilizing a
stream impact assessment methodology approved by the board.
9 Va. Admin. Code § 25-210-130(H).
10
Project, DEQ came to the conclusion that there was an analytical gap in the Rule 401
certification process. Namely, while VWP Permit coverage addresses the impacts caused
to wetlands and streams by activities conducted in wetlands and streams, see Ohio Valley
Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 194 (4th Cir. 2009), it does not account
for activities occurring in upland areas that could also result in discharges into state
waters or otherwise affect Virginia’s water quality. See J.A. 100 (“The permits issued by
the VWP program and the permits issued by the Corps only address the impacts caused to
wetlands and streams by excavating in a wetland, draining or significantly altering
wetland acreage or function, filling or dumping in a stream or wetland, or permanently
flooding or impounding a wetland area or stream. However, the conditions and
requirements of these permits do not cover activities in upland areas, outside of wetlands
and streams, which may result in a discharge to state waters or otherwise cause or
contribute to an exceedance of Virginia’s Water Quality Standards.”).
In recognition of this gap, DEQ recently issued its “2017 Guidance Document,”
establishing a process by which, as part of the 401 certification process, DEQ can review
these potential effects from upland activities involved in a natural gas infrastructure
project. See Va. Dep’t of Envtl. Quality, Guidance Memo No. GM17-2003, Interstate
Natural Gas Infrastructure Projects – Procedures for Evaluating and Developing
Additional Conditions for Section 401 Water Quality Certification Pursuant to 33 USC
§ 1341 (May 19, 2017). It provides that DEQ may decide to seek additional information
from pipeline applicants concerning upland activity that “may have the potential to affect
water quality.” Id. at 3. And it states that DEQ may recommend to the Board the
11
imposition of conditions on upland activities that are in addition to the conditions already
imposed by or through the VWP Permit Program, the Corps, or FERC. See id.E. Virginia’s Water Quality Standards and Water-Protection Laws
“Under the CWA, states have the primary role in promulgating water quality
standards.” Piney Run Preservation Ass’n v. County Comm’rs of Carroll Cty., 268 F.3d
255, 265 n.9 (4th Cir. 2001). To do so, a state begins by identifying the uses for which
the water will be protected; then, the state determines the level of water quality needed to
protect the water for those uses. See NRDC v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993).
Two aspects of Virginia’s water-quality policy are relevant here: its general narrative
water-quality criterion and its antidegradation policy.
Virginia’s water-quality criterion requires that “State waters . . . shall be free from
substances attributable to . . . waste in concentrations, amounts, or combinations which
contravene established standards or interfere directly or indirectly with designated uses of
such water or which are inimical or harmful to human, animal, plant, or aquatic life.” 9
Va. Admin. Code § 25-260-20(A). The criteria specify that any substance “that
produce[s] . . . turbidity” is a substance to be controlled. Id. “Turbidity” refers to a
measure of suspended solids in a water body, such as sediment.
By its terms, Virginia’s antidegradation policy “shall be applied whenever any
activity is proposed that has the potential to affect existing surface water quality.” 5 9 Va.
5As the Supreme Court explained in PUD No. 1 of Jefferson County:
(Continued)
12
Admin. Code § 25-260-30(A). The policy divides the state’s waters into three tiers and
provides different levels of protection for each tier. See 9 Va. Admin. Code § 25-260-
30(A). Tier 3 encompasses waters designated as “exceptional”; these waters “shall be
maintained and protected to prevent permanent or long-term degradation or impairment.”
9 Va. Admin. Code § 25-260-30(A)(3)(b)(1). The policy specifically provides that “[n]o
new, additional, or increased discharge of sewage, industrial wastes or other pollution
into [Tier 3 waters] shall be allowed.” 9 Va. Admin. Code § 25-260-30(A)(3)(b)(2).
However, “[a]ctivities causing temporary sources of pollution may be allowed in [Tier 3
waters] even if degradation may be expected to temporarily occur provided that after a
minimal period of time the waters are returned or restored to conditions equal to or better
than those existing just prior to the temporary source of pollution.” 9 Va. Admin. Code §
25-260-30(A)(3)(b)(3).
Tier 2 encompasses waters that “exceed water quality standards.” 9 Va. Admin.
Code § 25-260-30(A)(2). The quality of such waters “shall be maintained and protected
When the Clean Water Act was enacted in 1972, the water quality standards
of all 50 States had antidegradation provisions. These provisions were
required by federal law. By providing in 1972 that existing state water
quality standards would remain in force until revised, the Clean Water Act
ensured that the States would continue their antidegradation programs.
EPA has consistently required that revised state standards incorporate an
antidegradation policy. And, in 1987, Congress explicitly recognized the
existence of an “antidegradation policy established under [§ 303].” §
1313(d)(4)(B).
PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700, 718 (1994)
(citations omitted).
13
unless the board finds . . . that allowing lower water quality is necessary to accommodate
important economic or social development in the area in which the waters are located.” 9
Va. Admin. Code § 25-260-30(A)(2).
Finally, Tier 1 encompasses all waters that do not qualify as Tier 3 or Tier 2. For
those waters, “existing instream water uses and the level of water quality necessary to
protect the existing uses shall be maintained and protected.” 9 Va. Admin. Code § 25-
260-30(A)(1).
Virginia generally protects its water from impacts from upland construction-
related activities through the National Pollutant Discharge Elimination System
(“NPDES”) permits issued by Virginia under CWA section 402. See 33 U.S.C. § 1342.
In particular, it utilizes its Virginia Pollutant Discharge Elimination System (“VPDES”)
Program and, more specifically, its General VPDES Permit for Discharges of Stormwater
from Construction Activities (the “Construction General Permit”). 9 Va. Admin. Code
§ 25-880-70 Part II. That permit, in turn, incorporates the requirements of two other state
laws, the Virginia Stormwater Management (“VSM”) Law, Va. Code § 62.1-44.15:24 et
seq., and the Virginia Erosion and Sediment Control (“VESC”) Law, Va. Code § 62.1-
44.15:51, et seq., which we will discuss in more detail ahead.
Virginia’s regulatory scheme is a little different when the construction project in
question is a natural gas pipeline. That is because the CWA exempts natural gas pipeline
construction projects from regulation. See 33 U.S.C. § 1342(l)(2). Still, Virginia is able
to impose the same substantive requirements on natural gas pipeline projects through its
Annual Standards and Specifications (“AS&S”) Program. See Va. Code § 62.1-
14
44.15:55(D). That program requires the project developer to submit annual standards and
specifications for DEQ’s review and approval, thereby ensuring that projects will meet
the same requirements that would apply were they covered by the Virginia Construction
General Permit. See 9 Va. Admin. Code § 25-870-170(A). However, once DEQ has
approved a developer’s annual standards and specifications as satisfying the requirements
of the VSM and VESC, the entity generally need not submit site-specific VSM and
VESC plans to DEQ for approval. See Va. Code § 62.1-44.15:55(D). In this way,
projects become more self-regulating.
II.
MVP filed its application for a certificate of public convenience and necessity with
FERC on October 23, 2015.
A. FERC
As the NGA required, see 15 U.S.C. § 717n(b), FERC acted as the lead agency in
preparing an EIS for the Project. FERC first issued a draft EIS in September 2016. Then
during the 90-day period that followed, FERC conducted seven public meetings and
received 1,237 written comments (many of which were from DEQ). Some of DEQ’s
suggestions included adjusting the Project route, requiring a revised Karst Mitigation
Plan, creating an Acid Soil Mitigation Plan, revising the Blasting Plan, and adopting
various measures to reduce erosion and the introduction of sediment into the water.
FERC’s final EIS, issued in June 2017, incorporated many of the suggestions DEQ had
offered.
15
The EIS recognized that many aspects of the Project created the potential to
negatively impact affected waters. With regard to upland construction activities, the EIS
observed:
The clearing and grading of stream banks could expose soil to
erosional forces and would reduce riparian vegetation along the cleared
section of the waterbody. The use of heavy equipment for construction
could cause compaction of near-surface soils, an effect that could result in
increased runoff into surface waters in the immediate vicinity of the
proposed construction right-of-way. Increased surface runoff could
transport sediment into surface waters, resulting in increased turbidity
levels and increased sedimentation rates in the receiving waterbody.
Disturbances to stream channels and stream banks could also increase the
likelihood of scour after construction.
J.A. 771. The EIS stated that “[i]n order to limit impacts on riparian zones, the
Applicants would follow measures outlined in its Procedures.” 6 J.A. 771.
The EIS also recognized that flooding during construction was a potential concern.
The EIS stated:
To minimize or prevent impacts resulting from flash flooding during
construction, the Applicants would remove any equipment or loose material
from the affected area prior to any anticipated significant rain event.
Additionally, the Applicants would implement erosion and sedimentation
6
The EIS explained:
These measures allow a riparian strip at least 25 feet wide to permanently
revegetate with native plant species across the entire construction right-of-
way. A corridor centered on the pipeline and up to 10 feet wide may be
cleared at a frequency necessary to maintain the 10-foot corridor in an
herbaceous state; and trees that are located within 15 feet of the pipeline
may be cut and removed from the permanent right-of-way. In addition, the
riparian areas that are between HDD entry and exit point are not cleared
during construction or mowed during operations.
J.A. 771.
16
control measures, such as installing trench breakers and water bars to
inhibit water flow along the trench and right-of-way. Upon completion of
construction, the Applicants would restore the ground surface as closely as
practicable to original contours and re-establish vegetation to facilitate
restoration of pre-construction overland flow.
J.A. 772. In the end, however, regarding construction of the Project that implementation
of the various recommendations FERC had made and the plans MVP had agreed to
follow, the EIS concluded:
No long-term or significant impacts on surface waters are anticipated
as a result of the projects, because Mountain Valley and Equitrans would
not permanently affect the designated water uses, they would bury the
pipeline beneath the bed of all waterbodies, implement erosion and
sedimentation controls, adhere to crossing guidelines in their Procedures,
and restore the streambanks and streambed contours as close as practical to
pre-construction conditions. Temporary impacts would be avoided or
minimized through the implementation of our recommendations . . . and
various plans.
J.A. 775.
In October 2017, FERC issued a certificate of public convenience and necessity
for the construction of the Project. The certificate includes 37 “Environmental
Conditions,” many of which reflect DEQ’s input. 7 FERC noted that MVP “committed to
use specialized construction techniques on steep slopes, including cut-and-fill and two-
tone grading, to minimize adverse effects.” J.A. 558. FERC also noted that MVP had
developed a Landslide Mitigation Plan and FERC required that MVP revise the plan “to
outline construction measures to be used when crossing steep slopes at angles
7
FERC’s issuance of the certificate is the subject of a petition for review
pending in the Court of Appeals for the D.C. Circuit. FERC’s issuance of the certificate
is not a subject of the petition before us.
17
perpendicular to contours and to include a more robust monitoring program.” J.A. 558.
As for the concern that “slope failures will cause instream sedimentation,” FERC also
noted that MVP had “agreed to follow the measures outlined in [FERC’s] Upland
Erosion Control, Revegetation, and Maintenance Plan . . . and its Wetland and
Waterbody Construction and Mitigation Procedures, which include erosion controls to
prevent sedimentation into waterbodies.” J.A. 558. FERC acknowledged that “these
plans cannot fully prevent sedimentation, but would provide adequate protections by
reducing sedimentation into streams and reducing the potential for slope failures.” J.A.
558.
Also, “[t]o minimize potential impacts on karst related groundwater through
construction associated sedimentation and runoff, [MVP] will implement the erosion
control measures outlined in [FERC’s] Plan and its Karst-specific Erosion and Sediment
Control Plan.” J.A. 566. Additionally, “to minimize the potential for hazardous
materials leaking from construction equipment to contaminate groundwater, [MVP] will
implement the measures outlined in its Stormwater Pollution Prevention Plan (SWPP
Plan); Spill, Prevention, Control, and Countermeasures Plan (SPCC Plan); and
Unanticipated Discovery of Contamination Plan for Construction Activities in West
Virginia and Virginia.” J.A. 566.
FERC’s certificate noted that, with regard to streams crossed by the Project, FERC
was taking into consideration not only the sedimentation that would be produced from the
crossing itself, but also the sedimentation that would result from runoff from construction
workplaces. FERC noted that the stream crossings would “result in temporary (less than
18
4 days) and localized (for a distance of only a few hundred feet of the crossing) increases
in turbidity downstream of construction, but the magnitude of this increase is minimal
compared to increased turbidity associated with natural runoff events.” J.A. 569. FERC
added that “[o]nce construction is complete, [MVP] will stabilize and restore streambeds
and banks consistent with the Wetland and Waterbody Construction and Mitigation
Procedures.” J.A. 569.
In addition to all the measures FERC specifically required, FERC noted that the
Corps and various state agencies “have the opportunity to impose conditions to protect
water quality pursuant to sections 401 and 404 of the Clean Water Act.” J.A. 570. FERC
emphasized that “[t]he applicants must obtain all necessary federal and state permits and
authorizations, including the water quality certifications, prior to receiving [FERC]
authorization to commence construction.” J.A. 570. FERC specifically concluded:
Based on [FERC] staff’s experience with pipeline construction, and
[MVP’s] commitment to cross waterbodies via dry-ditch methods,
adherence to the measures in [FERC’s] Plan and Procedures, [MVP’s]
proposal to conduct a stream monitoring plan, and use of [FERC’s] third-
party compliance program, we determine that impacts on waterbodies due
to sedimentation will be effectively minimized.
J.A. 567.
FERC’s certificate provided that MVP “must receive written authorization from
the Director of OEP [Office of Energy Projects] before commencing construction of any
project facilities.” J.A. 628 (emphasis omitted). Finally, as is relevant here, the face of
the certificate explained FERC’s flexibility to deal with unforeseen contingencies with
the potential to affect the environment:
19
The Director of OEP, or the Director’s designee, has delegated authority to
address any requests for approvals or authorizations necessary to carry out
the conditions of the order, and take whatever steps are necessary to ensure
the protection of all environmental resources during construction and
operation of the project and activities associated with abandonment. The
authority shall allow:
a. the modification of conditions of the order;
b. stop work authority; and
c. the imposition of any additional measures deemed necessary to
ensure continued compliance with the intent of the conditions of the order
as well as the avoidance or mitigation of unforeseen adverse environmental
impacts resulting from project construction and operation and
abandonment.
J.A. 624-25 (Appendix C to the Certificate).
B. Corps’ Section 404 Review and Virginia’s Related Section 401 Review
MVP requested its Section 404 permit from the Corps by filing a “Joint Permit
Application” in February 2016. See 33 U.S.C. § 1344(a). The application served as a
preconstruction notification under “Nationwide Permit 12” (“NWP 12”), which concerns
“activities required for the construction, maintenance, repair, and removal of utilities
lines and associated facilities in waters of the United States.” J.A. 100. See 33 U.S.C.
1344(e)(1) (allowing the Secretary of the Army to issue permits on a “nationwide basis
for any category of activities involving discharges of dredged or fill material if the
Secretary determines that the activities in such category are similar in nature, will cause
only minimal adverse environmental effects when performed separately, and will have
only minimal cumulative adverse effect on the environment”). Applicants seeking
coverage under that permit must provide information that the Corps can use “to
determine that the adverse environmental effects of the activity will be no more than
20
minimal and to determine the need for compensatory mitigation or other mitigation
measures.” J.A. 430. A project can be covered by NWP 12 only if it satisfies numerous
conditions that apply generally to each nationwide permit. One such condition requires
that construction include appropriate soil erosion and sediment controls. In this way,
NWP 12 “ties in the requirements and practices of the VESC program and regulations.”
J.A. 112. Additionally, although NWP 12 authorizes disturbance of streams temporarily
during construction, the permit requires that streams be restored to pre-construction
condition once construction is complete.
In 2017, the Corps revised the requirements for NWP 12, see Issuance and
Reissuance of Nationwide Permits, 82 Fed. Reg. 1860-01, 1985-86 (Jan. 6, 2017), which
prompted MVP to revise its earlier-filed application. In MVP’s revised application, MVP
discussed in detail the Project’s potential impacts on wetland, stream, and river crossings
and the steps MVP would take to address them. In March 2017, the Corps added several
Regional conditions specific to Virginia for the NWP 12.
As per Virginia law, the State Agencies then considered whether NWP 12 and the
certification conditions satisfied the criteria necessary for Section 401 certification. 9 Va.
Admin. Code 25-210-130(H). Following its consideration of public comment, the Board
issued its certification on April 7, 2017, concluding that the requisite criteria had been
satisfied (the “April 401 Certificate”). The certification stated that “the Board finds that
there is a reasonable assurance that the activities permitted under the Corps’ NWP
program . . . will be conducted in a manner which will not violate applicable water
21
quality standards, provided permittees comply with all applicable Section 401
conditions.” J.A. 452.
C. Virginia’s Approval of MVP’s Annual Standards and Specifications
MVP first submitted its standards and specifications to DEQ in February 2016.
Over the course of more than a year, DEQ engaged in several written and in-person
exchanges with MVP representatives before finally approving the standards and
specifications for the Project in June 2017 (“MVP’s Standards and Specifications”).
They identify the measures MVP will take to meet the substantive requirements of the
VESC and VSM Laws. They also outline how MVP will meet FERC’s requirements
regarding its Upland Erosion Control, Revegetation, and Maintenance Plan and Wetland
and Waterbody Construction and Mitigation Procedures.
The approved standards and specifications include, among other things, plans to
protect against impacts from landslides and blasting, requirements for addressing acidic
silt, and assessing karst hazards. They also require MVP to monitor land-disturbing
activities, conduct regular inspections, and report the results to DEQ. The technical
requirements in MVP’s Standards and Specifications in fact exceed in several respects
the requirements that the Virginia Construction General Permit imposes generally on
large-scale construction projects. 8
8
For example, the standards and specifications require MVP to (1) install
permanent waterbars and slope breakers in some locations 25 feet from waterbody
boundaries, (2) install temporary berms and trench breakers to slow stormwater flowing
along a right-of-way or trench, (3) reduce the width of the construction area for the 50
feet on each side of a waterbody where possible, (4) restrict the undertaking of equipment
(Continued)
22
In addition to these requirements, DEQ also informed MVP that it needed to
submit site-specific plans to DEQ for its approval before commencing land-disturbing
activities. These plans would “address every foot of land disturbance related to pipeline
construction, including the path of the proposed pipeline right of way . . . , access roads,
construction lay-down areas and construction activities that will occur in streams and
wetlands.” J.A. 108. Additionally, DEQ required MVP to post these plans on its website
so that the public could comment on them.
D. Virginia’s Section 401 “Supplemental Proceedings”
On May 19, 2017, the same day DEQ issued the 2017 Guidance Document, it also
issued an information request to MVP pursuant to the new policy. The request stated that
it was “for the purpose of evaluating whether additional 401 certification conditions are
necessary to ensure protection of water quality.” J.A. 7. Included in the many categories
of information requested were “[a] complete listing of all type of project-related upland
ground-disturbing activities that would occur within 50 feet of” surface waters; a list of
sensitive waterbodies located within 50 feet of the land-disturbing activities; and
information concerning various measures MVP would be taking to protect water quality,
including a water-quality monitoring plan. J.A. 8. DEQ’s request marked the beginning
of a supplemental process that involved many detailed exchanges of information between
maintenance, storage, and refueling activities within 100 feet of any waterbody, and (5)
disc and de-compact topsoil in disturbed areas during restoration of rights-of-way.
23
DEQ and MVP, as well as in-person work sessions involving representatives of various
other state agencies.
On July 3, 2017, DEQ issued a draft 401 certification that included 14 conditions
that had not been included in the April 401 Certification (for the Corps’ 404 permit). The
draft was shared with the public subject to DEQ’s notice and comment procedures,
generating more than 8,000 comments. DEQ also held two public hearings regarding the
certification. As this process continued, DEQ and MVP continued to discuss more water-
quality related concerns, what measures would be employed to address the concerns, and
how effective those measures would be. DEQ also entered into a contract with the
United States Geological Service to monitor water quality during construction.
As a result of this continued review, DEQ substantially revised its draft 401
certificate, adding several new requirements. The revised draft included 15 conditions
that were in addition to the many other requirements imposed by the various other
governmental entities and laws. Those conditions included “specific requirements for
best work practices emphasizing hazard assessment, frequent inspection requirements,
monitoring activities, preventative measures, riparian buffer protections, and
comprehensive mitigation plans.” J.A. 130.
In addition to preparing the revised draft certification, DEQ prepared other
documents explaining its analysis, including a “Basis for Certification” and detailed
responses to the public’s comments. DEQ also further explained its analysis when it
presented its recommendation to the Board during a two-day public meeting in December
2017.
24
As noted, the certification process required Virginia to determine that it had
“reasonable assurance” that the Project would “not violate applicable water quality
standards.” 40 C.F.R. § 121.2(a)(3). DEQ recognized that “[t]he term ‘reasonable
assurance’ is not defined in the [CWA] or applicable federal regulations.” J.A. 124. It
reasoned that the standard “addresses future events” and thus is “inherently predictive in
nature and absolute certainty is not required.” J.A. 103 n.4, 125. Still, DEQ reasoned
that the term requires “more than a probability or mere speculation. J.A. 103 n.4, 125.
DEQ concluded that, with all of the additional conditions imposed in the proposed
Section 401 certification, that standard was met.
DEQ noted that application of the VESC and VSM Laws through the annual
standards and specification program would serve “to protect surface water quality during
and after construction completion.” J.A. 107. DEQ also emphasized that the
supplemental 401 review was only one of many programs and processes protecting
Virginia’s water quality, each of which DEQ participated in. These programs and
processes included FERC’s environmental review; the CWA section 404 certification and
related VWP permitting programs; DEQ’s review of stormwater and erosion control
measures through the VESC and VSM Laws; DEQ’s supplemental Section 401 review of
impacts of upland activities; and DEQ’s participation in the development of project-
specific water-quality monitoring requirements. DEQ concluded that these programs,
“[w]hen considered as a unified approach, . . . provide a thorough technical evaluation
25
and process that is designed to ensure that Virginia’s water quality is protected.” J.A.
113. 9
DEQ noted that in the process that culminated with issuance of the April 401
Certification, DEQ had “already established reasonable assurance that activities in
streams and wetlands” would “be conducted in a manner that [would] not violate
applicable water quality standards.” J.A. 126. Reviewing the potential impact of the
stream-crossing activities that were covered by NWP 12, DEQ emphasized that the
permit requires the use of appropriate erosion and sediment controls. DEQ also
emphasized that NWP 12 requires, with regard to any stream crossing, that any
disturbance will only be temporary and that the impact area must be restored to pre-
construction condition once construction is complete. DEQ also noted that “[t]he VWP
program and prior certification of the Corps’ Nationwide Permits has proven to be
sufficient to evaluate and, when necessary, mitigate potential water quality impacts for
linear construction projects, such as roads and pipelines.” J.A. 100.
DEQ acknowledged that its review of the project-specific stormwater management
and erosion and sediment control plans – the description of exactly how the annual
standards and specifications would be applied foot-by-foot within the Project – would not
be completed until after completion of Virginia’s Section 401 process. Nevertheless,
DEQ’s reasonable-assurance determination of the upland activities depended in part on
9
The document explained that the earlier-issued 401 certification for the
Corps’ Nationwide Permit and the additional proposed 401 certification “together would
constitute the Commonwealth of Virginia’s 401 Certification for the MVP Project.” J.A.
103 (emphasis in original).
26
the facts (1) that no land-disturbing activity could begin until those plans had been
approved, and (2) that the plans would not be approved unless they satisfied MVP’s
Standards and Specifications, which DEQ had already determined complied with the
applicable statutory and regulatory requirements. DEQ also noted that Virginia’s AS&S
Program “incorporates the same engineering, erosion and sediment control,
recordkeeping, monitoring, inspecting and post construction stormwater management
requirements that are otherwise implemented in the . . . Construction General Permit (9
Va. Admin. Code § 25-880-1 et seq.).” J.A. 126. DEQ drew assurance from the fact that
a Richmond Circuit Court had recently upheld the Construction General Permit on the
basis that “substantial evidence in the record [supported] the Board’s determination that
proper implementation of permit conditions, including inspections and corrective action,
would protect water quality.” J.A. 127; see Order, Kelble v. Commonwealth, Case No.
CL14-762, at 4-5 (Richmond Cir. Ct. Apr. 10, 2017) (concluding in appeal challenging
whether Construction General Permit adequately protected water quality that substantial
evidence supported Board’s determination that proper implementation of the conditions
of the permit, including inspections and adaptive actions, would protect water quality).
And DEQ placed strong reliance on the EPA’s conclusion that its own construction
general permit was sufficient to prevent projects from negatively affecting water quality.
DEQ emphasized that it “traditionally rel[ies] on the technical studies and analysis of
[the] EPA” because DEQ lacks the money or manpower to do the “in-depth analyses”
that the EPA does. J.A. 305.
DEQ concluded,
27
In the absence of information demonstrating otherwise, compliance with
the requirements under the [AS&S] Program will result in stormwater
discharges being controlled as necessary to meet applicable water quality
standards and antidegradation requirements. More specifically, by
imposing requirements that discharges to impaired, TMDL [Total
Maximum Daily Load], and exceptional waters comply with additional
requirements, to stabilize exposed areas faster and to conduct site
inspections more frequently than other sites (in addition to meeting
[stormwater and erosion] requirements), authorizing these discharges will
not result in a lowering of water quality. Thus, DEQ has determined that
compliance with the [AS&S] approval generally is sufficient to satisfy Tier
2 and Tier 3 antidegradation requirements because the controls will not
result in a lowering of water quality, making individualized Tier 2 or Tier 3
review unnecessary.
J.A. 128-29. The DEQ added that its determination that the AS&S Program would
ensure compliance with water quality standards and antidegradation requirements was
supported by the fact that the requirements under that program met the technical
requirements of the Construction General Permit and that the EPA had stated in its 2017
Construction General Permit fact sheet that compliance with that permit was generally
sufficient to prevent any lowering of water quality. See J.A. 1075 (“EPA has determined
that compliance with the [Construction General Permit] generally will be sufficient to
satisfy Tier 2 (or 2.5) and Tier 3 antidegradation requirements because the controls will
not result in a lowering of water quality, making individualized Tier 2 or Tier 3 review
unnecessary.”).
DEQ also noted that FERC had concluded – prior to Virginia’s adding any
conditions in the Section 401 process – that impacts on water resources were “expected to
return to baseline levels over a period of days or weeks following construction given the
requirement to restore water bodies to their original contours.” J.A. 132. Given that fact,
28
and the fact that the Corps’ approval would be necessary regarding any stream or
wetlands crossings, “FERC [had] concluded that the cumulative effect on surface
waterbody resources would be minor.” J.A. 132. Similarly, DEQ took notice of the fact
that the Corps would be assessing in detail “geographic areas that are determined to be
potentially subject to more than minimal cumulative adverse environmental effects,” and
the Corps will have authority to add conditions to NWP 12 “to require mitigation
measures to ensure that the cumulative adverse environmental effects of these activities
are no more than minimal.” J.A. 133-34.
Finally, DEQ emphasized that the proposed 401 certification required MVP to
develop a limited water-quality monitoring plan to monitor and evaluate potential
impacts from activities not subject to the Corps’ Section 404 permit. DEQ noted that the
plan MVP submitted included in-stream monitoring of water quality in proximate upland
areas. The monitoring would occur before, during, and after construction, and would
evaluate temperature, turbidity, dissolved oxygen, and pH. Elevated sample results “that
exceed the applicable water quality criteria” would require consultation between MVP
and DEQ so that they could respond appropriately. J.A. 92. In addition to this
monitoring, DEQ noted it would be conducting “project-specific water quality
monitoring at a number of proposed . . . stream crossings near sensitive and/or critical
areas” that also “will be conducted before, during and after . . . construction activities.”
J.A. 139. DEQ noted that the monitoring had already begun in the fall of 2017 in order
“[t]o establish a baseline of water quality conditions,” and that it would continue if the
project were approved until “at least one year after completion of construction.” J.A.
29
140. DEQ stated that “[t]he monitoring is intended to provide reasonable assurance that
erosion and sediment control measures are effective” and that “[i]f necessary, changes
will be made to approved erosion and sediment control plans based on conditions
encountered in the field during construction.” J.A. 140.
During the two-day meeting held by the Board to consider DEQ’s
recommendation, the Board further amended the draft certificate, including adding one
additional condition. The Board approved the certificate as amended, and on December
8, 2017, DEQ issued a final certification (the “December 401 Certification”). The
certification stated that it “addresses Project activities in upland areas outside of the
Corps jurisdictional areas under 33 U.S.C. § 1344 and water withdrawal activities that are
exempt from coverage under the Virginia Water Protection Permit Program Regulation (9
[Va. Admin. Code] § 25-210-10, et seq.).” 10 J.A. 48. The certification declared that
“[t]he additional conditions contained in . . . this Certification along with the
requirements imposed by the VWP regulation, the Corps Section 404 permitting
requirements, and prior regulatory actions associated with the approval and requirements
10
The certificate continued:
In the manner and to the extent described herein, this includes all proposed
upland activities associated with the construction, operation, maintenance,
and repair of the pipeline, any components thereof or appurtenances
thereto, and related access roads and rights-of-way as well as certain
project-related surface water withdrawals. This Certification covers all
relevant upland Project activities within the route identified in the
Environmental Impact Statement.
J.A. 48.
30
of the June 2017 Annual Standards and Specifications, and the April 7, 2017 Section 401
Water Quality Certification of the Corps Nationwide Permit 12 provide reasonable
assurance that water quality standards will not be violated.” J.A. 53.
E. Petitions For Review and Subsequent Events
On December 8, 2017, and December 18, 2017, separate petitions for review were
filed by various entities challenging the December 401 Certification. Both petitions
named the Board, the Board’s members, DEQ, DEQ’s Director, and DEQ’s Director of
its Water Permitting Division as respondents (“Respondents”). We subsequently
consolidated the petitions and granted MVP’s motion to intervene.
On December 26, 2017, the Corps’ Norfolk District verified that MVP could rely
on NWP 12 for its stream crossings. FERC began issuing notices to proceed with
construction on January 22, 2018.
III.
As noted earlier, section 717r of the NGA provides appellate jurisdiction over a
state administrative agency’s grant of a Section 401 certificate, in “[t]he United States
Court of Appeals for the circuit in which a facility subject to [15 U.S.C. §717f] is
proposed to be constructed, expanded, or operated.” 15 U.S.C. § 717r(d)(1). And it is
undisputed here that the Project is subject to 15 U.S.C. § 717f. Nevertheless,
Respondents and MVP both argue that Petitioners lack standing to litigate this petition
for review. We disagree.
Article III gives federal courts jurisdiction only over “[c]ases” and
“[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. “One essential aspect of this
31
requirement is that any person invoking the power of a federal court must demonstrate
standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). To establish
Article III standing, Petitioners must allege that (1) they suffered an actual or threatened
injury that is concrete, particularized, and not conjectural; (2) the injury is fairly traceable
to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court
decision. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016).
Petitioners are individuals and other entities who allege the construction of the
pipeline would cause them (or their members) injuries related to their various interests in
the affected waters. Although Respondents and MVP do not dispute that Petitioners
sufficiently allege that they will be harmed by construction of the Project, they
nevertheless contend that Petitioners cannot establish any of the three standing prongs.
Respondents and MVP contend it was FERC’s granting of its permit that caused any
injuries that Petitioners are suffering insofar as it was FERC’s permit that allowed the
Project to proceed. MVP also argues that even were Petitioners to prevail on the merits
and we were to vacate the December 401 Certificate and remand for further proceedings,
Petitioners would need to clear several additional hurdles to eventually obtain the
ultimate relief that they seek, namely, more stringent certificate conditions or complete
discontinuation of the Project.
The standing principles that control here are those we applied in Townes v. Jarvis,
577 F.3d 543, 547 (4th Cir. 2009). In that case, the Virginia Parole Board found prisoner
Townes ineligible for discretionary parole pursuant to a three-strikes statute. See id. at
545-46. After he was denied state habeas relief, he filed a federal habeas petition,
32
claiming that the parole-ineligibility determination violated his due process and equal
protection rights. See id. at 546. The district court dismissed the petition. See id. We
granted a certificate of appealability on both claims. See id. A threshold question in the
appeal was whether Townes’s case was mooted by his release from prison on mandatory
parole while his appeal was pending. We concluded that the case was not moot because
each standing element remained satisfied. See id. at 546-49.
We concluded that Townes properly asserted injury-in-fact insofar as the parole-
ineligibility decision cost him the opportunity to receive a shorter period of parole. See
id. at 547. We reasoned that were he found to be eligible for parole, he would receive a
discretionary parole hearing, which would be the opportunity for a shorter parole period.
See id. Because it was the parole board’s parole-ineligibility decision that deprived
Townes of a discretionary hearing, we concluded his injury was fairly traceable to the
parole-ineligibility decision. See id. Furthermore, Towne’s lost-opportunity injury was
redressable insofar as a favorable decision on the merits could result in him receiving a
discretionary parole hearing. See id.We noted that to establish redressability, Townes did not need to show that his
obtaining a discretionary parole hearing would likely result in a shortened parole period.
See id. We explained,
In some cases, like the one at hand, a plaintiff will seek immediate relief
from a federal court as a necessary antecedent to the ultimate relief he seeks
from a different entity, like an administrative agency. In these situations, to
meet the redressability prong, a party must demonstrate that a favorable
decision from the federal court likely would provide him immediate relief,
but need not demonstrate that it likely would provide him the ultimate,
discretionary relief sought from the agency.
33
Id. (emphasis in original) (citing FEC v. Akins, 524 U.S. 11, 25 (1998)). We explained
that “to require a showing of likelihood of ultimate relief in this situation would involve
courts in the speculative (if not impossible) task of predicting how an agency will
exercise its discretion.” Id. at 548. Still, we noted that the prospect of the plaintiff’s
achieving the ultimate relief he seeks is not altogether irrelevant to the issue of
redressability: “[I]f no realistic possibility exists that a plaintiff can obtain the ultimate
relief,” then he cannot show redressability. Id. (internal quotation marks omitted).
The facts of the present case are closely analogous to those of Townes. As in
Townes, Petitioners challenge what they claim is an improper administrative decision that
they had hoped and expected would yield a more favorable result. Also as in Townes,
they seek “immediate relief from a federal court as a necessary antecedent to the ultimate
relief [they] seek[] from a different entity, like an administrative agency.” Id. at 547
(emphasis in original). We therefore analyze the standing issue here applying the same
principles we used in Townes.
Applying these principles, we conclude Petitioners have standing. Just as the
board’s parole-ineligibility decision ended Townes’s opportunity to receive a
discretionary parole hearing (and the shorter parole period he would have hoped to
receive from that hearing), the December 401 Certification ended Petitioners’ opportunity
to have more stringent requirements imposed (or the Project vetoed entirely). Thus, like
Townes, Petitioners have properly asserted injury-in-fact fairly traceable to the decision
they challenge. And also like Townes, were Petitioners to prevail on the merits of their
claims in federal court, the court could immediately undo the administrative decision that
34
caused their injury. As was true in Townes, analyzing redressability does not require us
to predict whether, if we rule for Petitioners on the merits, they will eventually obtain the
ultimate relief that they seek. 11 Rather, to show redressability, they need only
demonstrate a “realistic possibility” that they will obtain that ultimate relief. Id. at 548
(internal quotation marks omitted).
As MVP points out, in order to obtain the relief Petitioners ultimately seek –
tighter restrictions or a complete discontinuation of the Project – Petitioners would need
to clear several hurdles even after prevailing on the merits before us. At the very least,
they would need the State Agencies to decide on remand not to elect to waive any further
review. See 33 U.S.C. § 1341(a). Then they would need the State Agencies to decide to
deny reissuance of the 401 certification or at least to impose stricter conditions. And as
MVP points out, even if the State Agencies decided to take that course, FERC
theoretically could resist their efforts by arguing, for example, that it is too late in the
11
Citing Doe v. Virginia Department of State Police, 713 F.3d 745, 755 (4th
Cir. 2013), MVP suggests that to show redressability, Petitioners must show it is likely
they would obtain their ultimate relief should we rule for them on the merits of their
petition. But Doe does not apply here. In Doe we explicitly concluded that the
redressability rule of Townes did not apply because the plaintiff did not meet the criteria
for applying the rule, namely she was not “seek[ing] immediate relief from a federal
court as a necessary antecedent to the ultimate relief [s]he seeks from a different entity,
like an administrative agency.” 713 F.3d at 756 n.7 (internal quotation marks omitted).
Because Petitioners here are seeking such relief, they are entitled to the benefit of the
Townes rule and thus do not need to show they will likely eventually obtain the ultimate
relief in order to show redressability.
35
process for the State Agencies to make such a decision or that further restrictions would
be preempted.
In our view, however, none of these potentialities are sufficient to negate the
“realistic possibility” that if Petitioners prevailed on the merits of this petition, they
would obtain at least more stringent requirements on remand. Petitioners argue that
FERC would be legally required to add any conditions requested by the State Agencies
on remand or to honor a decision by the State Agencies to deny 401 re-certification. But
even assuming Petitioners are incorrect, and FERC had some discretion on the subject,
there is good reason to believe FERC would be amenable to the State Agencies’ attempts
to re-issue its 401 certification with more stringent restrictions. FERC’s certificate
plainly gave the OEP Director discretion to stop construction or to impose additional
conditions for protection of the environment. 12 And, FERC has general authority to issue
supplemental orders in any event. See 18 C.F.R. § 153.11 (FERC “may make, at any
time subsequent to the original order of authorization, after opportunity for hearing, such
supplemental orders implementing its authority under section 3 of the Natural Gas Act as
it may find necessary or appropriate.”).
If the State Agencies determined on remand that additional conditions would be
needed to give them reasonable assurance that their water quality would be protected,
they would have strong arguments to make that FERC could not, or at least should not,
12
Moreover, Virginia’s certificate expressly recognized that it could be
revoked, even though judicial vacatur was not specifically referenced as a basis for
revocation.
36
stand in their way. It is undisputed, after all, that so long as the state does not waive the
right to participate, a state’s grant of a Section 401 certificate is a precondition for
FERC’s ability to issue its certificate. See 33 U.S.C. § 1341(a)(1) (providing that
applicant for a FERC permit “shall provide” FERC with a Section 401 Certificate, and
“[n]o license or permit shall be granted until the certification required by this section has
been obtained or has been waived”); see also 33 U.S.C. § 1341(d) (“Any [Section 401]
certification . . . shall become a condition on any Federal license or permit subject to the
provisions of this section.” (emphasis added)); American Rivers, Inc. v. FERC, 129 F.3d
99, 107 (2d Cir. 1997) (explaining that Section 401’s language “leav[es] little room for
FERC to argue that it has authority to reject state conditions it finds to be ultra vires”).
MVP is no doubt correct that, were FERC inclined to resist the State Agencies’
efforts, it would have colorable arguments it could assert as well. And for that reason, we
cannot say with certainty how FERC would react. Fortunately, however, it is not our role
to engage “in the speculative (if not impossible) task of predicting how an agency will
exercise its discretion.” Townes, 577 F.3d at 548. Rather, it is sufficient for us to
conclude, as we do here, that there is at least a realistic possibility that the State Agencies
would successfully impose more restrictive conditions (or deny re-certification) were we
to vacate the December 401 Certification. We therefore determine that the possibility
Petitioners could prevail on the petition before us and yet still not obtain the relief they
ultimately seek does not preclude them from showing redressability. Rather, we hold that
Petitioners have demonstrated standing to assert the claims contained in their petition for
review, and it is to those claims that we now turn.
37
IV.
A.
We review Virginia’s Section 401 certification under the arbitrary-and-
capriciousness standard. 13 See AES Sparrows Point LNG, LLC, 589 F.3d at 733. “[T]he
scope of our review under [that] standard is narrow and highly deferential.” Id.“Especially in matters involving not just simple findings of fact but complex predictions
based on special expertise, ‘a reviewing court must generally be at its most deferential.’”
Ohio Valley Envtl. Coal., 556 F.3d at 192 (quoting Baltimore Gas & Elec. Co. v. NRDC,
462 U.S. 87, 103 (1983)).
In determining whether agency action was arbitrary or capricious,
the court must consider whether the agency considered the relevant factors
and whether a clear error of judgment was made. Although this inquiry
into the facts is to be searching and careful, the ultimate standard of review
is a narrow one. The court is not empowered to substitute its judgment for
that of the agency. Deference is due where the agency has examined the
relevant data and provided an explanation of its decision that includes a
rational connection between the facts found and the choice made.
Id. at 192 (internal quotation marks and citations omitted).
B.
13
Petitioners argue for application of this standard. And Respondents
acknowledge that “courts reviewing challenges under Section 401 – including this Court
– have often looked to the APA [Administrative Procedure Act, see 5 U.S.C.
§ 706(2)(A)]” and applied the arbitrary-and-capricious standard of review. Respondents’
brief at 27. Nevertheless, they question whether this approach is correct given that the
APA “does not cover state agencies.” Delaware Riverkeeper Network v. Secretary of Pa.
Dep’t of Envtl. Prot., 870 F.3d 171, 179 n.8 (3d Cir. 2017); see 5 U.S.C. § 701(b)(1).
They suggest that Virginia law should supply the standard, which they maintain would
require application of the substantial-evidence standard of review. We need not resolve
this issue, however, because Petitioners’ claims fail even under their preferred standard.
38
Petitioners argue, for two reasons, that the State Agencies acted arbitrarily and
capriciously in issuing the December 401 Certificate.
1.
First, they contend that DEQ did not have a sufficient basis to find reasonable
assurance that the types of measures, restrictions, and programs in place to prevent excess
sediment from entering state waters would be effective to satisfy the requirements of
Virginia’s antidegradation policy. We disagree.
The construction of the Project was exactly that, a large construction project, and
the State Agencies very reasonably undertook to protect their waters with the “tried and
true” methods developed for just this purpose. Indeed, MVP’s Standards and
Specifications incorporate the very same substantive protections as are contained in the
Virginia Construction General Permit. The State Agencies justifiably drew confidence in
these protections from the EPA’s judgment regarding the effectiveness of these same
protections in preventing construction from negatively impacting water quality. And a
Richmond Circuit Court concluded as well that the Virginia Construction General Permit
was sufficient to prevent any negative impacts on water quality. See Order, Kelble v.
Commonwealth, Case No. CL14-762, at 4-5 (Richmond Cir. Ct. Apr. 10, 2017).
Petitioners nonetheless contend, for several reasons, that the State Agencies acted
arbitrarily in relying on the EPA’s judgment regarding the general effectiveness of these
protections. They argue, for example, that interstate gas pipelines “can have significantly
greater impacts than the smaller projects authorized by EPA’s General Permit.”
Petitioners’ Reply brief at 19. But Petitioners do not suggest any reason why it was
39
arbitrary for the State Agencies to assume that those same methods used for years to
prevent large construction projects from harming water quality would not continue to be
effective on an even larger scale.
Petitioners also argue that the federal General Permit has an element that is not
present with regard to the Project here because, “[u]nlike the NPDES program, the
[VESC] Law under which the [AS&S] are approved does not mandate compliance with
water quality standards.” Petitioners’ Reply brief at 19-20. However, while MVP’s
Standards and Specifications do not directly incorporate Virginia’s water quality
standards, the December 401 Certification incorporates MVP’s water-quality monitoring
plan. That plan in turn requires MVP to promptly report any sampling results “that
exceed the applicable water quality criteria,” so that DEQ and MVP can quickly engage
in consultation and make appropriate adjustments. J.A. 92. As DEQ explained to the
Board, it is of course true that Section 401 certifications are “inherently predictive in
nature.” J.A. 103 n.4, 125. See Port of Seattle v. Pollution Control Hearings Bd., 90
P.3d 659, 679 (Wash. 2004) (“[A] finding of ‘reasonable assurance’ is predictive in
nature.”). Cf. Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 501 (4th Cir. 2005)
(noting in context of section 404 that “it is impossible for the Corps’ ex ante
determinations of minimal impact to be anything more than reasoned predictions”).
Nonetheless, it was reasonable for the State Agencies to conclude that DEQ, like the
EPA, would be able to use the tools at its disposal to adjust to any unexpected
contingencies that may lead to a short-term exceedance. We note that § 1341(d) plainly
contemplates a state requiring water monitoring as a basis for its reasonable assurance
40
certification. See 33 U.S.C. § 1341(d) (“Any certification provided under this section
shall set forth any . . . monitoring requirements necessary to assure that any applicant for
a Federal license or permit will comply with any applicable . . . limitations . . . and with
any other appropriate requirement of State law set forth in such certification.”). We see
no reason why reliance on such monitoring would be arbitrary or capricious. See Port of
Seattle, 90 P.3d at 678. 14
In their opening brief, Petitioners argue that even quick adjustments by DEQ to
minor exceedances would necessarily be insufficient to “maintain[] and protect[]” Tier 2
water quality, as Virginia’s antidegradation policy requires. 9 Va. Admin. Code 25-260-
30(A)(2). Petitioners argue that allowing any additional discharge of sediment to Tier 2
waters, no matter how small in quantity or temporary in duration the exceedance is,
would violate DEQ’s duty to “maintain[] and protect[]” water quality in these waters. Id.
As Respondents and MVP both noted in their response briefs, however, the State
Agencies do not construe their antidegradation policy so rigidly. Rather, they take the
14
For similar reasons, we conclude it was not arbitrary for the State Agencies
to issue the December 401 Certificate before the site-specific erosion and stormwater
management plans were finalized. Just as the existence of the plan to monitor water
quality during construction was an important part of its reasonable assurance even though
construction had not yet begun, the requirement that DEQ approve the site-specific plans
was important even though the plans had not been finalized. See Port of Seattle v.
Pollution Control Hearings Bd., 90 P.3d 659, 677 (Wash. 2004) (holding regulators did
not act arbitrarily or capriciously by basing reasonable assurance “on future submissions
of revised plans, reports, and studies, so long as their implementation and anticipated
outcome meet the reasonable assurance test”). Although the significance of both of these
protections depended upon DEQ’s future responses to future events, we do not believe it
was arbitrary for the State Agencies to trust that DEQ officials would respond
appropriately.
41
view that they can still “maintain[] and protect[]” water quality despite momentary
exceedances so long as they can quickly detect such exceedances and promptly respond
with appropriate changes in to prevent any significant degradation. See Va. Dep’t of
Envtl. Quality, Guidance Memo No. 00-2011, Guidance on Preparing VPDES Permit
Limits (Aug. 24, 2000), at 9 (“Since the quality of tier 2 waters is better than required by
standards, no significant degradation of the existing quality will be allowed.” (emphasis
added)). We defer to the agencies’ reasonable construction of their own regulations. See
Delaware Riverkeeper Network v. Secretary of Pa. Dep’t of Envtl. Prot., 870 F.3d 171,
181 (3d Cir. 2017); Clark v. Alexander, 85 F.3d 146, 152 (4th Cir. 1996). And
Petitioners do not challenge the reasonableness of DEQ’s construction here. Cf.
Petitioners’ Reply brief at 17-18 (acknowledging DEQ’s construction).
Certainly, it must be anticipated with large construction projects, that unexpected
problems will arise, leading at least to minor, short-term issues. Were Virginia’s policy
interpreted as rigidly as Petitioners suggest, no project affecting Tier 2 waters could ever
be approved without an economic/social development need analysis. See 9 Va. Admin.
Code § 25-260-30(A)(2) (providing that the quality of Tier 2 waters “shall be maintained
and protected unless the board finds . . . that allowing lower water quality is necessary to
accommodate important economic or social development in the area in which the waters
42
are located”). Especially given this reality, we find nothing unreasonable in DEQ’s
interpretation of the policy. 15
Petitioners also maintain that the State Agencies acted arbitrarily by relying on
EPA’s judgment regarding the general effectiveness of the type of protections in place for
the Project rather than taking a more site-specific approach. Petitioners point to evidence
in the record supporting their view that the protections in place here would not be
effective in preventing construction impacts from lowering water quality given the
specific characteristics of the Project, particularly the steep topography of the land at
issue. 16 But we conclude that the State Agencies’ approach appropriately blended site-
specific and non-site specific analyses. The December 401 Certification incorporates a
Landslide Mitigation Plan. For example, as DEQ explained in its response to public
comments to its draft certification,
15
Respondents also point out that Tier 3 waters receive the “highest level of
protection,” 63 Fed. Reg. 36742-01, at 36786 (July 7, 1998), and even in those waters,
“[a]ctivities causing temporary sources of pollution may be allowed . . . even if
degradation may be expected to temporarily occur provided that after a minimal period of
time the waters are returned or restored to conditions equal to or better than those existing
just prior to the temporary source of pollution.” 9 Va. Admin. Code § 25-260-
30(A)(3)(b)(3).
16
For example, they point to one particular study that concluded that
sedimentation at one crossing affected by the Project would increase by 1,536 percent
during construction even with best management practices and would permanently
increase sedimentation by 15% even after reclamation and revegetation. They also cite
several analyses from a hydrologist who concludes that MVP’s best management
practices would not in fact be sufficient to prevent significant adverse impacts to the
state’s water quality. And they point to evidence that other pipelines built in less
challenging terrain that have caused substantial water quality impacts.
43
Plan development included field observations for these sites including:
slope characteristics, GPS mapping of observed slides, slumps, rockfalls,
scarp locations, the presence of geotropically affected trees, drainage
features, and gullying. The Plan includes mitigation strategies such as
excavation and/or regarding of upgradient head soils, dewatering, rock
embedment as well as construction operations including buttressing and
reinforced soil slope.
Landslide mitigation also will depend on the installation of appropriate
drainage and erosion control measures during construction and proper
right-of-way reclamation. Certain site-specific measures have already been
identified for certain high risk areas and others will be applied as field
conditions indicate the need.
J.A. 138.
Moreover, DEQ has emphasized that it “traditionally rel[ies] on the technical
studies and analysis of the EPA” because DEQ lacks the money or manpower to do the
“in-depth analyses” that the EPA does. J.A. 305. While it is always true that government
agencies could undertake analysis that is more in-depth and more specific to a particular
project, we do not believe the State Agencies acted arbitrarily in placing significant
reliance on the effectiveness of its “tried and true” methods here. In making this
judgment, we cannot ignore the fact that the State Agencies vigorously participated at
every stage of the decision-making process and did not issue their final 401 certificate
until they had added all of the protections that they concluded were needed to give them
reasonable assurance that state water quality would be protected. This is exactly how the
system was designed to work.
At its essence, Petitioners’ position is that, having chosen to participate in the
process, Virginia was foreclosed from placing significant reliance on the judgment of
federal agencies regarding the general effectiveness of the types of protections in place
44
here and was limited in the types of evidence on which it could base its reasonable-
assurance certification. We see no reason why Virginia should be so hamstrung. And we
see no purpose we would serve by stepping in and second-guessing the analytical
methods Virginia deemed appropriate to provide it with reasonable assurance that its
water quality would be protected.
2.
Petitioners (and amicus Chesapeake Bay Foundation) also challenge the State
Agencies’ decision to analyze the impacts from activities covered by NWP 12 separately
from the impacts from upland activities related to construction. In light of this
segmentation, Petitioners maintain that issuance of the December 401 Certification was
arbitrary and capricious because the State Agencies “fail[ed] to consider the combined
effect of the upland activities and the stream and wetland crossings.” Petitioners’
Opening brief at 35. We disagree.
We note initially that the petition for review here challenges only the December
401 Certification. There is thus no argument before us that the State Agencies
improperly limited the scope of their April 401 Certification to the impact of activities
covered by NWP 12. What we do consider today is Petitioners’ argument that the State
Agencies erred by not including the impact of activities covered by NWP 12 within the
scope of their supplemental 401 process.
We find this criticism to be unfounded. Contrary to Petitioners’ suggestion, DEQ
“did not review the Project’s potential upland impacts in a vacuum.” MVP’s brief at 51.
Rather, DEQ “fully integrated [its earlier] analysis into its review of upland impacts.”
45
MVP’s brief at 50. Indeed, DEQ explained in its “Basis for Certification” that it was its
intention that the April 401 Certification for the activities covered by NWP 12 and the
additional proposed 401 certification “together would constitute the Commonwealth of
Virginia’s 401 Certification for the MVP Project.” 17 J.A. 103 (emphasis in original).
DEQ’s analysis in the supplemental process included consideration of the impacts the
activities covered by NWP 12 were expected to have. Thus, although the December 401
Certification “addresse[d] only activities in upland areas,” J.A. 48, and determined that
there was reasonable assurance that allowing these activities would not reduce water
quality, DEQ made this determination with full awareness and consideration of the fact
that the NWP 12-covered activities would also be occurring. And in the end, DEQ made
clear that it was only “[t]he additional conditions contained in Section V of the draft
certification along with the requirements imposed by the VWP regulation, the Corps
Section 404 permitting requirements, and prior regulatory actions associated with the
approval and requirements of the June 2017 [Annual Standards and Specifications],” that
“provide[d] reasonable assurance that water quality standards will not be violated.” J.A.
113 (emphasis added). Finally, as we have discussed, a significant basis for the State
Agencies’ reasonable-assurance certification was the existence of monitoring
17
The April 2017 Certification concerned only “activities permitted under the
Corps’ NWP program.” J.A. 452. As the Board was considering whether to approve the
issuance of a Section 401 certification for upland activities, several Board members made
clear that they wanted to ensure that the language of that certificate would not foreclose
the Board from participating in any future Section 401 process if the Corps decided to
issue individual permits as opposed to relying entirely on coverage under NWP 12.
46
requirements that would allow DEQ to make prompt adjustments if samples revealed
exceedances of pre-construction sedimentation levels. In this way, the monitoring plan
protected against any degradation of water quality from the Project, without regard to
what particular activities (or combination of activities) was the cause. For all of these
reasons, we conclude that the State Agencies’ segmented approach to the December 401
Certification, even if unorthodox, was not arbitrary and capricious.
V.
In sum, because we conclude that the State Agencies did not act arbitrarily and
capriciously in issuing the December 401 Certification, we deny the petition for review.
PETITION FOR REVIEW DENIED
47