Justia U.S. 4th Circuit Court of Appeals Opinion Summaries

Articles Posted in Environmental Law
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The Fourth Circuit considered two petitions for review challenging FERC's issuance of a license to McMahan, authorizing McMahan to operate the Bynum Hydroelectric Project on the Haw River in North Carolina. Assuming without deciding that a state may waive its certification authority under section 401 of the Clean Water Act by coordinating with an applicant in a scheme to defeat the statutory review period through a process of withdrawing and resubmitting the certification application, the court concluded that FERC's finding of coordination between McMahan and NCDEQ is not supported by substantial evidence. Furthermore, without evidence of improper coordination, the court concluded that FERC erred by determining that North Carolina waived its certification authority under section 401.In Case No. 20-1655, the court granted NCDEQ's petition for review of FERC's determination that NCDEQ waived its rights under the Clean Water Act to issue a water quality certification for the Project. The court vacated the license issued by FERC and remanded with instructions for FERC to reissue the license to include the water-quality conditions imposed by NCDEQ. In Case No. 20-1671, the court dismissed for lack of jurisdiction that portion of PK Ventures' petition for review challenging the validity of McMahan's state applications for a section 401 certification. Finding no merit to the remaining claims, the court otherwise denied the petition for review. View "North Carolina Department of Environmental Equality v. Federal Energy Regulatory Commission" on Justia Law

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The Fourth Circuit affirmed the district court's grant of summary judgment in favor of Red River on the Surface Mining Control and Reclamation Act claim. Plaintiffs filed suit alleging that Red River had violated the Clean Water Act, the Surface Mining Act, and, in the alternative, the Resource Conservation and Recovery Act. Plaintiffs' claims stemmed from alleged discharges of pollutants from point sources at Red River's now-inactive mine, and Red River's activities at the mine were governed by a combined Clean Water Act and Surface Mining Act permit issued by Virginia.The court held that, because the Surface Mining Act's lack of a permit shield supersedes, amends, or modifies the Clean Water Act's permit shield, the saving clause prevents liability under the Surface Mining Act for conduct that is otherwise shielded from liability under the Clean Water Act. The court explained that permitting liability under the Surface Mining Act for pollutant discharges that are otherwise exempted from liability under a Clean Water Act permit would contravene the text of the saving clause by allowing the Surface Mining Act to supersede, modify, or amend the Clean Water Act's permitting regime. View "Southern Appalachian Mountain Stewards v. Red River Coal Company, Inc." on Justia Law

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The Society field suit challenging the Corps' issuance of a permit to the Town of Ocean Isle Beach to construct a shoreline jetty to stop chronic erosion of its beaches. The Society claimed that numerous analyses conducted by the Corps in both its Environmental Impact Statement (EIS) and its Record of Decision were inconsistent with the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA).The Fourth Circuit applied a deferential standard of review under the Administrative Procedure Act and affirmed the district court's grant of summary judgment for the Corps, concluding that the Corps adequately examined the relevant facts and data and provided explanations that rationally connected those facts and data with the choices that it made. In this case, the Corps collected a broad range of data drawn from the facts and objectives of the project at issue, historical statistics and records, computer analyses, and opinions of other specialized agencies, and it analyzed those data to make judgments ultimately based on its own special expertise under the numerous criteria imposed by NEPA and the CWA. View "National Audubon Society v. United States Army Corps of Engineers" on Justia Law

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The Fourth Circuit granted MVP's petition for review challenging the Department's denial of MVP's Clean Water Act certification. MVP seeks to build a natural gas pipeline running through North Carolina and its rivers, streams, and wetlands.The court held that the Department's denial is consistent with the State’s regulations and the Clean Water Act. The court explained that it need not decide which version of the certification regulation to consider because, under the current version of the regulation, the Department's minimization reasoning is consistent with its water quality standards: namely, its riparian buffer rules. Furthermore, the Department properly denied certification, as it found that the temporal adjustment constituted a practical alternative that would better minimize harm to the State's waters. However, the court held that the Department did not adequately explain its decision in light of the administrative record. While the Department's decision adequately explained its concerns with the Mainline Project and the adverse effects of the Southgate Project, the court concluded that it failed to address the hearing officer's minimization findings and explain why it chose to deny certification rather than granting it conditionally. Accordingly, the court vacated the denial and remanded for additional agency explanation. The court remanded for further proceedings. View "Mountain Valley Pipeline, LLC v. Sierra Club" on Justia Law

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MVP asked two Army Corps districts to verify that, pursuant to the Clean Water Act, 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 in those districts could be governed by the Army Corps' 2017 nationwide permit (NWP) referred to as NWP 12. 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"). 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 filed petitions for agency review of the Verification and Reinstatement pursuant to the Natural Gas Act (NGA) and filed the instant motions to stay.The Fourth Circuit concluded that 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. The court explained that 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). Furthermore, 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, the court granted petitioners' motions for a stay of the Huntington District's Verification and the Norfolk District's Reinstatement until such time as the court may consider the petitions for review on their merits. However, the court concluded that petitioners are not likely to succeed on the merits of their challenges to the Army Corps' 2017 issuance of NWP 12 itself because the court likely lacks jurisdiction to entertain such challenges. View "Sierra Club v. U. S. Army Corps of Engineers" on Justia Law

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The Fourth Circuit granted Ergon's petition for review of the EPA's decision denying Ergon's petition to be exempt from the EPA's administration of a renewable fuel standard program. The court previously vacated and remanded the EPA's denial as arbitrary and capricious. On remand, the EPA denied Ergon's petition again. In this appeal, Ergon argues that the EPA repeated the errors the court previously identified in Ergon I by again relying on the DOE's facially deficient scoring metrics to deny the petition.The court reviewed the record and concluded that, although the EPA's post-remand decision largely cured the problems the court previously identified, Ergon has provided sufficient evidence undermining one aspect of the EPA's decision. In this case, part of the EPA's basis for accepting the DOE's reasoning as to Section 1(b) of the DOE's Scoring Matrix has been reliably called into question, and thus the EPA's decision was arbitrary and capricious. Because of the threshold problem with the rationale provided for the Section 1(b) scoring, the court did not reach the secondary issue regarding the apparently contradictory definitions of "refinery" used in Section 1(b) and 2(a). Accordingly, the court vacated and remanded for further proceedings. View "Ergon-West Virginia, Inc. v. Environmental Protection Agency" on Justia Law

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Petitioners challenged the Board's award of a permit for construction of a compressor station on behalf of ACP in the historic community of Union Hill. The compression station is one of three stations planned to support the transmission of natural gas through ACP's 600-mile pipeline.The Fourth Circuit held that the Board erred in failing to consider electric turbines as zero-emission alternatives to gas-fired turbines in the compressor station. The court also held that the Board erred in failing to assess the compressor station's potential for disproportionate health impacts on the predominantly African-American community of Union Hill, and in failing to independently evaluate the suitability of that site. Accordingly, the court vacated the permit and remanded for the Board to make findings with regard to conflicting evidence in the record, the particular studies it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the compressor station. View "Friends of Buckingham v. State Air Pollution Control Board" on Justia Law

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The Fourth Circuit granted a petition for review of the FWS's new 2018 Biological Opinion and Incidental Take Statement in connection with the proposed Atlantic Coast Pipeline. The court held that FWS arbitrarily reached its no-jeopardy conclusions and failed to correct the deficiencies in the take limits that the court identified in the previous appeal.In this case, the Biological Opinion's conclusion that the pipeline will not jeopardize the rusty patched bumble bee (RPBB) in Bath County, Virginia was arbitrary and capricious because it runs counter to available evidence, relies on data without providing a meaningful basis for that reliance, fails to consider the species’s status as a whole, and fails to consider the pipeline’s impacts on RPBB recovery. Furthermore, the Biological Opinion's finding that the clubshell's continued survival will not be jeopardized by the pipeline construction was not in accordance with the law and failed to consider important aspects of the issue before the agency. The court also held that the Biological Opinion failed to create enforceable take limits for the Indiana bat and the Madison Cave isopod. Accordingly, the court vacated the 2018 Biological Opinion and Incidental Take Statement. View "Defenders of Wildlife v. U.S. Department of the Interior" on Justia Law

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The Sanitary Board challenged the EPA's decision disapproving a revised standard for the receiving waters of the Board's wastewater treatment facility along the Kanawha River. The district court dismissed the Administrative Procedure Act (APA) claims as moot following the issuance of a new permit to the Board.The Fourth Circuit affirmed the district court's judgment in favor of the EPA on the merits, finding that the agency did not violate the APA. The court held that, on the record, it was evident that the EPA reached a justified conclusion and its decision was not arbitrary, capricious, nor contrary to law. In this case, the EPA employed the scientific expertise and grounded judgment that the Clean Water Act contemplates. View "Sanitary Board of the City of Charleston v. Wheeler" on Justia Law

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SOS challenged the agencies' decision to replace a segment of North Carolina Highway 12 (NC-12) with a bridge across the Pamlico Sound. The Fourth Circuit affirmed the district court's grant of the agencies' motion for summary judgment, holding that they did not violate the National Environmental Policy Act (NEPA) or the Department of Transportation Act (DTA) when they approved the bridge. In this case, the agencies were not required to prepare a supplemental environmental impact statement to consider the alignment of the Jug-Handle Bridge or to consider beach nourishment alternatives; the agencies adequately considered the effects of construction traffic as a result of the Jug-Handle Bridge in the 2016 record of decision; and the agencies' choice of the Jug-Handle Bridge was not impermissibly predetermined. The court also affirmed the district court's denial of SOS's motion to amend its complaint. View "Save Our Sound OBX, Inc. v. North Carolina Department of Transportation" on Justia Law