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

Mountain Valley Pipeline, LLC (‘‘MVP’’) submitted an application requesting both a Virginia Water Protection individual permit (“VWP Permit”) from Virginia’s Department of Environmental Quality (“DEQ”) and the State Water Control Board (the “Board”) (collectively, “the Agencies”) and a certification from the United States Army Corps of Engineers (“Army Corps”) pursuant to Section 404 of the Clean Water Act (“CWA”) to build a pipeline. After an extensive review of MVP’s application, the Board adopted DEQ’s recommendation to approve MVP’s application. Petitioners filed this action against the Agencies and several individuals associated with the Agencies (collectively, “Respondents”), asking the court to review the Agencies’ decision.   The Fourth Circuit denied the petition for review, concluding that Agencies’ decision to grant MVP’s application was neither arbitrary nor capricious. The court explained that Petitioners’ argument that the Agencies failed to consider whether the Pipeline will comply with Virginia’s narrative water quality standard is belied by the record. DEQ addressed this issue in its responses to the public comments, in which it listed a host of conditions that it placed on the VWP Permit to “ensure that Virginia’s water quality is protected both during and after construction.” The court further explained that the DEQ described the indicators it uses to measure water quality, which Petitioners have not challenged. Accordingly, the court found it is clear from the record that DEQ considered a variety of factors in determining that the construction and operation of the Pipeline would comply with Virginia’s narrative water quality standard. View "Sierra Club v. State Water Control Board" on Justia Law

Plaintiffs—North Carolina Wildlife Federation and No Mid-Currituck Bridge-Concerned Citizens and Visitors Opposed to The Mid-Currituck Bridge (a community organization) sued the North Carolina Department of Transportation and the Federal Highway Administration (together, “the agencies”) —asserting that the agencies violated the National  Environmental Policy Act (“NEPA”) in approving a bridge project. Specifically, the NEPA provides that for an action “significantly affecting the quality of the human environment,” the Act requires an agency to prepare a detailed Environmental Impact Statement (“EIS”). The district court granted summary judgment for Defendants.   The Fourth Circuit affirmed. The court explained that Plaintiffs fault the agencies for glossing over the environmental impact of the extra 2,400 units that would be constructed under the bridge scenario. They claim that the EIS “made no attempt to evaluate the effect of the Toll Bridge’s additional development on the habitat, wildlife, and natural resources of the Outer Banks.” But the EIS does adequately account for this added development. The EIS noted that a bridge would likely lead to an increase in day visitors, which could lead to more beach driving. More beach driving may “increase the likelihood of collisions” with wild horses on the beaches, but would have “no effect on threatened and endangered species. The agencies also found no “appreciable improvement” in water quality under the no-build and existing roads scenarios. The agencies’ no-build baseline properly reflected the lower level of development that would result without the toll bridge. The agencies didn’t mislead the public about this fact. In sum, the agencies’ consideration of the no-build alternative did not violate the Act. View "No Mid-Currituck Bridge-Concerned Citizens v. North Carolina Department of Transportation" on Justia Law

Plaintiffs, a group of seventeen environmental organizations, sued the Council on Environmental Quality in July 2020 related to the Trump Administration’s promulgation of a final rule that affected how federal agencies would conduct reviews under the National Environmental Policy Act. On appeal the issue is whether the district court had jurisdiction to consider this particular challenge, as Plaintiffs have chosen to frame it, at this stage.   The Fourth Circuit agreed with the district court that it did not have jurisdiction. The court explained that Plaintiffs argue that forcing them to litigate their claims one project at a time will be time- and resource-intensive, for them and for the courts. Certainly, it would be more efficient for the parties and the courts if the court could adjudicate the 2020 Rule in one preemptive fell swoop. But such efficiency concerns cannot generate jurisdiction. They just will need to bring such a challenge under circumstances where they can present evidence sufficient to support federal-court jurisdiction. View "Wild Virginia v. Council on Environmental Quality" on Justia Law

“Arabella Farm”, is bounded by three bodies of water—Clearwater Branch, Peach Orchard Branch, and an unnamed tributary of the Eastatoe River. Arabella Farm began clearing 20 acres of land to create its venue. The South Carolina Department of Health and Environmental Control (Department) conducted an inspection to evaluate the farm’s compliance with the National Pollutant Discharge Elimination System (NPDES) program. Defendants’ claimed its work fell within an agricultural exemption to the Clean Water Act’s requirements.   Naturaland Trust and Trout Unlimited (collectively “the conservationists”)—non-profit organizations dedicated to conserving land, water, and natural resources—sent a notice of intent to sue letter to Arabella Farm. As the statute requires, the letter detailed the alleged violations of the Clean Water Act. The district court dismissed the conservationists’ complaint.   The Fourth Circuit reversed the district court’s ruling. The court held that the district court erred in concluding that the diligent prosecution bar precluded the conservationists’ federal claims. The court explained that the Department’s notice of alleged violation was enough to commence an action that was comparable to one brought under federal law. That notice invited Arabella Farm to an informal, voluntary, private conference with the Department to discuss allegedly unauthorized discharges. Thus, because the Department had not yet commenced an action when the conservationists filed their citizen suit, the diligent prosecution bar does not preclude them from pursuing a civil penalty action. Further, the court held that the district court erred in concluding that Plaintiff was not permitted to sue under the Clean Water Act. View "Naturaland Trust v. Dakota Finance LLC" on Justia Law

Environmental nonprofit organizations challenged the Fish and Wildlife Service’s 2020 Biological Opinion and Incidental Take Statement (BiOp) for the Mountain Valley Pipeline. The Endangered Species Act, 16 U.S.C. 1536(a)(2), requires that whenever an agency action “may affect listed species,” the agency must formally consult with the Fish and Wildlife Service, which must formulate a “biological opinion” on whether that action, in light of the relevant environmental context, “is likely to jeopardize the continued existence of [those] species.” The plaintiffs alleged that the agency failed to adequately consider the project’s environmental context while analyzing impacts to two species of endangered fish, the Roanoke logperch and the candy darter.The Fourth Circuit vacated the approval. Serious errors at steps two and three of the jeopardy analysis render the 2020 BiOp arbitrary and capricious. The court recognized that its decision will further delay the completion of an already mostly finished Pipeline, but reiterated the Act’s directive to: “halt and reverse the trend toward species extinction, whatever the cost.” In effect, the Fish and Wildlife Service attempted to pass off its summary of range-wide conditions and threats as an action-area analysis. Caguely referring to the “destruction and modification of habitat” within the action area, without explaining the specific causes or extent of this local degradation, leaves unclear at what the baseline condition for the logperch might actually be. View "Appalachian Voices v. United States Department of the Interior" on Justia Law

In two consolidated cases, petitioners seek review of the Forest Service and BLM's decisions to allow the Mountain Valley Pipeline to cross three and a half miles of the Jefferson National Forest in Virginia and West Virginia. The Fourth Circuit previously vacated the agencies' records of decision (RODs) because the Forest Service and the BLM failed to comply with the National Environmental Policy Act (NEPA), the National Forest Management Act (the NFMA), and the Mineral Leasing Act (the MLA). Petitioners argue that the agencies' renewed RODs after remand also violate NEPA, the NFMA, and the MLA.The Fourth Circuit concluded that the Forest Service and the BLM inadequately considered the actual sedimentation and erosion impacts of the Pipeline; prematurely authorized the use of the conventional bore method to construct stream crossings; and failed to comply with the Forest Service's 2012 Planning Rule. Accordingly, the court granted the petitions for review as to those errors; denied the petitions for review in regard to petitioners' remaining arguments about the predecisional review process, alternative routes, and increased collocation; vacated the decisions of the Forest Service and the BLM; and remanded for further proceedings. View "Wild Virginia v. United States Forest Service" on Justia Law

The federal government used the 433-acre Institute Facility for synthetic rubber production during World War II. In 1947, UCC purchased the Facility and began manufacturing hydrocarbon and agricultural products. In 1986-2015, the property was owned and operated by various companies, before ownership returned to UCC, a subsidiary of Dow Chemical. In 1984, UCC applied for a permit to operate hazardous waste management units, under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901. The EPA published a report documenting groundwater contamination at the Facility. Since 1988, as part of the permitting process, the EPA instituted corrective actions at the Facility to address groundwater contamination. In 2013, the West Virginia Department of Administration transferred land to West Virginia State University (WVSU), so that WVSU was immediately adjacent to the Facility. WVSU refused to sign an environmental covenant agreeing not to use the groundwater and ultimately filed suit in state court, asserting state and common law claims and seeking remedial measures, beyond those recommended by the EPA.Defendants removed the action to federal court invoking federal question jurisdiction, diversity jurisdiction, and federal officer jurisdiction, 28 U.S.C. 1331, 1332, 1441, 1442, and 1446. The Fourth Circuit affirmed a remand to state court. Defendants were not “acting under” the “subjection, guidance, or control” of the EPA. There is no federal question jurisdiction, 28 U.S.C. 1331, over WVSU’s state claims because they neither challenge an EPA-directed CERCLA “cleanup” under nor arise from RCRA remedial measures and, thus, are not preempted. View "West Virginia State University Board of Governors v. The Dow Chemical Co." on Justia Law

In 2008, Zito purchased a beachfront house and lot on Nags Head (a barrier island). In 2016, the house burned down. The lot is governed by North Carolina’s Coastal Area Management Act (CAMA): buildings with less than 5,000 square feet must be set back at least 60 feet or 30 times the local rate of erosion, whichever is farther, from the vegetation line. Buildings of less than 2,000 square feet built before June 1979 fall under a grandfather provision, requiring a setback of only 60 feet from the vegetation line. The Zito property qualifies for the grandfather provision but is set back only 12 feet from the vegetation line. In 2018, the coastline by the property eroded at an average rate of six feet per year. Experts indicate that coastal erosion and rising sea levels could cause the property to be underwater by 2024. The permit officer denied Zito’s application to rebuild The Coastal Resources Commission denied a variance, informing Zito of the right to appeal in state superior court.Zito filed suit in federal court, arguing that CAMA’s restrictions amounted to an unconstitutional taking. The Fourth Circuit affirmed the dismissal of the suit. The Commission qualifies as an arm of the state subject to the protection of sovereign immunity; the Eleventh Amendment bars Fifth Amendment taking claims against states in federal court where the state’s courts remain open to adjudicate such claims. View "Zito v. North Carolina Coastal Resources Commission" on Justia Law

North Carolina filed suit in state court seeking recovery of an unpaid civil penalty against the Marine Corps for failing an air quality compliance test. After the federal government defendants removed to federal court, the district court dismissed the case.The Fourth Circuit affirmed in part and reversed in part, holding that the Clean Air Act does not preclude removal but does waive sovereign immunity as to the penalty at issue here. The court concluded that the United States properly removed this suit under the federal officer removal statute and rejected North Carolina's contention that the Clean Air Act's state suit provision, 42 U.S.C. 7604(e), implicitly carves out a narrow exception to removal that precludes federal adjudication of this federal immunity defense. Rather, these two statutes are capable of coexistence and, contrary to North Carolina's argument, section 7604(e) does not require actions brought in state court to remain there. The court also concluded that the Clean Air Act unambiguously and unequivocally waives the United States' sovereign immunity as to all civil penalties assessed pursuant to state air pollution law, including punitive penalties like the one at issue here. The court remanded for further proceedings. View "North Carolina v. United States" on Justia Law

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