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

Articles Posted in Environmental Law
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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

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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

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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

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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

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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