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.
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
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 Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (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.
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 Cty. v. Washington Dep't of Ecology, 511 U.S. 700, 712, 114 S.Ct. 1900, 128 L.Ed.2d 716 (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, 126 S.Ct. 1843, 164 L.Ed.2d 625 (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, 114 S.Ct. 1900.
As for appellate review of such a state certificate, § 717r of the NGA provides:
15 U.S.C. § 717r(d)(1). It is undisputed here that the Project is subject to 15 U.S.C. § 717f.
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).
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."
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 Project, DEQ came to the conclusion that there was an analytical gap in the
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 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.
"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."
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 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 § 62.1-44.15:55(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
MVP filed its application for a certificate of public convenience and necessity with FERC on October 23, 2015.
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.
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:
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."
The EIS also recognized that flooding during construction was a potential concern. The EIS stated:
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:
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.
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 4 days) and
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:
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:
J.A. 624-25 (Appendix C to the Certificate).
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").
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 quality standards, provided permittees comply with all applicable Section 401 conditions." J.A. 452.
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.
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 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.
As noted, the certification process required Virginia to determine that it had "reasonable assurance" that the Project would "not violate applicable water quality
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 and process that is designed to ensure that Virginia's water quality is protected." J.A. 113.
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 preconstruction 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 Projec — 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 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,
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, 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
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. 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.)."
On December 8, 2017, and December 18, 2017, separate petitions for review were
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.
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 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, 133 S.Ct. 2652, 186 L.Ed.2d 768 (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, ___ U.S. ___, 136 S.Ct. 1540, 1547-48, 194 L.Ed.2d 635 (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, 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
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,
Id. (emphasis in original) (citing FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (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 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
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 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 reissue 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.
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, 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
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.
We review Virginia's Section 401 certification under the arbitrary-and-capriciousness standard.
Id. at 192 (internal quotation marks and citations omitted).
Petitioners argue, for two reasons, that the State Agencies acted arbitrarily and
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 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., 151 Wn.2d 568, 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 certification. See 33 U.S.C. § 1341(d) ("Any certification provided under this section shall set forth any. . . monitoring requirements necessary to
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 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 are located"). Especially given this reality, we find nothing unreasonable in DEQ's interpretation of the policy.
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 here and was limited in the types of evidence on which it could base its reasonable-assurance
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." 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."
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.
Natural Gas — Pipes and Pipelines — Construction, 2018 Virginia Laws Ch. 636 (S.B. 950).
9 Va. Admin. Code § 25-210-130(H).
PUD No. 1 of Jefferson Cty. v. Washington Dep't of Ecology, 511 U.S. 700, 718, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (citations omitted).
J.A. 771.
J.A. 48.