Virginia Lawyers Weekly VA Lawyers Weekly
The Sierra Club and other environmental groups failed to persuade the court that Virginia erred in issuing permits required for the construction of the Atlantic Coast natural gas pipeline.
Background
The Atlantic Coast Pipeline is a proposed interstate natural gas pipeline that will be approximately 604 miles long and 42 inches in diameter and will carry natural gas from Harrison County, West Virginia, to the eastern portions of Virginia and North Carolina. To obtain approval for construction, Atlantic had to comply with federal and state laws and regulations.
Relevantly here, the Natural Gas Act allows states to regulate the environmental impacts of pipelines under the CWA. Virginia exercises this regulatory authority through the State Water Control Board. The Virginia Department of Environmental Quality serves as the board’s staff, and the board may assign DEQ tasks and delegate DEQ the authority to make decisions.
On Nov. 9, 2017, the DEQ recommended that the board approve a Section 401 Upland Certification of the project. On Dec. 20, 2017, the board issued the Upland Certification for the ACP with conditions. Petitioners timely filed two petitions for review.
Analysis
The respondents and intervenor argue as an initial matter that petitioners do not have standing to litigate this petition for review. We disagree.
We have previously held that the denial of an opportunity, in this case, to have the project vetoed or have additional restrictions can constitute an injury-in-fact. In addition, petitioners successfully establish traceability and redressability given that we could vacate the board’s decision and determine that its decision was not based on a reasonable assurance and instead was arbitrary and capricious. Petitioners’ injuries could be remedied if the board required Atlantic to take additional measures that would address petitioners’ grievances. Petitioners have demonstrated the requirements for standing.
The court next concludes that the state agencies’ decision not to conduct a combined effect analysis does not render their issuance of a Section 401 Upland Certification arbitrary and capricious for three reasons. The Upland Certification is not required to cover combined effect analysis because other parts of the regulatory process sufficiently address that subject matter. Second, state agencies have broad discretion when developing the criteria for their Section 401 Certification. Nothing in Section 401 restricts states to a single certificate proceeding, and Section 401 does not require states to undertake a single cumulative review of all possible impacts in a single certification. Finally, the state agencies’ failure to explicitly consider the combined effects of multiple areas of construction within individual watersheds such as the Chesapeake Bay watershed and the Chesapeake Bay Total Maximum Daily Load did not render their decision arbitrary and capricious.
Turning to petitioners’ next argument, the court does not find that the state agencies’ reasonable assurance determination to be arbitrary and capricious simply because they relied on existing Virginia water quality standards and regulations to effectively address concerns regarding water quality deterioration. Additionally, the court does not find that the state agencies’ failure to conduct a separate antidegradation review before issuing its Upland Certification renders their decision arbitrary and capricious. Finally, the court finds that the state agencies’ treatment of karst terrain was not arbitrary or capricious because of the conditions imposed on the Section 401 Upland Certification.
Petition for review denied.
Appalachian Voices v. State Water Control Board, Appeal No. 18-1077, 18-1079, Jan. 14, 2019. 4th Cir. (Gregory), from Federal Energy Regulatory Commission. Benjamin Alan Luckett for Petitioners, Toby Jay Heytens for Respondents, Brooks Meredith Smith for Intervenor. VLW No. 019-2-016, 23 pp.
