Defenders of Wildlife v. U.S. Dep't of the Interior

• Decision Date: 26 July 2019
• Docket Number: No. 18-2090,18-2090
• Citation: 931 F.3d 339
• Parties: DEFENDERS OF WILDLIFE; Sierra Club; Virginia Wilderness Committee, Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish and Wildlife Service, an agency of the U.S. Department of the Interior; Jim Kurth, in his official capacity as Acting Director; Paul Phifer, in his official capacity as Assistant Regional Director, Ecological Services, Responsible Official, Respondents, Atlantic Coast Pipeline LLC, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

931 F.3d 339

DEFENDERS OF WILDLIFE; Sierra Club; Virginia Wilderness Committee, Petitioners,

v.UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish and Wildlife Service, an agency of the U.S. Department of the Interior; Jim Kurth, in his official capacity as Acting Director; Paul Phifer, in his official capacity as Assistant Regional Director, Ecological Services, Responsible Official, Respondents,Atlantic Coast Pipeline LLC, Intervenor.

No. 18-2090

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2019

Decided: July 26, 2019

ARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, Asheville, North Carolina, for Petitioners. Kevin William McArdle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Brooks Meredith Smith, TROUTMAN SANDERS, LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Petitioners. Eric Grant, Deputy Assistant Attorney General, Andrew C. Mergen, Avi Kupfer, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Tony Sullins, S. Amanda Bossie, Office of the Solicitor, UNITED STATES DEPARTMENT OF THE INTERIOR, Washington, D.C., for Federal Respondents. Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.

Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.

GREGORY, Chief Judge:

In 2017, the U.S. Fish and Wildlife Service ("FWS") issued a Biological Opinion in connection with the proposed Atlantic Coast Pipeline, which will transport natural gas from West Virginia to Virginia and North Carolina. That Opinion, required by the Endangered Species Act, concluded that the proposed pipeline will not jeopardize the continued existence of several endangered and threatened species that are likely to be impacted by pipeline construction. As relevant here, the Biological Opinion concluded that the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell, Indiana bat, or Madison Cave isopod. However, because FWS anticipated the incidental taking, i.e. , harassing or killing, of those species, the agency issued an Incidental Take Statement with its Biological Opinion, setting limits on the number of each species that the pipeline could legally take.

Petitioners challenged the take limits imposed by the 2017 Incidental Take Statement. After reviewing that agency action, we determined that FWS’s take limits were arbitrary and capricious. Accordingly, we vacated the Incidental Take Statement.

Shortly after our decision, FWS issued a new Biological Opinion and Incidental Take Statement. Petitioners now challenge the findings of both of those agency actions. Specifically, Petitioners assert that FWS improperly determined that pipeline construction will not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the validity of the take limits imposed for the Indiana bat and the Madison Cave isopod. Because we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to correct the deficiencies in the take limits that we identified in the previous appeal, we grant the petition and vacate the 2018 Biological Opinion and Incidental Take Statement.

I.

Before we turn to the relevant facts of this case, we review the statutory context in which this appeal arises. The Endangered Species Act ("ESA") was enacted "to protect and conserve endangered and threatened species and their habitats." Sierra Club v. U.S. Dep’t of the Interior , 899 F.3d 260, 268 (4th Cir. 2018) (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 651, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ). In line with that purpose, the ESA prohibits federal agencies from engaging in any action "likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). The Act also prohibits the "take" of endangered and threatened species, i.e. , the harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting of a listed species, or any "attempt to engage in such conduct." Id. §§ 1532(19), 1538(a)(1)(B). A person harms or harasses a listed species when she disrupts that species’s "normal behavioral patterns" or causes indirect injury by "habitat modification." Sierra Club , 899 F.3d at 269 ; 50 C.F.R. § 17.3.

"Any person who knowingly takes an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment." Sierra Club , 899 F.3d at 269 (internal quotation marks omitted) (quoting Bennett v. Spear , 520 U.S. 154, 170, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ); see 16 U.S.C. § 1540(a), (b). But a person may escape liability for taking a listed species when "such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).

To comply with the ESA, federal agencies faced with permit applications for construction projects must ensure, in consultation with the U.S. Fish and Wildlife Service ("FWS"), that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of" a listed species or "result in the destruction or adverse modification" of designated critical habitat. 16 U.S.C. § 1536(a)(2). Formal consultation with FWS is required when an agency proposing to act ("action agency") determines that its action "may affect" a listed species or critical habitat. 50 C.F.R. § 402.14(a).

When consultation has concluded, FWS issues a Biological Opinion ("BiOp") addressing whether the proposed action "is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat." Id. § 402.14(g)(4), (h)(3). A proposed action jeopardizes the continued existence of a species when it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." Id. § 402.02. And a proposed action destroys or adversely modifies a species’s critical habitat when it directly or indirectly alters it in a way that "appreciably diminishes the value of critical habitat for the conservation of a listed species." Id.

If FWS concludes that a proposed project is not likely to jeopardize the continued existence of a listed species but will result in the take of some members of that species, the consulting party may lawfully take those members only if it first obtains a valid Incidental Take Statement ("ITS") from FWS setting enforceable limits on the quantity that may be taken. 16 U.S.C. § 1536(b)(4) ; 50 C.F.R. § 402.14(g)(7), (i). Both the BiOp and ITS are formulated during the formal consultation process with FWS, and the ITS is issued with, and supplements, the BiOp. See 50 C.F.R. § 402.14(g), (i)(1) ; Or. Nat. Res. Council v. Allen , 476 F.3d 1031, 1036 (9th Cir. 2007).

With this framework in mind, we turn to the facts underlying this appeal.

II.

The Atlantic Coast Pipeline ("ACP") is a proposed 600-mile pipeline designed to transport natural gas from West Virginia to Virginia and North Carolina. J.A. 816.

Construction of the pipeline will require a 125-foot right-of-way that will disturb 11,776 acres of land. Construction will also require additional temporary workspace and the use of access roads. To secure these spaces, and during construction itself, certain forested areas will need to be cleared of trees, ground will be displaced, and sediment will be deposited into river waters.

In 2015, Intervenor Atlantic Coast Pipeline, LLC ("Atlantic") applied to the Federal Energy Regulatory Commission ("FERC") for a certificate of public convenience and necessity for the ACP. That certificate, required under the Natural Gas Act, serves as the grant of final approval to construct the pipeline. 15 U.S.C. § 717f. The Natural Gas Act also requires Atlantic to obtain "any permits, special use authorizations, certifications, opinions, or other approvals as may be required under Federal law." N.Y. Dep’t of Envtl. Conservation v. FERC , 884 F.3d 450, 452–53 (2d Cir. 2018) (quoting 15 U.S.C. § 717n(a)(1), (2) ). As the lead agency, FERC is responsible for coordinating all applicable federal authorizations. 15 U.S.C. § 717n(b)(1).

After Atlantic submitted its application to FERC, it was determined that pipeline construction may affect several threatened or endangered species. Therefore, FERC initiated formal consultation with FWS to determine whether the pipeline would likely jeopardize the continued existence of those species. See 50 C.F.R. § 402.14(a).

On October 13, 2017, FERC issued a certificate of public convenience and necessity for the ACP. FERC conditioned its approval of the pipeline on Atlantic’s receipt of all state and other federal authorizations required for the project, including the pending authorization from FWS.

On October 16, 2017, FWS issued a BiOp, concluding that the ACP is not likely to jeopardize the existence of any of the affected listed species. FWS also issued an ITS because it determined that pipeline construction was likely to result in the take of members of six of those species. The ITS did not set numeric take amounts for five of the species to be taken. Instead, it relied on habitat surrogates, setting take limits such as "small percent of," "majority," and "all." J.A. 871–74.

In January 2018, Petitioners sought review of the ITS. Sierra Club v. U.S. Dep’t of the Interior , 899 F.3d 260 (4th Cir. 2018). They challenged only the habitat surrogates used by FWS. Id. at 270. Petitioners did not challenge the BiOp’s determination that ACP...