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Defenders of Wildlife v. United States Department of Interior

United States Court of Appeals, Fourth Circuit

July 26, 2019

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.

          Argued: May 9, 2019

          On Petition for Review of the United States Fish and Wildlife Service's Biological Opinion and Incidental Take Statement. (CP15-554-000; CP15-554-001; CP15-555-000)


          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.

          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.


         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 (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 (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.


         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 construction will not jeopardize the listed species. Id. at 266, 270.

         In May 2018, we vacated the ITS. Sierra Club v. U.S. Dep't of the Interior, 722 Fed.Appx. 321, 322 (4th Cir. 2018). As we later explained in our August 6, 2018, opinion, FWS had failed to create proper habitat surrogates, failed to explain why numeric take limits were not practical, and failed to create enforceable take limits for the clubshell (a mussel), rusty patched bumble bee, Madison Cave isopod (a crustacean), Indiana bat, and northern long-eared bat. Sierra Club, 899 F.3d at 275-81.

         On August 23, 2018, FERC reinitiated formal consultation with FWS to correct the ITS and because of "new information . . . for some of the species." J.A. 1101. Less than three weeks later, on September 11, 2018, FWS issued a new BiOp and ITS. As relevant here, the 2018 BiOp concluded that the ACP will not jeopardize the survival and recovery of the rusty patched bumble bee ("RPBB"), clubshell, Indiana bat ("Ibat"), or the Madison Cave isopod ("MCI"). The ITS set take limits for each of these species.

         Petitioners now challenge the BiOp's conclusion that the ACP will not jeopardize the RPBB or the clubshell. Petitioners also challenge the take limits imposed for the Ibat and MCI. We stayed the 2018 BiOp and ITS pending our review of this petition.

         We have jurisdiction under the Natural Gas Act. 15 U.S.C. § 717r(d)(1).


         We review the 2018 BiOp and ITS under the default standard of the Administrative Procedure Act ("APA") and ask whether the challenged actions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 496‒97 (2004) (quoting 5 U.S.C. § 706(2)(A)); see also Friends of Back Bay v. U.S. Army Corps of Eng'rs, 681 F.3d 581, 586-87 (4th Cir. 2012). Agency action is arbitrary and capricious "if the agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Defs. of Wildlife v. N.C. Dep't of Transp., 762 F.3d 374, 396 (4th Cir. 2014) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)). In short, "we must ensure that the agency has examined the relevant data and articulated a satisfactory explanation for its action." Id. (internal quotation marks and brackets omitted) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)). "Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). But we will vacate agency action if it is not "based on a consideration of the relevant factors" or where "there has been a clear error of judgment." Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (citation omitted).


         In preparing its BiOp, FWS was required to use "the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). FWS's "failure to do so violates the APA." San Luis & Delta-Mendoza Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014). The purpose of the best-available-data standard is to ensure that FWS does not act based on "speculation and surmise." Id. (citing Bennett v. Spear, 520 U.S. 154, 176 (1997)). Under this standard, FWS may decide which data and studies are the best available, and its decision is reviewed under a deferential standard. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1265 (11th Cir. 2009). The agency is not required to conduct new studies when evidence is available upon which a determination can properly be made. Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir. 2000).

         This does not mean, however, that FWS is barred from requesting new studies when available data is inadequate to prepare a BiOp and render a jeopardy determination. On the contrary, FWS regulations for the ESA provide that "[t]he federal agency requesting formal consultation"-in this case FERC-"shall provide [FWS] with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat." 50 C.F.R. § 402.14(d) (emphasis added). And the regulations further provide that "[w]hen [FWS] determines that additional data would provide a better information base from which to formulate a biological opinion, the Director may request an extension of formal consultation and request that the Federal Agency"-again, FERC in this case- "obtain additional data to determine how or to what extent the action may affect listed species or critical habitat." Id. § 402.14(f). Accordingly, federal law expressly authorizes FWS to request new survey data from a consulting agency if the existing data is not "adequate" to determine the effect of the project.

         The best-available-data standard also means that FWS is not free to disregard other "available biological information" that "is in some way better than the evidence [it] relies on." Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th Cir. 2006) (alteration in original) (citations omitted). Rather, FWS must seek out and consider all existing scientific data relevant to the decision it is tasked with making. Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d 428, 436 (8th Cir. 2004).

         After reviewing the agency's 2018 BiOp and ITS, we agree with Petitioners that FWS has again acted arbitrarily. We address in detail the agency's decisions with respect to each listed species in turn.

         A. Rusty Patched Bumble Bee

         In their previous appeal, Petitioners challenged the take limits imposed by FWS on the RPBB. We found that those limits violated the Endangered Species Act. Sierra Club, 899 F.3d at 277. Now, Petitioners challenge the agency's finding in the BiOp that the ACP will not jeopardize the RPBB in the first instance.

         Some background on the RPBB and the model used by FWS in assessing impacts on the species is helpful here. The RPBB is a colonial bee species with an annual cycle. That cycle begins in early spring, when nests or colonies are started by solitary queen bees. Those nests, although occasionally observed above ground, typically are located underground, in abandoned rodent nests or other similar cavities. Throughout the summer, the foundress queen bees produce worker bees. Worker bees are responsible for foraging for food for the colony. The health of the colony depends on the number of workers foraging and the abundance of foraging habitat. RPBB colony sizes are larger than those of other bumble bees, and a healthy colony is composed of up to 1, 000 worker bees in a season. Endangered and Threatened Wildlife and Plants; Endangered Species Status for Rusty Patched Bumble Bee, 82 Fed. Reg. 3186, 3187 (Jan. 11, 2017). In late summer and early fall, the queen bee produces male drones and new queens. At the end of the cycle, male drones and the new queens mate, while the foundress queen and workers die. The new queens then overwinter, or hibernate. Overwintering occurs underground, primarily in soft-soil and leaf-litter chambers that the queens form in forested areas. After overwintering, these queens emerge in the spring, and the cycle begins again.

         Historically, the RPBB was "abundant and widespread, with hundreds of populations across an expansive range." 82 Fed. Reg. at 3188. Since the late 1990s, however, RPBB populations have plummeted by nearly 90 percent. When the species was listed as endangered in January 2017, 95% of the 103 known populations had been documented by 5 or fewer bees. Id. at 3205. As FWS has recognized, the RPBB "is so imperiled that every remaining population is important for the continued existence of the species." J.A. 941. Without affirmative protection, all but one RPBB ecoregion are predicted to be extinct within 5 years, and that one remaining ecoregion would cease to exist within 30 years.

         One contributing factor to the RPBB's swift decline is that RPBBs suffer, as do other bee colonies, from a phenomenon known as the diploid male vortex. This phenomenon occurs when related bees mate, leading to a higher chance of haplodiploidy- a condition where 50% of the haploid worker bees are replaced by diploid males that do not contribute food resources to the colony. This, in turn, leads to a higher likelihood of colony collapse. Many RPBB populations are victimized by other stressors as well, including pathogens, pesticides, habitat loss and degradation, and climate change.

         Concurrent with its preparation of the BiOp for the ACP project, FWS developed guidelines for federal projects that may affect the RPBB's continued existence. J.A. 514; J.A. 1110. Under those guidelines, FWS uses a model to identify areas that are likely to be populated by RPBBs, areas referred to as "high potential zones." J.A. 517-18. The boundaries of those high potential zones are delineated using extant populations data (species observation data that is less than 10 years old), estimated foraging and dispersal distances of the bees, and surrounding vegetation types. While the species may be present elsewhere, the modeled high potential zones are thought to "provide a reasonable basis for describing where the species is likely to be present and where federal agencies should consult with [ ] FWS to evaluate the potential effects of their actions." J.A. 518. If a project area overlaps with a habitat suitable to RPBBs in a high potential zone, the consulting agency has two options to determine actual bee presence: it may survey the area of overlap to verify the presence of RPBBs or it may choose to forgo a survey, in which case RPBB presence is assumed and consultation with FWS is required. J.A. 521.

         In its 2017 BiOp, FWS concluded that a 653-hectare high potential zone for the RPBB existed in Bath County, Virginia. This zone was calculated based on the sighting of one worker bee foraging in the George Washington National Forest along a pipeline access road. While FWS could not determine where the nest for the worker bee's colony was located and did not survey for that colony, it calculated the high potential zone based on average foraging distances of RPBB workers and the location of habitat suitable for nesting and overwintering queens. The 2017 BiOp acknowledged that "there is uncertainty regarding habitat use and distribution of the species during certain life stages and time periods." J.A. 840. The BiOp also explained that the "[s]tatus of colony and population in the [high potential zone] is unknown at this time because while the presence of a worker bee signifies the existence of a colony, [the agency had] no accurate way to assess the status of the local population." Id. Accordingly, in determining RPBB "distribution and habitat use," FWS relied on various "assumptions, based on the best available information." Id. One of those assumptions was that "RPBB activity (foraging, nesting, overwintering queens) [was] concentrated in the [high potential zone]." Id. Other assumptions related to the density of the RPBB population in Bath County. For example, FWS assumed that the one observed worker bee was part of a ...

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