DEFENDERS OF WILDLIFE; SIERRA CLUB; VIRGINIA WILDERNESS COMMITTEE, Petitioners,
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
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)
Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER,
Asheville, North Carolina, for Petitioners.
William McArdle, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondents. Brooks Meredith Smith,
TROUTMAN SANDERS, LLP, Richmond, Virginia, for Intervenor.
Burnette, J. Patrick Hunter, Asheville, North Carolina,
Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER,
Charlottesville, Virginia, for Petitioners.
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.
GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
Gregory, Chief Judge.
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.
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
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.
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.
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).
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).
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.
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).
this framework in mind, we turn to the facts underlying this
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.
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.
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).
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.
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.
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.
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.
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
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
jurisdiction under the Natural Gas Act. 15 U.S.C. §
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).
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).
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
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).
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.
Rusty Patched Bumble Bee
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.
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.
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
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
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.
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