No. 09-1539
COUNSEL
ARGUED: Jeffrey A. Lamken, BAKER BOTTS, LLP,
Washington, D.C., for Petitioners. Adam Dean Snyder,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Respondents. ON BRIEF:
G. Mark Cook, Jessica A. Fore, Adam J. White, Emil J. Barth,
BAKER BOTTS, LLP, Washington, D.C., for Petitioners.
Douglas F. Gansler, Attorney General of Maryland, Emily A.
Vainieri, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Respondents.
OPINION
HAMILTON, Senior Circuit Judge:
Pursuant to 19(d)(1) of the Natural Gas Act, 15 U.S.C.
717r(d)(1), we are petitioned by AES Sparrows Point LNG,
LLC and Mid-Atlantic Express Holdings, LLC (collectively
AES) to review the State of Maryland Department of the
Environments denial of a request for water quality certification pursuant to 401(a)(1) of the Clean Water Act, 33
U.S.C. 1341(a)(1), with respect to a proposed large-scale
liquefied natural gas marine import terminal and pipeline
project. For the reasons that follow, we deny the petition for
review.
I.
A.
The Project.
2.
The April 25, 2008 public notice was jointly issued with
FERC and also announced the availability of the Draft Environmental Impact Statement (the Draft EIS) for review and
comment.
4.
5.
D.
In the present action, AES petitions us for review of Marylands denial of its 401(a)(1) Certification Request. 15 U.S.C.
717r(d)(1) ("The United States Court of Appeals for the circuit in which a facility subject to section 717b of this title or
section 717f of this title is proposed to be constructed,
expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or
action of a . . . State administrative agency acting pursuant to
Federal law to issue, condition, or deny any permit, license,
concurrence, or approval . . . required under Federal law
. . . .").
II.
As a threshold matter, we first address Marylands claim
that, as a sovereign, it is immune from defending its denial of
AESs 401(a)(1) Certification Request in this court. Not surprisingly, AES responds that Maryland waived any potential
claim of sovereign immunity in connection with the present
petition for review by expressly consenting to defending, in
federal court, its decision to deny AESs 401(a)(1) Certification Request. Virginia v. Reinhard, 568 F.3d 110, 115 (4th
Cir. 2009) ("[A] state may waive its sovereign immunity if it
consents to suit in federal court."), petition for cert. filed,
(U.S. Oct. 28, 2009) (No. 09-529). In this regard, AES points
to the following language in Marylands written decision
denying AESs 401(a)(1) Certification Request: "Pursuant
to 717r(d)(1) of the Natural Gas Act, 15 U.S.C.
717r(d)(1), AES has the right to seek review of this decision
through a civil action filed with the United States Court of
Appeals for the Fourth Circuit." (J.A. 6).
We agree with AES. A State may waive its immunity to
suit in federal court "in the context of a particular federal program." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238
n.1 (1985). While the test for determining whether a State has
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IV.
AES first challenges Marylands denial of its 401(a)(1)
Certification Request as untimely, and therefore, not in accordance with law. In this regard, AES argues that Maryland
waived the water quality certification requirements of
401(a)(1) of the Clean Water Act with respect to the Project
by failing to grant or deny its 401(a)(1) Certification
Request within the one-year waiver period set forth in the
same statutory section. AESs argument is without merit.
In relevant part, 401(a)(1) of the Clean Water Act provides:
If the State . . . fails or refuses to act on a request for
[water quality] 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 with respect
to such Federal application. No license or permit
shall be granted until the certification required by
this section has been obtained or has been waived as
provided in the preceding sentence. No license or
permit shall be granted if certification has been
denied by the State . . . ."
33 U.S.C. 1341(a)(1) (emphasis added).
With respect to the date the one-year waiver period commenced regarding AESs 401(a)(1) Certification Request,
AES first contends that it commenced on January 9, 2007, the
date Maryland first received such request. Alternatively, AES
contends that, at the latest, the one-year waiver period commenced on April 14, 2008, the date of its last submission in
response to Marylands last request for additional information, prior to Marylands decision denying AESs 401(a)(1)
Certification Request on April 24, 2009. Marylands denial of
AESs 401(a)(1) Certification Request did not occur within
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AES argues this ground fails to pass muster under the arbitrary and capricious standard because the anticipated negative
effects identified by Maryland are unsupported by the record
evidence. In this regard, AES primarily argues that Marylands claim that thirty-feet is the depth at which no aquatic
life can survive in Baltimore Harbor is not supported by the
record evidence and is contrary to the Final EIS, which states
that "pioneering benthic invertebrates would likely colonize
the dredged area soon after completion of dredging. . . .
[C]onversion of shallow benthic habitat to deeper, channellike benthic habitat would not likely alter the benthic community in the vicinity of the proposed LNG terminal."4 (J.A.
1338). Additionally, AES claims that Marylands denial of its
401(a)(1) Certification Request is arbitrary and capricious
because Maryland had granted a similar request to BarlettaWillis, Inc. in 2005.
In reviewing Marylands denial of AESs 401(a)(1) Certification Request on the merits, we are mindful that the scope
of our review under the arbitrary and capricious standard is
narrow and highly deferential. Ohio Valley Envtl. Coalition v.
Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). "Especially in matters involving not just simple findings of fact but
complex predictions based on special expertise, a reviewing
court must generally be at its most deferential." Id. (quoting
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462
U.S. 87, 103 (1983)). Thus, as we recently explained:
In determining whether agency action was arbitrary or capricious, the court must consider whether
the agency considered the relevant factors and
whether a clear error of judgment was made.
Although this inquiry into the facts is to be searching
and careful, the ultimate standard of review is a nar4
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