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Week 40 (2018)

Week of October 1, 2018 through October 5, 2018

United States v. Gibbs (Wynn 10/5/2018): The Fourth Circuit vacated an earlier panel order and majority opinion after the underlying controversy over a defendant’s sentence was mooted by his release from prison. To prevent its unreviewable decision from spawning legal consequences and because the defendant could no longer obtain meaningful relief, the Court vacated the order denying the defendant’s rehearing, thereby preventing the otherwise forthcoming concurring and dissenting opinions on the matter. Full opinion

Highlight Case

Sierra Club v. United States Army Corps of Engineers, No. 18-1173  

Decided: October 2, 2018

The Fourth Circuit found the the U.S. Army Corps of Engineers (the “Corps”) lacked the authority to substitute one requirement of a West Virginia regulation for another distinct requirement.

Petitioners, Sierra Club, argued that the Mountain Valley Pipeline (the “Pipeline”) could not proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”). Sierra Club argued that in issuing its verification, the Corps improperly imposed a condition—requiring use of a “dry cut” method for constructing four river crossings—in lieu of a special condition imposed by the State of West Virginia, J.A. 232—that “[i]ndividual stream crossings must be completed in a continuous, progressive manner within 72 hours,” J.A. 43—as part of its certification of NWP 12. The Court agreed, finding that the Corps lacked authority to substitute the “dry cut” requirement “in lieu of” West Virginia’s 72-hour temporal restriction.

Thus, the Fourth Circuit vacated, in its entirety, the Corps’ verification of the Pipeline’s compliance with NWP 12. However, in its order, the Court specifically reserved judgment on the parties’ remaining arguments until its forthcoming opinion.

Full Opinion

Wilson Daniel