US District Court Vacates Forest Service Approval of the Atlantic Coast Pipeline

US Fourth Circuit Court Throws Out Forest Service Approvals for the ACP

Article from the Allegheny Blue Ridge Alliance (ABRA), December 13, 2018

The Fourth Circuit Court of Appeals vacated on December 13 the U.S. Forest Service’s approval for the Atlantic Coast Pipeline (ACP) to cross two national forests and the Appalachian Trail. The Court’s 60-page opinion came on a case brought by several ABRA members and others that was argued on September 28 (see ABRA Update #200 for details).

The plaintiffs, represented by Southern Environmental Law Center, were Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

The Court concluded that the Forest Service’s decisions amending its Forest Plans and granting a Special Use Permit (SPU) for the ACP violate the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA), and that the Forest Service lacked statutory authority pursuant to the Mineral Leasing Act (MLA) to grant a pipeline right of way across the Appalachian National Scenic Trail. The Court granted the petition for review of the Forest Service’s SPU and its Record of Decision to amend the Forest Plans, as sought by the plaintiffs, vacated those the Forest Service’s decisions and remanded the case to the Forest Service “for further proceedings consistent with this opinion.”

In its opinion, the Court detailed how the Forest Service initially expressed serious skepticism about the ACP’s ability to be constructed through the steep slopes of the central Appalachian mountains in West Virginia and Virginia. In an October 24, 2016 letter to the Atlantic Coast Pipeline, LLC (Atlantic), the Court noted that the Forest Service had requested ten site-specific stabilization designs for selected areas of challenging terrain to demonstrate the effectiveness of Atlantic’s proposed steep slope stability program, which Atlantic called the “Best in Class” (“BIC”) Steep Slopes Program” because the agency needed to be able to determine that the project was consistent with the Forest Plans of the George Washington National Forest(GWNF) and the Monongahela National Forest (MNF). The ACP would cross a combined 21-miles of National Forest lands in the two forests. Then, the Court noted, the Forest Service changed its mind and without explanation ultimately approved the project without requiring the requested ten stabilization designs for the project. (For more on the Forest Service request to Atlantic, see ABRA Update #103)

The NFMA establishes a procedure for managing forest plans through the use of Forest Plans and directs the Forest Service to ensure that all activities on forest lands are consistent with those Plans. The Court ruled that the Forest Service, in amending the GWNF and MNF plans, did not follow its own criteria and procedures for doing so. Among reasons cited in the opinion was the Forest Service’s failure to do a proper analysis of whether the ACP could be reasonably routed through non-national forest lands.

In considering the Forest Service’s compliance with NEPA in its evaluation of the ACP, the Court concluded that the agency violated that law “by failing to take a hard look at the environmental consequences of the ACP project. The Forest Service expressed serious concerns that the DEIS (Draft Environmental Impact Statement of the Federal Energy Regulatory Commission for the project) lacked necessary information to evaluate landslide risks, erosion impacts, and degradation of water quality, and it further lacked information about the effectiveness of mitigation techniques to reduce those risks.”

Regarding the violation of the MLA, the Court faulted the Forest Service for approving the ACP crossing the ANST on national forest land when the agency did not have the authority to do so. In its concluding paragraph of the opinion, the Court stated:

We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.

Reacting to the Court’s opinion, SELC attorney Patrick Hunter said:

“The George Washington National Forest, Monongahela National Forest and the Appalachian Trail are national treasures. The Administration was far too eager to trade them away for a pipeline conceived to deliver profit to its developers, not gas to consumers. This pipeline is unnecessary and asking fracked gas customers to pay developers to blast this boondoggle through our public lands only adds insult to injury.”

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Federal Energy Regulatory Commission (FERC) Requested to Revoke ACP’s Certificate

Article from the Allegheny Blue Ridge Alliance, December 13, 2018

In a filing late December 13, the Federal Energy Regulatory Commission (FERC) was asked to revoke the certificate for the Atlantic Coast Pipeline in light of the decision earlier in the day by the Fourth Circuit Court of Appeals to vacate the U.S. Forest Service’s approval for the pipeline to cross national forest lands and the Appalachian National Scenic Trail. In its 65-page letter to FERC, the Southern Environmental Law Center stated:

Crucially, the court held that the Forest Service does not have statutory authority to authorize the pipeline to cross the Appalachian Trail. As a result, under federal law, Atlantic Coast Pipeline, LLC (“Atlantic”) cannot obtain authorization from federal agencies to cross the Trail as proposed.

Thus, the Commission’s Certificate approves a project that cannot be constructed in compliance with federal law. Further, the proposed Appalachian Trail crossing is a linchpin in the Commission’s alternatives analysis—almost every alternative considered in the Final EIS includes this crossing point. See ACP Final EIS at 3-18 to 3-19. In light of the court’s decision, that analysis is not valid and cannot be used to approve a re-route of the project at this stage.

The Commission must therefore revoke the Certificate of Public Convenience and Necessity. Further, the Commission must issue a formal stop-work order, effective immediately, halting all construction activities because the court’s decision means that Atlantic continues to be out of compliance with a mandatory condition of its Certificate of Public Convenience and Necessity.

Tagged as: ACP, DEIS, FERC, forest management plan, national forests, NEPA, steep slopes, US Forest Service