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Fourth Circuit Vacates Permits Authorizing Pipeline Construction in National Forest

Wednesday, January 30, 2019
Hunter Leigh Jones

Hunter Leigh Jones

Associate Editor, ELR

On December 13, 2018, the U.S. Court of Appeals for the Fourth Circuit vacated permits issued by the U.S. Forest Service authorizing a pipeline, known as the Atlantic Coast Pipeline, to be constructed across two national forests and the Appalachian Trail. The Atlantic Coast Pipeline is a proposed 604-mile natural gas pipeline that would stretch from West Virginia to North Carolina.

In Cowpasture River Preservation Ass’n v. Forest Service, the Fourth Circuit held that the Forest Service violated both the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it approved a special use permit and issued a record of decision authorizing construction of the Atlantic Coast Pipeline across 21 miles of national forest land—roughly 16 miles in the George Washington National Forest and five miles in the Monongahela National Forest. Environmental groups argued that the agency violated NEPA by adopting an environmental impact statement (EIS) that (1) failed to take a “hard look” at the environmental impacts—landslide risks, erosion, and water quality degradation—from the pipeline, and (2) failed to consider an alternative route that avoided crossing national forest lands. The court found that the Forest Service disregarded its own concerns that the Federal Energy Regulatory Commission’s draft EIS lacked sufficient analysis of these impacts and off-forest alternatives when it changed position and adopted the Commission’s final EIS, in which the agency’s concerns had “mysteriously” not been addressed. 

Pipeline

Environmental groups also argued that the Forest Service violated the NFMA when it determined that its amendments to the George Washington and Monongahela National Forest Plans to accommodate the pipeline were not “directly related” to new substantive forest plan requirements that the agency introduced in 2012. The court agreed, concluding that the Forest Service’s amendments, which exempted the pipeline from forest plan standards concerning soil, riparian resources, and threatened and endangered species, were clearly directly related to the purpose and effect of the new requirements, and the Forest Service acted arbitrarily and capriciously in concluding otherwise.

As for the Forest Service’s approval of pipeline construction across the Appalachian Trail, the court concluded that the agency had no authority to grant the pipeline permission to cross the trail. The Forest Service asserted that the Mineral Leasing Act (MLA) prevented the National Park Service from authorizing pipeline rights-of-way across components of the Appalachian Trail on National Park System lands, but did not prevent the Forest Service from authorizing rights-of-way across parts of the trail that were on National Forest System lands. The court found, however, that the provision of the MLA that authorized the grant of pipeline rights-of-way specifically excluded lands in the National Park System. Because the Forest Service and the environmental groups agreed that the Appalachian Trail was a unit of the National Park System, the MLA exclusion applied, and therefore the Forest Service was not authorized to grant pipeline rights-of-way across the trail.

The court, in concluding that the Forest Service abandoned its responsibility to preserve national forests, shed light (with the help of Dr. Seuss) on its expectation that the agency should “speak for the trees, for the trees have no tongues,” and exposed some of the pressure felt by the agency to meet the private pipeline developer’s deadlines by showing that its serious environmental concerns were suddenly alleviated without explanation.

Cowpasture is the latest in a line of legal challenges in which the Fourth Circuit has struck down agency decisions authorizing construction of pipelines across federal land. Other cases include Sierra Club v. United States Forest Service, in which the court held that the U.S. Bureau of Land Management’s decision granting a right-of-way through Jefferson National Forest for construction of a pipeline violated the MLA by failing to demonstrate that alternative routes that would make greater use of existing rights-of-way were impractical, and Sierra Club v. United States Department of the Interior, in which the court held that the National Park Service’s decision granting a right-of-way across the Blue Ridge Parkway for construction of a pipeline violated the Blue Ridge Parkway Organic Act by failing to explain the pipeline’s consistency with the purposes of the Parkway and the National Park System.

These decisions illustrate that despite an increasing disregard for environmental requirements for pipeline development by federal agencies under the current Administration, courts have been willing to address claims by environmental groups challenging these authorizations and have found, in some instances, that agencies have been too hasty in approving such development.