An apparent attempt by the U.S. Forest Service (USFS) to reverse its previous findings about the potentially detrimental impacts of a proposed 600-mile natural pipeline crossing two national forests as well as the Appalachian National Scenic Trail (ANST) was in violation of multiple federal laws, including the National Environmental Policy Act (NEPA), concluded a panel of the U.S. Court of Appeals for the 4th Circuit.
Initially, the USFS had “serious reservations” about a NEPA Draft Environmental Impact Statement (DEIS) prepared by the Federal Energy Regulatory Commission (FERC) for the route of the pipeline, which would pass through the George Washington and Monongahela National Forests (GWNF and MNF, respectively) and cross the ANST in the GWNF. But when the Final EIS (FEIS) was released several months later, the USFS took a different position, saying it would adopt the FEIS into its Record of Decision (ROD) for the pipeline and also grant the Special Use Permit (SUP) authorizing construction of the project.
The panel found that the USFS could not present evidence that its ROD and SUP did not violate the National Forest Management Act (NFMA) and the Mineral Leasing Act (MLA) in addition to NEPA, as environmental petitioners claimed it did. Accordingly, the panel vacated both the ROD and the SUP and remanded the matter to the USFS for proceedings consistent with its opinion.
Atlantic Coast Pipeline, LLC, is seeking the SUP for its Atlantic Coast Pipeline (ACP). The project would travel about 16 miles in the GWNF and 5 miles in the MNF. Construction would involve clearing trees and other vegetation from a 125-foot right of way (reduced to 75 feet in wetlands) through the national forests, digging a trench to bury the pipeline, and blasting and flattening ridgelines in mountainous terrains. Following construction, the project requires maintaining a 50-foot right of way (reduced to 30 feet in wetlands) through the GWNF and MNF for the life of the pipeline.
Following issuance of the ROD and SUP, petitioners asked the court to find the USFS in violation of the three federal statutes.
The NFMA directs the Forest Service to “develop, maintain, and, as appropriate, revise” Forest Plans for national forests and also ensure that all activities in national forests are consistent with the Forest Plans. In its ROD, the USFS decided to apply project-specific amendments to a total of 13 standards in the GWNF and MNF Forest Plans for the purpose of construction and operation of the ACP. The amendments exempt the ACP project from four MNF Plan standards and nine GWNF Plan standards that relate to soil, water, riparian, threatened and endangered species, and recreational and visual resources.
Petitioners asserted that these amendments were issued without the required analysis required by the agency’s 2012 Forest Planning Rule, which set forth new, substantive requirements for Forest Plans. The USFS countered that the amendments were not directly related to the 2012 Planning Rule. The panel disagreed.
“The amendments’ entire purpose is to weaken existing environmental standards in order to accommodate the ACP, which cannot meet the current standards,” the panel stated. “To say that a 2012 Planning Rule requirement protecting water resources (as one example) is not ‘directly related’ to a Forest Plan amendment specifically relaxing protection for water resources is nonsense.”
“Accordingly, in line with our decision in Sierra Club v. Forest Service, we conclude that the 2012 Planning Rule requirements for soil, riparian resources, and threatened and endangered species are directly related to the purpose of the Forest Plan amendments,” the panel added. “The Forest Service acted arbitrarily and capriciously in concluding otherwise.”
NEPA requires that agencies consider alternatives to any proposed action by a federal agency that may have an adverse impact on the environment. Petitioners contended that the USFS violated NEPA by failing to consider alternatives that avoid national forestland. While, in this case, FERC was the lead agency charged with issuing the EIS, the USFS acted as a cooperating agency by assisting FERC in analyzing the environmental impacts to 430 acres of national forestlands on the proposed ACP route.
The USFS responded to petitioners’ claims with the argument that since FERC was responsible for analyzing alternative pipeline routes, the USFS reasonably relied on that alternatives analysis in adopting the FEIS.
But the panel replied that the USFS had raised major concerns about the lack of study of off-forest alternatives in the DEIS. Furthermore, the USFS presented no evidence that FERC made any attempt to address the USFS’s earlier concerns.
“The Forest Service never explains, in the ROD or elsewhere, how its concerns about off-forest alternative routes were assuaged,” wrote the panel.
“We hold that adopting the unchanged alternatives analysis in the FEIS was arbitrary and capricious,” the panel concluded.
The MLA authorizes the secretary of the Interior or an appropriate agency head to grant gas pipeline rights-of-way across federal lands. But federal lands in this context do not include lands in the National Park System. Congress designated the ANST as a National Scenic Trail administered by the secretary of the Interior, who delegated that duty to the NPS.
The USFS argued that the National Trails System Act, which provides for the administration of national trails like the ANST, distinguishes between the overall administration of the ANST (with which the National Park Service (NPS) is charged) and administration of the ANST’s underlying lands (most of which are under the jurisdiction of other agencies, like the Forest Service). Therefore, the USFS said it possessed the authority to allow the pipeline to cross the ANST.
The panel disagreed.
“The National Trails System Act does not distinguish between various levels of administration of the ANST; rather, as NPS explained to FERC, the Act is clear that the Secretary of the Interior [who oversees the NPS] administers the entire ANST, while ‘other affected State and Federal agencies,’ like the Forest Service, manage trail components under their jurisdiction,” wrote the panel
“The Forest Service’s arguments to the contrary are unavailing, and the Forest Service does not have statutory authority to grant pipeline rights of way across the ANST pursuant the MLA,” the panel continued. “The Forest Service’s ROD and SUP granting this right of way are, accordingly, vacated.”
The 4th Circuit’s opinion in Cowpasture River Preservation Association et al. v. USFS is at http://www.ca4.uscourts.gov/opinions/181144.P.pdf.