Cowpasture River Pres. Ass'n v. Forest Serv.

• Decision Date: 13 December 2018
• Docket Number: No. 18-1144,18-1144
• Parties: COWPASTURE RIVER PRESERVATION ASSOCIATION; Highlanders for Responsible Development; Shenandoah Valley Battlefields Foundation ; Shenandoah Valley Network; Sierra Club; Virginia Wilderness Committee; Wild Virginia, Inc., Petitioners, v. FOREST SERVICE, an Agency of the U.S. Department of the Agriculture; Kathleen Atkinson, in Her Official Capacity as Regional Forester of the Eastern Region; Ken Arney, in His Official Capacity as Acting Regional Forester of the Southern Region, Respondents, Atlantic Coast Pipeline LLC, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

911 F.3d 150

COWPASTURE RIVER PRESERVATION ASSOCIATION; Highlanders for Responsible Development; Shenandoah Valley Battlefields Foundation ; Shenandoah Valley Network; Sierra Club; Virginia Wilderness Committee; Wild Virginia, Inc., Petitioners,

v.FOREST SERVICE, an Agency of the U.S. Department of the Agriculture; Kathleen Atkinson, in Her Official Capacity as Regional Forester of the Eastern Region; Ken Arney, in His Official Capacity as Acting Regional Forester of the Southern Region, Respondents,Atlantic Coast Pipeline LLC, Intervenor.

No. 18-1144

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2018

Decided: December 13, 2018

ARGUED: Austin D. Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, Asheville, North Carolina, for Petitioners. Avi Kupfer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Brooks Meredith Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor. ON BRIEF: Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert, Jonathan Gendzier, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Petitioners Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, and The Virginia Wilderness Committee. Nathan Matthews, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Oakland, California, for Petitioners Sierra Club and Wild Virginia, Inc. Eric Grant, Deputy Assistant Attorney General, Andrew C. Mergen, J. David Gunter II, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Stephen A. Vaden, Principal Deputy General Counsel, Washington, D.C., Jay McWhirter, Sarah Kathmann, Office of the General Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE, Atlanta, Georgia, for Respondents. Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.

Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.

Petition for review granted, vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.

THACKER, Circuit Judge:

In this case, we address whether the United States Forest Service ("Forest Service") complied with the National Forest Management Act ("NFMA"), the National Environmental Policy Act ("NEPA"), and the Mineral Leasing Act ("MLA") in issuing a Special Use Permit ("SUP") and Record of Decision ("ROD") authorizing Atlantic Coast Pipeline, LLC ("Atlantic"), the project developer, to construct the Atlantic Coast Pipeline ("ACP" or "the pipeline") through parts of the George Washington and Monongahela National Forests ("GWNF" and "MNF," respectively) and granting a right of way across the Appalachian National Scenic Trail ("ANST").

For the reasons more fully explained below, we conclude that the Forest Service’s decisions violate the NFMA and NEPA, and that the Forest Service lacked statutory authority pursuant to the MLA to grant a pipeline right of way across the ANST. Accordingly, we grant the petition for review of the Forest Service’s SUP and ROD, vacate those decisions, and remand to the Forest Service for further proceedings consistent with this opinion.

I.

A.Background

The ACP is a proposed 604.5 mile, 42-inch diameter natural gas pipeline that would stretch from West Virginia to North Carolina. The ACP route approved by the Federal Energy Regulatory Commission ("FERC") -- and for which the Forest Service issued the SUP, ROD, and right of way challenged in this case -- crosses 21 miles of national forest land (about 16 miles in the GWNF and five miles in the MNF) and crosses the ANST in the GWNF. 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.

Pursuant to NEPA, when a federal agency proposes to take a "major Federal action[ ] significantly affecting the quality of the human environment," the agency must prepare a detailed environmental impact statement ("EIS") describing the likely environmental effects, "adverse environmental effects which cannot be avoided," and potential alternatives to the proposal. 42 U.S.C. § 4332(C). On April 27, 2015, the Forest Service provided scoping comments on FERC’s Notice of Intent to prepare an EIS for the ACP project. The scoping comments stated, among other concerns, that the EIS must analyze alternative routes that do not cross national forest land, and that the EIS must address the Forest Service’s policy that restricts special uses on national forest lands to those that "cannot reasonably be accommodated on non-National Forest System lands." J.A. 3593;¹ see also Forest Serv. Manual, Addendum to Pet’rs’ Br. 65–66. The Forest Service’s comments further identified concerns about landslides, slope failures, sedimentation, and impacts to groundwater, soils, and threatened and endangered species that it believed would result from the ACP project.

On September 18, 2015, Atlantic filed its formal application with FERC to construct, own, and operate the pipeline. On November 12, 2015, Atlantic applied for the SUP from the Forest Service to construct and operate the pipeline across the MNF and GWNF. This application was amended in June 2016.

B.Review and Comment

As FERC prepared the EIS, the Forest Service reviewed and commented on draft environmental resource reports, construction designs, biologic evaluations, and the first draft of Atlantic’s Construction, Operation, and Maintenance ("COM") Plan filed with FERC. Additionally, in a letter to Atlantic dated October 24, 2016, the Forest Service 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. As the Forest Service explained:

Both the [GWNF and MNF] contain Forest Plan standards that limit activities in areas that are at high risk for slope and soil instability. To facilitate the acceptance of ACP’s [SUP] application for further processing, the Forests need to be able to determine that the project is consistent or can be made consistent with this Forest Plan direction.

J.A. 3379. The letter further noted that the ten selected sites were "merely representative sites that have been selected to demonstrate whether stability can be maintained for the purpose of making a preliminary determination of Forest Plan consistency. Should the ACP Project be permitted, multiple additional high hazard areas will need to be addressed on a site-specific basis." Id.

In a meeting between Atlantic and the Forest Service on November 21, 2016, Atlantic presented the first two of these site-specific stabilization designs (identified as MNF01 and GWNF02 in the October 24, 2016 letter). According to the meeting notes, the MNF Forest Supervisor noted:

[W]hile the BIC program [Atlantic] is proposing is laudable [the MNF Forest Supervisor] is skeptical the techniques will work; the Forest Service has seen slope failures on lesser slopes and would be able to provide examples. [Atlantic] needs to be able to demonstrate that the techniques will work in extreme conditions. ... The [Forest Service] wants to know beforehand that these examples have a reasonable chance of working.

J.A. 3319. Additionally, the Forest Service observed that the MNF01 and GWNF02 "drawings are a step in the right direction but more detail is needed for site specific design, the Forest Service needs to see how this lays out on the land."Id. at 3320.

Thereafter, beginning in December 2016, Atlantic circulated a timeline of "FERC and Forest Service Reviews" to the Forest Service, which set the following deadlines for the agency’s decisions (as proposed by Atlantic): (1) FERC’s Draft Environmental Impact Statement ("DEIS") to be issued in December 2016; (2) FERC’s Final Environmental Impact Statement ("FEIS") to be issued in June 2017; (3) the Forest Service’s draft ROD to be issued also in June 2017; (4) a "Federal Agency Decision Deadline" of September 2017 (for issuance of the FERC Certificate of Convenience and Public Necessity and the Forest Service’s SUP and ROD); (5) Forest Plan amendments completed in October 2017; and (6) the pipeline in service by 2019. See J.A. 3252–53.

In line with Atlantic’s deadlines for the agencies’ decisions, FERC issued the DEIS on December 30, 2016. Regarding its analysis of alternative routes, the DEIS explicitly stated that the ACP was routed on national forest lands in order to avoid the need for congressional approval for the pipeline to cross the ANST:

A significant factor in siting ACP was the location at which the pipeline would cross the ANST . In the general project area, the ANST is located on lands managed by either the [National Park Service ("NPS") ] or [the Forest Service]. The NPS has indicated that it does not have the authority to authorize a pipeline crossing of the ANST on its lands. Instead, legislation proposed by Congress and signed into law by the President would be necessary to allow the NPS the authority to review, analyze, and approve a pipeline crossing of the ANST on its lands. Because of this legislative process, Atlantic considered locations where the ANST was located on lands acquired and administered by the [Forest Service] , which significantly constrained the pipeline route and severely limits opportunities for avoiding and/or minimizing the use of [National Forest System] lands.

J.A. 3207–08 (emphasis supplied). Regarding the environmental impact on forest resources, the DEIS further stated:

[W]e acknowledge that a shorter pipeline route could conceptually have

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