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Fourth Circuit Finds Forest Service Did Not Speak For The Trees

Quoting a Dr. Seuss book, the United States Court of Appeals for the Fourth Circuit on Thursday issued its opinion in Cowpasture River Preservation Association v. United States Forest Service, No. 18-1144 (4th Cir. Dec. 13, 2018). The Court held that the US Forest Service (the “Forest Service”) violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”), as well as lacked statutory authority under the Mineral Leasing Act (“MLA”) to grant a pipeline right of way across the Appalachian National Scenic Train (the “Appalachian Trail”), failing to “speak for the trees” as Seuss’s Lorax directs.

The pipeline project developer, Atlantic Coast Pipeline, had proposed a 604.5-mile natural gas pipeline that would stretch from West Virginia to North Carolina.   The pipeline’s proposed route crossed through the George Washington National Forest and the Monongahela National Forest, and contemplated a 125-foot right of way during construction and a 50-foot permanent right of way. As a cooperating agency, the Forest Service provided comments on FERC’s notice of intent to prepare an environmental impact statement (“EIS”) for the project, as required by NEPA, stating that it believed the EIS needed to contemplate pipeline routes that did not cross national forest land. The Forest Service also suggested that it had concerns regarding a number of environmental threats, including landslides, slope failures, sedimentation, and impacts to groundwater, soils, and threatened or endangered species.

FERC issued its Draft EIS in December 2016 and in April 2017, the Forest Service provided comments on the Draft EIS, objecting to many of the conclusions that FERC had drawn, particularly the scope of the impacts to national forest resources. However, the Forest Service sharply changed its tune in May 2017, when it informed FERC and Atlantic Coast that it would no longer require certain site-stabilization plans it had earlier requested. The Final EIS and draft Record of Decision (“ROD”) were released in July 2017 and the Forest Service issued its response to the Draft ROD in October, stating it “adequate[ly] consider[ed] the route across the National Forests” and that alternatives would not provide significant environmental improvements. The Forest Service’s own ROD was issued in November 2017, indicating support for FERC’s environmental documents and plans, and a right of way across the Appalachian Trail was granted in January 2018. Various environmental groups, including the Sierra Club, filed a challenge in February.

The Fourth Circuit analyzed separately each of the statutes that the petitioners claimed the Forest Service had violated. The NFMA, as the Court stated, requires the Forest Service to consider Forest Management Plans which govern the nature of activities that can occur in national forests. In making its recommendations regarding the pipeline, the Forest Service had suggested project-specific amendments to the plans for the George Washington and Monongahela National Forests. However, the Court held that, in its proposals, the Forest Service had failed to adequately consider the purpose of the amendments and any ex post facto statements to that end were insufficient. Additionally, the Court held that the Forest Service’s conclusion that the amendments would not have a substantial adverse effect on forest resources was arbitrary and capricious, violating a reasonable understanding of what substantial adverse effects are, as well as being undercut by substantial evidence on the record. The Fourth Circuit further held that the Forest Service violated its obligations under the NFMA by not demonstrating that the pipeline project’s goals could not be reasonably met on non-national forest lands. The Court did, however, reject the petitioners’ claims that the Forest Service failed to provide for adequate public participation.

As to NEPA, the Court stated that the Forest Service failed to adequately consider off-forest routes, as discussed above. Despite the Forest Service only being a cooperating agency, the Fourth Circuit nonetheless held they had violated their obligations because the Court found it impossible to conclude that the Forest Service had taken the necessary independent review of the environmental documents. Additionally, the Forest Service was held to violate NEPA because it had failed to “take a hard look at the environmental consequences” of the pipeline project, namely the risks of landslides, erosion, and degradation of water quality, as well as a failure to elicit sufficient information about Atlantic Coast’s proposed mitigation techniques to reduce these risks.

Finally, the Court held that the Forest Service violated the MLA. The panel found that the Appalachian Trail is a unit of the National Park System and, as such, appropriately administered by the Secretary of the Interior, and thus the Forest Service lacked jurisdiction over the Trail, even if other National Trails were administered by the Department of Agriculture, where the Forest Service resides. Perhaps importantly, the Fourth Circuit also dismissed the Forest Service’s challenge to petitioners’ standing to bring this claim. The Court held that it was irrelevant that petitioners had not raised concerns regarding the MLA and the Appalachian Trail during the draft ROD comment period, because the draft ROD did not clearly contemplate granting a right of way across the Trail. Thus, the petitioners had the right to bring this challenge before the Court. Further, the Court held that such a determination (that is, the jurisdiction of the Forest Service over the Appalachian Trail) was one purely of law and thus uniquely in the purview of the judicial branch.

In short, the Court found that the record dictated the conclusion that the Forest Service’s decision was preordained and that the ROD was reverse-engineered to justify the outcome. The Court concluded by citing to Dr. Seuss’ the Lorax, stating that the Court trusts “the United States Forest Service to ‘speak for the trees, for the trees have no tongues’” and holding that based on a review of the record, the Forest Service had “abdicated its responsibility.” The pipeline owners have indicated that they intended to seek full review by an en banc sitting of the Fourth Circuit.