In the second opinion in two weeks concerning the Atlantic Coast Pipeline (ACP), the United States Court of Appeals for the Fourth Circuit decided Thursday to vacate the United States Forest Service’ (FS) decision to grant the ACP permits for the pipeline to travel through areas of national forest land, and cited that the FS violated several laws in granting the permits.

The court opined that the FS’ decision to issue a Special Use Permit (SUP) to the pipeline violated the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA), and that the FS lacked statutory authority pursuant to the Mineral Leasing Act (MLA) to grant a pipeline right of way across the Appalachian National Scenic Trail (ANST).

On Dec. 7, The U.S. Court of Appeals for the Fourth Circuit granted a stay of implementation of the U.S. Fish and Wildlife Service’s (FWS) 2018 Biological Opinion and Incidental Take Statement, arguing that the ACP would have an impact on four endangered species.

The stay was requested by petitioners Defenders of Wildlife, Sierra Club and Virginia Wilderness Committee. The court motion contended that the FWS, in two instances, “rushed its authorizations, introducing errors into its analysis, in order to accommodate Atlantic’s timeline.”

As a result of the Dec. 7 decision, Dominion Energy, one of the four major U.S. companies with the ACP, confirmed that all work is stopping on the pipeline except for activities in reference to public or environmental safety.

The Thursday decision by the court made headlines in national publications, in part because the court opinion quoted a portion of Dr. Seuss’ “The Lorax,” a children’s story widely known for its message of environmental protection.

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’” the court opinion cited. “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.”

“Accordingly, for the reasons set forth herein, we grant the petition to review the Forest Service’s Record of Decision and Special Use Permit, vacate the Forest Service’s decisions, and remand to the Forest Service for proceedings consistent with this opinion,” the opinion concluded.

The 60-page opinion explored the court case, involving petitioners Sierra Club, Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network and Virginia Wilderness Committee and Wild Virginia, Inc.

Respondents included FS, an agency of the United States Department of the Agriculture, Kathleen Atkinson, regional forester of the Eastern Region and Ken Arney, acting regional forester of the Southern Region.

The case was before Fourth Circuit Judges Stephanie D. Thacker, Roger L. Gregory and James A. Wynn Jr. Thacker wrote the opinion.

THE CASE

The approximately 600 miles of the ACP, running through North Carolina, West Virginia and Virginia, crosses 21 miles of national forest land, including approximately 16 miles of George Washington National Forest (GWNF), Monongahela National Forest (MNF), and a right of way across the ANST.

“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,” the court opinion cited. “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.”

In order to follow guidelines with the National Environmental Policy Act (NEPA) in reference to major actions “significantly affecting the quality of the human environment,” The Federal Energy Regulation Committee (FERC) was required to prepare a detailed environmental impact statement (“EIS”) describing the likely environmental effects and potential alternatives to the ACP proposal.

The EIS must analyze alternative routes that do not cross national forest land, and 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.’”

ACP applied for a special use permit from the FS to construct and operate the pipeline across the MNF and GWNF in November 2015, and amended the application in June 2016.

As FERC prepared the EIS, FS offered 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, where FS requested 10 site-specific stabilization designs for selected areas of challenging terrain to demonstrate the effectiveness of ACP’s proposed steep slope stability program, which Atlantic called the “Best in Class” (“BIC”) Steep Slopes Program.

“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,” documentation from FS cited.

In Dec. 2016, according to the court opinion, ACP circulated a timeline of “FERC and Forest Service Reviews” to the FS, which set the following deadlines for the agency’s decisions proposed by ACP: (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 also be issued in June 2017; (4) a “Federal Agency Decision Deadline” in 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.

On February 2017, the court opinion cited that ACP notified the FS that two of the 10 earlier site designs were for demonstration purposes, and the remaining eight sites were not currently being designed.

The FS stated, according to the opinion, “that it was ‘not comfortable’ with not seeing the remaining designs, and that it was the Forest Service’s understanding that specific designs for all 10 sites were still needed.”

On several aspects of the DEIS from ACP, the FS voiced similar concerns.

However, the opinion cited that on May 14, 2017, the Forest Service sent a letter to FERC andACP “in which it stated — for the first time — that it would not require the remainingeight site-specific stabilization designs before authorizing the project.” The letter also did not acknowledge that this stance from FS differed from its original concern about needing all 10 of the site-specific stabilization designs.

FS was cited by petitioners to have violated NEPA for adopting FERC’s “inadequate EIS without undertaking the required ‘independent review.’”

FS also, according to the court opinion, adopted the FEIS despite including unresolved concerns that FS failed to address such as landslide risks, erosion, and degradation of water quality.

DOMINION’S RESPONSE

Dominion Energy released a statement in response to the court’s opinion citing that the company is appealing the court’s decision.

“The court’s decision is at odds with the consensus of the U.S. Department of Interior, U.S. Department of Agriculture, National Park Service and U.S. Forest Service,” the statement by Dominion Spokesman Aaron Ruby cited. “All of these agencies agree that the Forest Service has the full legal authority to approve the Atlantic Coast Pipeline’s crossing of the Appalachian Trail (AT). Under Democratic and Republican administrations alike, for decades 56 other oil and gas pipelines have operated across the AT. This opinion brings into question whether or not these existing pipelines can remain in place.”

“With this decision, the Fourth Circuit has now undermined the judgment of the dedicated, career professionals at nearly every federal agency that has reviewed this project,” Ruby continued.

Ruby argued that the court opinion, and the petitioners, have the potential to harm the economical and energy opportunities available with the ACP.