By John McFerrin

The United States Court of Appeals has stopped the Atlantic Coast Pipeline from crossing the Monongahela National Forest and the George Washington National Forest.  The Court concluded that the Forest Service’s decisions violate the National Forest Management Act (“NFMA”), and the National Environmental Policy Act (“NEPA”).

In addition to stopping the National Forests crossings, the Court concluded that the Forest Service did not have the statutory authority pursuant to the Mineral Leasing Act (“MLA”) to grant a pipeline right of way across the Appalachian National Scenic Trail.  The Court sent the matter back to the Forest Service to try again.

As proposed, the pipeline would have crossed both the Monongahela National Forest and the George Washington National Forest. In addition, it would have crossed the Appalachian National Scenic Trail.

In challenging the decision by the Forest Service to allow crossing of the National Forests, the Petitioners had to meet a high standard.  Courts in general approach cases such as this with the assumption that agencies know what they are doing.  It is the agencies—not the judges–who are experts on sediment control, slope stability, endangered species, etc.  A court would not reverse the decision of the Forest Service simply because the judges might have looked at the evidence and concluded something different on sediment control, etc.  The Petitioners had to convince the Court that the decision had been “arbitrary and capricious.”

So far as the crossings of the Monongahela National Forest and the George Washington National Forest are concerned (the crossing of the Appalachian Trail is another matter), the Forest Service’s downfall in this case was the inconsistency in its positions.  This project was not approved in a day, or even a week.   Plans were submitted, the Forest Service would say there were problems with the plans, that it needed more information, or that it didn’t think that the plans would work.  Then, in the end, it approved the plans it had been criticizing all along.  It is hard not to look arbitrary and capricious when you repeatedly criticize a project and then approve it.

National Forest Management Act

Under the National Forest Management Act, the Forest Service has to make plans on how it is going to manage the National Forests. There is a Plan for each National Forest.  Each Forest revises its plan every ten or fifteen years; until the Plan is revised again in another ten or fifteen years, it serves as the blueprint for Forest management.

Neither the Plan for the Monongahela National Forest nor the one for the George Washington National Forest contemplates all the disturbance required to build a big pipeline.  In order to accommodate the level of disturbance necessary to construct the Atlantic Coast Pipeline, the Forest Service would have to amend those Plans.

The amendments exempt the Atlantic Coast Pipeline project from four Monongahela National Forest Plan standards and nine George Washington National Forest Plan standards that relate to soil, water, riparian, threatened and endangered species, and recreational and visual resources.

The Forest Service had concluded that the Plan amendments would not have substantial adverse effects upon the Forests. Because of the considerable evidence in the record that there would be such effects, the Court ruled that the amendments to the plan made to accommodate the pipeline were arbitrary and capricious.

In addition to the ruling that the Plan amendments were arbitrary and capricious, the Court also ruled that the pipeline would violate the Plans.  Since neither plan contemplates a big pipeline running through the Forest, such a pipeline would require what is called a Special Use Permit.  Such a permit would allow the use of Forest land for something other than what the Plan contemplates.

The Plans for both National Forests, however, prohibit allowing these Special Uses if the use can be accommodated on private lands.  The Court ruled that the Forest Service had not adequately considered whether the pipeline could be built other than on the National Forest; as a result its approval was arbitrary and capricious.

National Environmental Policy Act

            As had been said many times—and is repeated in this decision—the National Environmental Policy Act does not require wise environmental decision making. It just requires that the agencies involved seriously consider (“take a hard look” in the jargon of the genre) at the environmental consequences of a proposed action.

The inter-agency dynamics of this case gave the Court a useful tool for determining whether the Forest Service had taken this required “hard look.”  The conclusion: a quick glance, perhaps, but well short of a hard look.

Because the Federal Energy Regulatory Commission has overall responsibility for approving (or not approving) the Atlantic Coast Pipeline, it has the obligation for preparing the Environmental Impact Statement. The Forest Service is a cooperating agency.  Its role is to provide information and make comments on the draft of the Environmental Impact Statement.

One tool for determining if the Forest Service took the required hard look at the environmental consequences of the Atlantic Coast Pipeline is how it responded to the Federal Energy Regulatory Commission’s treatment of the issues it raised.  The Forest Service is supposed to make an independent review of the final Environmental Impact Statement and determine that the Federal Energy Regulatory Commission satisfied its comments and suggestions.  This is where the Forest Service went wrong.

During the preparation of the draft Environmental Impact Statement, the Forest Service gave every indication that it intended a hard look.  It pointed out several flaws in the plan to build a pipeline across the Forests, including (1) the need to consider alternative routes; (2) analysis of landslide risks; and (3) erosion, and degradation of water quality.

It was in accepting the final Environmental Impact Statement that the Forest Service’s performance plummeted from hard look to quick glance.  When the final Environmental Impact Statement came out, it had not addressed the problems that the Forest Service raised.  Whatever problems the Forest Service had pointed out were still there, still being problems.  The Forest Service accepted it anyway and used it as the basis for its decision to allow the Atlantic Coast Pipeline to cross the National Forests.

A good illustration of this is in how the Forest Service approached landslide risks.  As proposed, the Atlantic Coast Pipeline would cross some pretty rough country. Potentially difficult situations include steep slopes, presence of headwater streams, geologic formations with high slippage potential, highly erodible soils, and the presence of high-value natural resources downslope of high hazard areas.

During the preparation of the Draft Environmental Impact Statement, the Forest Service expressed serious concerns that the DEIS lacked necessary information to evaluate landslide risks, erosion impacts, and degradation of water quality. It further lacked information about the effectiveness of mitigation techniques to reduce those risks.

So that it could evaluate these risks, the Forest Service had asked for ten site specific stabilization designs.  It took the position that these were necessary and that it could use these ten designs where necessary to determine whether the pipeline could avoid the potential risks and impacts.  The Forest Service also questioned the quality of the designs that were submitted and the assumptions behind those designs.

The pipeline developers submitted designs for two sites.  The final Environmental Impact Statement acknowledges that “slope instability/landslide risk reduction measures have not been completed or have not been adopted.”

The Forest Service did not question this inadequacy of information, or why it never got the information it asked for.  Instead, it accepted the Final Environmental Impact Statement and relied upon it in approving the Forest crossings.

The Court concluded that this was not the “hard look” that the National Environmental Policy Act requires.

Mineral Leasing Act—Crossing the Appalachian National Scenic Trail

            As proposed, the Atlantic Coast Pipeline would cross the Appalachian National Scenic Trail.

The Appalachian Trail is a National Park.  As such, it is not administered by the Forest Service.  It is, instead, administered by the National Park Service, a part of the Department of the Interior.

Even though the Appalachian Trail is administered by the Park Service, the Park Service could not grant a right of way to cross it. Only Congress can grant a right of way to cross the Trail.  There is no dispute about this, at least so far as it applies to places where the Trail is on private lands.

The developers hoped to avoid this requirement of Congressional action by crossing the Trail while it is within the George Washington National Forest.  By crossing within the National Forest, the developers had hoped to be able to get approval from the Forest Service.  The Forest Service apparently agreed and approved crossing of the trail.

The Court disagreed.  It held that the Forest Service did not have the authority to approve a crossing of the Appalachian Trail.  It was not a question of whether the crossing was a wise idea or not.  It was a question of whether or not the Forest Service had the authority to approve the crossing and the Court determined that it didn’t.

 The Rest of the Story?

On the surface, the Forest Service just looks feckless.  All during the review, it kept raising all these issues, asking for more data, offering reasons why a big pipeline through the National Forest might not be such a good idea.  When it came to the end, however, and its data requests were unanswered, its ideas ignored, it just said, “Oh, OK” and let the project be approved.

Reporting by Outside magazine suggests that there may have been things beneath the surface that influenced the Forest Service’s judgment.  To see what you think of this possibility, see the story at https://www.outsideonline.com/2378161/forest-service-energy-industrys-new-pal

 More Than One Way to Skin a Pipeline

As discussed in the adjacent story, authorization to cross the Appalachian Trail by the Atlantic Coast Pipeline must come through an act of Congress.  Hoping that it would be otherwise, the developers sought approval from the Forest Service.  The Court ruled that the Forest Service did not have the authority to grant the approval.

Perhaps in anticipation of this ruling, the developers sought to have approval of the pipeline crossing included the budget bill that is now before Congress.  The Richmond Times-Dispatch reported this on December 3, 2018, before the Court decision.

When the Times-Dispatch sought confirmation, the developers confirmed the existence of the legislative proposal.

At press time there was no additional information on whether the proposal was still under active consideration, how it fared in the hurly burly of the shutdown, the wall, etc.

To read the whole story, go to https://www.richmond.com/news/plus/congress-considers-changing-law-for-pipeline-crossing-of-appalachian-trail/article_99c33695-eb87-57df-988a-55a0bb9430d9.html