Cowpasture River Preservation v. Forest Service , 911 F.3d 150 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1144
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.
On Petition for Review of a Decision of the United States Forest Service.
Argued: September 28, 2018 Decided: December 13, 2018
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.
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.
2
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
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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,
1
Citations to the “J.A.” refer to the Corrected Deferred Joint Appendix filed by
the parties in this appeal.
4
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
5
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.
6
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
significantly greater qualitative impacts to sensitive resources than a longer
route, which could make the longer route preferable. In this instance, we
have not identified or received any information that suggests the shorter
pipeline route through the National Forests has significantly greater impacts
to sensitive resources than the alternative, but acknowledge that ground
resource surveys have not been conducted.
Id. at 3208 (emphasis supplied).
On February 17, 2017, Atlantic and the Forest Service met again to discuss the ten
requested site-specific stabilization designs. During this meeting, Atlantic informed the
Forest Service that the two earlier site designs were for demonstration purposes, and the
remaining eight sites were not currently being designed. The Forest Service stated that it
7
was “not comfortable” with not seeing the remaining designs, and that it was the Forest
Service’s understanding that specific designs for all ten sites were still needed. J.A.
2939. Significantly, the Forest Service stated, it “want[ed] to see actual information,
including specs on the actual controls and protocol on how they will be installed, not
conceptual drawings.” Id.On April 6, 2017, the Forest Service provided comments on FERC’s DEIS. In
multiple places, the Forest Service’s comments stated that FERC’s conclusions in the
DEIS were premature given the incomplete information used to make them -- this was
particularly the case regarding the extent of impacts to national forest resources and the
effectiveness of mitigation techniques. See, e.g., J.A. 2444 (“This statement [in the
DEIS] acknowledges deficiencies in information needed to conduct an appropriate effects
analysis for at least some sensitive species. Given this, the [Forest Service] has serious
reservations about the conclusions of the analyses up to this point because those
conclusions have been reached prior to acquiring the necessary information to
substantiate what must otherwise be presumed to represent judgments based on
incomplete information.”); id. at 2445 (“There will be irreversible impacts to the soil and
vegetation resources from construction of the ACP pipeline on [National Forest System]
lands. No matter how [Atlantic] plans to implement measures to reduce these impacts,
there will still be an unavoidable irreversible dedication of the soil resource as defined by
NEPA . . . . The [COM] Plan is currently not complete, and substantial work remains to
develop and refine measures to avoid, minimize, and mitigate impacts to a variety of
8
resources on [National Forest System] lands, including steep slopes/sensitive soils;
threatened, endangered, and sensitive species; and management indicator species.”).
Further, regarding the DEIS’s analysis of non-national forest alternative routes, the
Forest Service commented:
No analysis of a National Forest Avoidance Alternative has been
conducted, and environmental impacts of this alternative have not been
considered or compared to the proposed action. Therefore, the Forest
Service cannot support the recommendation that the National Forest
Avoidance Alternative be dropped from consideration. In our scoping
comments, we requested that all alternatives, including a National Forest
Avoidance Alternative, be fully addressed in regard to their feasibility and
environmental effects. We hereby reiterate that request.
J.A. 2454 (emphasis supplied).
The Forest Service’s comments on Atlantic’s draft biologic evaluation, issued on
April 24, 2017, paint a similarly grim picture of the ACP project’s effects on erosion and
on threatened and endangered species. For example, Atlantic’s draft biologic evaluation
contained the following statement: “Construction activities may displace certain sensitive
species from within and areas adjacent to the right-of-way, but the impact is expected to
be short-term and limited to the period of construction. After construction, Atlantic will
restore the right-of-way as near as practicable to preconstruction contours and conditions
. . . .” J.A. 2324. In response, the Forest Service stated:
Restoration will consist of erosion control, some NNIS [non-native invasive
species] control, and some native plant re-introduction, so it will create
habitat of some sort, but the impact to sensitive species should be expected
to be long-term. Restoration plantings will take many years to establish
and flourish, will in most cases consist of different species than were
present before, and will in many cases not re-create the conditions sensitive
species need to survive. NNIS introductions, given the current lack of plans
to conduct treatment along access roads, likely will create long-term
9
negative impacts to the ecosystem, including potentially to sensitive
species.
Id. (emphasis supplied).
Additionally, in response to a statement in the draft biologic evaluation that the
loss of potential roosting habitat for the little brown bat (caused by construction of the
pipeline and the resulting permanent right of way) would be “offset,” since the species
could use the right of way as foraging habitat, the Forest Service stated:
A potential increase in foraging habitat (which is not really proven here)
does not offset the long-term loss of good roosting habitat -- they apply to
different life history needs and an increase in one does not offset loss of the
other. Also, the loss of forested habitat would be a long-term impact given
the time period required for recovery.
J.A. 2333. The Forest Service further noted, “Bats utilizing the more open areas (such as
the [right of way] and road corridors) for foraging are also more vulnerable to predators.
This offset is counteracted by an increase in potential predation, which negates the [right
of way] and roads as potentially beneficial to the bat.” Id. at 2332.
C.
Change of Course
Despite the Forest Service’s clearly stated concerns regarding the adverse impacts
of the ACP project, as Atlantic’s deadlines for the agency’s decisions drew closer, its
tenor began to change. On May 14, 2017, the Forest Service sent a letter to FERC and
Atlantic in which it stated -- for the first time -- that it would not require the remaining
eight site-specific stabilization designs before authorizing the project. Specifically, the
letter stated: “If the ACP project is authorized, the site-specific designs for the remaining
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eight sites identified in our October 24, 2016 letter must be reviewed and approved by the
[Forest Service] before construction at those locations could begin.” J.A. 2307. The
letter did not acknowledge that the agency was changing its position from its original
request for all ten site designs prior to granting approval for the ACP nor did it provide
any further explanation regarding the reason for the Forest Service’s change in position.
On July 5, 2017, the Forest Service sent a letter to Atlantic “acknowledg[ing]” that the
two site-specific stabilization designs that had so far been provided (MNF01 and
GWNF02) and the subsequent information about those sites provided by Atlantic “w[ere]
adequate for the purposes of disclosing the environmental effects” associated with the
ACP project. Id. at 1881. The letter did not provide any explanation as to why the two
plans were “adequate.”
On July 21, 2017, FERC released the FEIS. On the very same day, and in line
with Atlantic’s timeline, the Forest Service released its draft ROD proposing to adopt the
FEIS, grant the SUP, and exempt Atlantic from several forest plan standards. The FEIS’s
“National Forest Avoidance Route Alternatives” section, which the Forest Service
commented on previously (as explained above), is identical to the DEIS. Regarding the
alternatives analysis, the Forest Service’s draft ROD states: “FERC’s evaluation
concluded that the major pipeline route alternatives and variations do not offer a
significant environmental advantage when compared to the proposed route or would not
be economically practical.” Id. at 1411.
Regarding the COM Plan, on October 6, 2017, the Forest Service sent a letter to
Atlantic stating that Atlantic’s June 30 responses to the Forest Service’s second draft
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COM Plan comments “largely addressed our comments except for a limited number of
items needing further explanation or clarification.” J.A. 847. The letter requested an
updated COM Plan incorporating these responses. Atlantic filed this third (and final)
draft of the COM Plan on October 27, 2017.
FERC issued the Certificate of Convenience and Public Necessity to ACP for
construction of the pipeline on October 13, 2017.
Shortly after, on October 27, 2017, the Forest Service filed its responses to
objections to the draft ROD. In response to an objection regarding the range of non-
national forest route alternatives, the Forest Service stated that FERC “adequate[ly]
consider[ed] the route across the National Forests” and “concluded these alternatives
would not provide a significant environmental advantage over a shorter route that passes
through National Forests.” J.A. 676.
On November 16, 2017, the Forest Service sent a letter to Atlantic regarding
Atlantic’s updated biologic evaluation, which had been filed on August 4, 2017. That
biologic evaluation stated that the ACP project was likely to result in a “loss of viability”
for three Regional Forester Sensitive Species (“RFSS”) in the MNF, a conclusion which,
we note, was in line with the Forest Service’s April 24, 2017 comments on the draft
biologic evaluation. Nonetheless, in an about-face, the Forest Service’s letter amended
the updated biologic evaluation to conclude that, in fact, the project was not likely to
result in a loss of viability to the three RFSS. This conclusion is significant, because the
Forest Service cannot authorize uses of national forests that are likely to result in a loss of
viability for a species. See J.A. 64 (“Per [Forest Service Manual] 2670.32, activities or
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decisions on [National Forest System] lands ‘must not result in a loss of species viability
or create significant trends towards federal listing.’”). However, as noted above, the
Forest Service had already issued its draft ROD proposing to authorize the SUP before
the updated biologic evaluation was filed.
The Forest Service issued its final ROD on November 17, 2017, and it issued the
SUP and granted the right of way across the ANST on January 23, 2018. Cowpasture
River Preservation Association, Highlanders for Responsible Development, Shenandoah
Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia
Wilderness Committee, and Wild Virginia, Inc. (collectively, “Petitioners”) filed this
challenge on February 5, 2018. We possess jurisdiction pursuant to the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701–06, and the Natural Gas Act, 15 U.S.C.
§ 717r(d)(1).
II.
We may “‘hold unlawful and set aside [a federal] agency action’ for certain
specified reasons, including whenever the challenged act is ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.’” Sierra Club, Inc. v.
U.S. Forest Serv., 897 F.3d 582, 589–90 (4th Cir. 2018) (quoting 5 U.S.C. § 706(2)(A)).
An agency’s decision is arbitrary and capricious if:
the agency relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.
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Id. at 590 (quoting Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 396 (4th Cir.
2014)).
III.
Petitioners assert that the Forest Service violated three federal Acts in issuing the
ROD and SUP: the NFMA, NEPA, and the MLA. We address each of these Acts and
alleged violations in turn.
A.
National Forest Management Act
The NFMA sets forth substantive and procedural standards that govern the
management of national forests. See 16 U.S.C. § 1604. As this court recently explained
in Sierra Club v. Forest Service, the NFMA establishes a procedure for managing
National Forest System lands using “Forest Plans,” which “provide a framework for
where and how certain activities can occur in national forests.” Sierra Club, Inc. v. U.S.
Forest Serv., 897 F.3d 582, 600 (4th Cir. 2018) (quoting Am. Wild Horse Pres. Campaign
v. Perdue, 873 F.3d 914, 919 (D.C. Cir. 2017); 16 U.S.C. § 1604(a)). First, the NFMA
directs the Forest Service to “develop, maintain, and, as appropriate, revise” Forest Plans;
second, it directs the Forest Service to ensure that all activities on national forest lands --
specifically, all “resource plans and permits, contracts, and other instruments for the use
and occupancy of National Forest System lands” -- are consistent with the Forest Plans.
Id. (quoting Perdue, 873 F.3d at 919; 16 U.S.C. § 1604(i)).
The NFMA also charges the Department of Agriculture (through the Forest
Service, see 36 C.F.R. § 200.3(b)) with “promulgating guidelines for Forest Plans, which
14
should, inter alia, ‘insure consideration of the economic and environmental aspects of
various systems of renewable resource management’ and ‘provide for diversity of plant
and animal communities based on the suitability and capability of the specific land
area.’” Sierra Club, 897 F.3d at 600 (quoting 16 U.S.C. § 1604(g)(3)(A)–(B)). At issue
in this case are two Forest Service regulations issued pursuant to this authority: the 2012
Planning Rule and the 2016 Amendment to the 2012 Planning Rule, both of which deal
with amendments to Forest Plans.
Petitioners assert that the Forest Service violated the NFMA by: (1) determining
that amendments to the GWNF and MNF Plans’ standards to accommodate the ACP
were not “directly related” to the 2012 Forest Planning Rule’s (“2012 Planning Rule’s”)
substantive requirements; (2) failing to meet public participation requirements in
amending forest plans; and (3) failing to analyze whether the ACP project’s needs could
be reasonably met off of national forest land.
1.
2012 Planning Rule
Petitioners assert that the Forest Service violated the NFMA by failing to apply the
substantive requirements of the 2012 Planning Rule to the amendments of the GNF and
MNF Plans’ standards. Specifically, Petitioners assert that the amendments are directly
related to the substantive requirements both in their purpose and their effects.
15
a.
Background
In 2012, the Forest Service updated its Forest Planning Rule, which superseded the
1982 rule and set forth new, substantive requirements for Forest Plans. See 2012
Planning Rule, 77 Fed. Reg. 21,162 (U.S. Dep’t of Agric. Apr. 9, 2012). The updated
substantive requirements in the 2012 Planning Rule apply to Forest Plans developed
under the 1982 rule in certain circumstances. See 36 C.F.R. §§ 219.8–219.11; Sierra
Club, 897 F.3d at 600–01. Specifically, as the 2016 Amendment to the 2012 Planning
Rule clarified, a substantive requirement from the 2012 Planning Rule applies to a Forest
Plan amendment if that requirement is “directly related to the plan direction being added,
modified, or removed by the amendment.” Sierra Club, 897 F.3d at 601 (quoting 36
C.F.R. § 219.13(b)(5) (emphasis supplied in Sierra Club)).
If the substantive requirement is directly related to the amendment, then the
responsible official must “apply such requirement(s) within the scope and scale of the
amendment.” Sierra Club, 897 F.3d at 601 (quoting 36 C.F.R. § 219.13(b)(5)).
Conversely, if the substantive requirement from the 2012 Planning Rule is not directly
related to the amendment, the responsible official is not required to apply it to the
amended Forest Plan. See id. Thus, Petitioners’ arguments on this point turn on whether
the requirements in the 2012 Planning Rule are directly related to the Forest Service’s
amendments to the GWNF and MNF Plans.
A substantive requirement is directly related to the amendment when the
requirement “is associated with either the purpose for the amendment or the effects
16
(beneficial or adverse) of the amendment.” Sierra Club, 897 F.3d at 602 (quoting 2016
Amendment to 2012 Rule, 81 Fed. Reg. 90,723, 90,731 (U.S. Dep’t of Agric. Dec. 15,
2016)); see also 36 C.F.R. § 219.13(b)(5)(i) (“The responsible official’s determination
must be based on the purpose for the amendment and the effects (beneficial or adverse)
of the amendment, and informed by the best available scientific information, scoping,
effects analysis, monitoring data or other rationale.”). Further, regarding the adverse
effects of an amendment, “[t]he responsible official must determine that a specific
substantive requirement is directly related to the amendment when scoping or NEPA
effects analysis for the proposed amendment reveals substantial adverse effects
associated with that requirement, or when the proposed amendment would substantially
lessen protections for a specific resource or use.” 36 C.F.R. § 219.13(b)(5)(ii).
b.
GWNF and MNF Plan Amendments: Purpose Analysis
In its ROD, the Forest Service decided to apply project-specific amendments to a
total of 13 standards in the GWNF and MNF 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 assert that the Forest Service violated the NFMA and the 2012
Planning Rule because it skipped the “purpose” prong of the “directly related” analysis.
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Consistent with our decision in Sierra Club, we conclude that Petitioners are correct. 2
Although the ROD states the rule correctly, see J.A. 36 (“[W]hether a planning regulation
requirement is directly related to an amendment is based upon the amendment’s purpose
or its effect (beneficial or adverse).”), it fails to analyze the purpose of the amendments
and instead moves directly to analyzing the amendments’ effects, see id. at 36–48. This
omission is particularly striking because the Forest Service specifically identified the
purpose and need for the amendments in the ROD:
The purpose of the amendments are [sic] to meet the requirements of the
NFMA and its implementing regulations that projects authorized on
[National Forest System] lands must be consistent with the LRMP.
Without the MNF and GWNF project-specific Forest Plan amendments the
ACP project would not be consistent with some Forest Plan standards
related to soil, riparian, threatened and endangered species, utility corridors,
the ANST, an Eligible Recreational River Area, and scenic integrity
objectives.
Id. at 31.
Indeed, this purpose and need is repeated several times throughout the ROD. See,
e.g., J.A. 27 (“The project-specific amendments to MNF and GWNF LRMP’s [sic]
approved by this decision are needed to allow the ACP Project to be consistent with
LRMP standards.”); id. at 37 (“[T]he purpose of the plan amendments is to ensure
consistency of the ACP Project with the provisions of the two Forest Plans.”). There
2
Faced with a nearly identical situation in Sierra Club v. Forest Service, we
concluded that the Forest Service acted arbitrarily and capriciously by failing to analyze
the purpose of the amendment in its ROD (and instead focusing on only the effects) when
“the clear purpose of the amendment [was] to lessen requirements protecting soil and
riparian resources so that the pipeline project could meet those requirements.” Sierra
Club, 897 F.3d at 603.
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would be no need to amend the Forest Plans to “ensure consistency” if the ACP project
could meet the Forest Plan standards in the first place. In other words, the ROD makes
clear that the purpose of the amendments was to lessen certain environmental
requirements in the GWNF and MNF Plans because the ACP project could not meet
those Plans’ existing requirements.
Accordingly, by failing to analyze whether the substantive requirements of the
2012 Planning Rule are directly related to the purpose of the amendments, the Forest
Service “entirely failed to consider an important aspect of the problem.” Defs. of Wildlife
v. N.C. Dep’t of Transp., 762 F.3d 374, 396 (4th Cir. 2014) (quoting Motor Vehicle Mnfs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). This failure is
significant, because it is clear that the amendments (intended to lessen protections for
soils, riparian areas, and threatened and endangered species in the GWNF and MNF
Plans) are directly related to the 2012 Planning Rule’s substantive requirements for these
same categories: “soil and soil productivity” (36 C.F.R. § 219.8(a)(2)(ii)); “water
resources” (id. § 219.8(a)(2)(iv)); “ecological integrity of riparian areas” (id.
§ 219.8(a)(3)(i)); “ecological integrity of terrestrial . . . ecosystems” (id. § 219.8(a)(1));
“appropriate placement and sustainable management of . . . utility corridors” (id.
§ 219.10(a)(3)); and “recovery of federally listed . . . species” (id. § 219.9(b)).
c.
Ex Post Facto Statements of Purpose
Notwithstanding the Forest Service’s statements of purpose and need in the ROD,
in its briefing and at oral argument the Forest Service attempted to recharacterize the
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purpose of the amendments as “to relax thirteen planning standards just enough to
‘authorize [Atlantic] to use and occupy [National Forest System] lands for the [ACP]
Project’ consistent with the forest plans.” Resp’t’s Br. 18. Meanwhile, Atlantic asserts
that the Forest Service did “explicitly evaluate[] the purpose of the proposed
amendments” and determined that “the purpose of ACP is not directly related to any of
[the 2012 Planning Rule’s] management guidelines.” Intervenor’s Br. 25. Instead,
according to Atlantic, “the purpose of ACP is to ‘serve the growing energy needs of
multiple public utilities and local distribution companies, and Virginia and North
Carolina’ and the ‘purpose and need’ of the ‘proposed action’ is to ‘respond to Atlantic’s
application for a special use permit.’” Id. (quoting J.A. 10, 37). Quite the contrary -- the
ROD does not analyze whether the amendments’ purpose is directly related to the 2012
Planning Rule’s substantive requirements. Rather, the ROD lists the purpose and need of
the amendments but analyzes only the amendments’ effects. See J.A. 36–48. The Forest
Service’s and Atlantic’s attempts to recharacterize the purpose of the amendments
(despite the clear statements of the amendments’ purpose in the ROD) are without merit.
First, the Forest Service asserts that the true purpose of the amendments was just
to authorize the ACP project -- not to lessen environmental protections for certain
resources -- and that “not every amendment with an effect on a particular resource has the
purpose of adjusting the forest plan’s direction for that resource.” Resp’t’s Br. 18–19
(emphasis in original). But this contradicts the Forest Service’s own description of the
amendments’ purpose in both the ROD and in its brief, which begins with the phrase “to
relax thirteen planning standards.” Id. at 18. Relaxing, lessening, loosening -- regardless
20
of the Forest Service’s verb preference, the purpose of the Forest Plan amendments is to
reduce the Plans’ environmental protections for certain resources.
Further, this is not a situation where a proposed project-specific amendment may
have an incidental effect on a Forest Plan standard; rather, the amendments’ entire
purpose is to weaken existing environmental standards in order to accommodate the
ACP, which cannot meet the current standards. 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.
Meanwhile, Atlantic conflates the purpose of the amendments to the Forest Plans
with, first, the overall purpose of the ACP project (to “serve the growing energy needs of
multiple public utilities and local distribution companies, and Virginia and North
Carolina,” Intervenor’s Br. 25), and second, the Forest Service’s reason for taking action
at all (to “respond to Atlantic’s application for a special use permit,” id.). Both
interpretations of “purpose” are facially incorrect applications of the 2012 Planning
Rule’s “directly related” analysis, and neither address the Forest Service’s purpose for
amending the GWNF and MNF Plans. First, the purpose of the plan amendment, not the
ACP project, is the focus of this analysis. Second, the Forest Service’s need to respond
to Atlantic’s application for the SUP is overly broad and does not address the need for
amending the Forest Plans -- clearly, the Forest Service could have “responded” to
Atlantic’s application without the amendments.
Finally, both the Forest Service and Atlantic suggest that only amendments
changing a management standard for the forest as a whole -- and not project-specific
21
amendments -- can trigger the substantive requirements of the 2012 Planning Rule. See
Resp’t’s Br. 18–20 (“A substantive requirement is directly related to the purpose for an
amendment when the amendment’s objective is to adjust the management of the
corresponding forest resource.”); Intervenor’s Br. 26 (“[T]he proposed amendments for
ACP did not change any of the generally applicable standards or guidelines in the forest
plans.”). Neither party offers authority to support this assertion, which is contrary to the
purpose of the 2012 Planning Rule: to promote consistency in the protections for national
forest resources across Forest Plans. See 2012 Planning Rule, 77 Fed. Reg. at 21,162. If
the Forest Service could circumvent the requirements of the 2012 Planning Rule simply
by passing project-specific amendments on an ad hoc basis, both the substantive
requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency
requirement would be meaningless.
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 Forest Service acted arbitrarily and capriciously in concluding
otherwise.
d.
Effects Analysis
Although we need not reach the “effects” prong of the analysis in light of our
conclusion that the purpose of the amendments is directly related to the 2012 Planning
22
Rule’s substantive requirements, the Forest Service’s assertion that the Plan amendments
will not have substantial adverse effects warrants additional discussion.
As noted above, a substantive requirement is directly related to a Forest Plan
amendment when the requirement “is associated with . . . the effects (beneficial or
adverse) of the amendment.” Sierra Club, 897 F.3d at 602 (quoting 2016 Amendment to
2012 Rule, 81 Fed. Reg. at 90,731); see also 36 C.F.R. § 219.13(b)(5)(i). The Forest
Service asserts that an adverse effect must be “substantial” in order to be directly related
to a substantive provision in the 2012 Planning Rule. 3 When asked at oral argument how
the Forest Service defines “substantial adverse effects,” counsel for the Forest Service
responded:
COUNSEL: [T]he best guidance for that issue can be found in the
preamble to the 2012 [Planning] Rule where the Forest Service says that
rarely, if ever, will a project-specific amendment rise to the level of having
a substantial adverse effect on these resources.
3
It is not necessary for us to determine whether this characterization of the
regulations is accurate because, for the reasons explained below, we conclude that the
Forest Service’s determination that the amendments will not have substantial adverse
effects was arbitrary and capricious. Nevertheless, we note that the regulation at issue --
36 C.F.R. § 219.13 -- does not define “adverse effects” as including only substantial
effects; rather, it says that the applicable substantive requirement from the 2012 Planning
Rule must apply when the effects are substantial. See 36 C.F.R. § 219.13(b)(5)(ii).
Curiously, there is no corresponding guidance for beneficial effects. In other words,
under the Forest Service’s interpretation of the regulation, only “substantial” adverse
effects could trigger application of a substantive requirement, but any beneficial effect at
all would trigger the same substantive requirement. The Forest Service does not explain
why the regulations would intend to make it easier to pass amendments that harm the
environment (by not requiring application of the substantive requirements, which aim to
protect the environment, unless that harm is substantial) but more difficult to pass
amendments that benefit the environment.
23
...
COURT: How can that be, rarely if ever will something rise to have a
substantial adverse effect on the forest? How many trees do you cut down
before it is a substantial adverse effect? Maybe not one. All of them?
COUNSEL: The way the Forest Service stated it in the 2012 preamble to
[the Planning] Rule was that it was going to look at the impact of the
resource over the entire forest.
Oral Argument at 22:55–24:04, Cowpasture River Preservation Ass’n v. Forest Serv.,
No. 18-1144 (4th Cir. Sept. 28, 2018), http://www.ca4.uscourts.gov/oral-argument/listen-
to-oral-arguments (hereinafter “Oral Argument”).
It is nothing short of remarkable that the Forest Service -- the federal agency
tasked with maintaining and preserving the nation’s forest land -- takes the position that
as a bright-line rule, a project-specific amendment, no matter how large, will rarely, if
ever, cause a substantial adverse effect on a national forest. And it is even more
remarkable that the agency is unable to say what would constitute a substantial adverse
effect on the forest.
Indeed, counsel’s response did not answer the court’s question, and the Forest
Service has never explained (in its briefing nor at argument) what makes an adverse
effect “substantial.” Even more telling, however, is that the “rarely, if ever” language
used by counsel is nowhere to be found in the preamble to the 2012 Planning Rule, nor in
any other Forest Service guidance that the court could find. The closest language to
counsel’s assertion that the court could identify is in the preamble to the 2016
Amendment to the 2012 Planning Rule, which states, “[i]t is unlikely that a change in land
allocation for a small area would have substantial adverse effects.” 2016 Amendment to
24
2012 Rule, 81 Fed. Reg. at 90,728. This language was a response by the Forest Service
to a public comment which was concerned that the proposed rule (the 2016 Amendment)
might impose a burden on small changes to land allocation. The Forest Service’s full
response was as follows:
The 2012 rule did not require that every resource or use be present in every
area. The Department clarifies in this final rule that directly related specific
substantive requirements within §§ 219.8 through 219.11 apply within the
scope and scale of the amendment. Changes in land allocation for a small
area would likely require a similarly narrow application of the directly
related substantive requirements, depending on the purpose and effects of
the changes. It is unlikely that a change in land allocation for a small area
would have substantial adverse effects.
Id.
Even assuming that this language from the 2016 Amendment’s preamble is what
counsel was referring to during argument, it still does not provide any support for the
Forest Service’s interpretation of “substantial adverse effects.” A “change in land
allocation for a small area” is plainly not the same as generalizing to any project-specific
amendment, and “unlikely” is a far cry from “rarely, if ever.” Perhaps this is why
counsel struggled to define what “rarely, if ever” would mean in this context.
Thus, we find no basis in the law for the Forest Service’s assertion that “rarely, if
ever, will a project-specific amendment rise to the level of having a substantial adverse
effect” on the natural forests.
In any event, the Forest Service’s application of the “effects” prong of the directly
related test was still flawed. In each instance in the ROD where the Forest Service
concluded that the 2012 Planning Rule’s substantive requirements were not “directly
25
related” to the Plan amendments, the ROD states that the amendment “will not cause
substantial long-term adverse effects.” J.A. 39, 41, 43 (emphasis supplied). But nowhere
do the regulations (nor does the ROD, nor does the Forest Service’s brief) state that a
substantial adverse effect must be long term for the substantive requirement in the 2012
Planning Rule to be “directly related” to the amendment.
The Forest Service’s strained and implausible interpretations of “substantial
adverse effects” are especially striking in light of the significant evidence in the record
that the GWNF and MNF Plan amendments would cause substantial adverse effects on
the forests. See, e.g., J.A. 25 (“Sedimentation modeling indicates annual soil loss will be
200 to 800 percent above baseline erosion during the first year of construction, returning
to pre-construction levels within 5 years following restoration”); id. at 2320 (“Full
recovery of forested sites would take many decades.”); id. at 2351 (“It is unsubstantiated
as to how [erosion] increases of that magnitude are considered moderate and impacts will
be temporary and minimal.”).
The lengths to which the Forest Service apparently went to avoid applying the
substantive protections of the 2012 Planning Rule -- its own regulation intended to
protect national forests -- in order to accommodate the ACP project through national
forest land on Atlantic’s timeline are striking, and inexplicable.
Accordingly, we conclude that the Forest Service’s determination that the GWNF
and MNF Plan amendments would not have substantial adverse effects on the forests was
arbitrary and capricious.
26
e.
Remand to the Forest Service
Because the 2012 Planning Rule requirements for soil, riparian resources, and
threatened and endangered species are directly related to the purpose and effect of the
GWNF and MNF Forest Plan amendments, the Forest Service must “apply [those]
requirement[s] within the scope and scale of the amendment.” Sierra Club, 897 F.3d at
603 (quoting 36 C.F.R. § 219.13(b)(5) (alterations in Sierra Club)). Accordingly, we
remand to the Forest Service for proper application of the Planning Rule requirements for
soil, riparian resources, and threatened and endangered species to the Forest Plan
amendments.
The Forest Service contends that remand is unnecessary because the Plan
amendments already meet the substantive requirements of the 2012 Planning Rule. Thus,
the Forest Service asserts, any error in applying the 2012 Planning Rule was harmless.
We find no basis to support such a conclusion. In fact, the ROD suggests just the
opposite is true: in its analysis of the amendments’ compliance with the 2012 Planning
Rule’s substantive requirements, the Forest Service explicitly stated when an amendment
met the applicable substantive requirement. For example, regarding the GWNF Plan
amendment for utility corridors, the ROD states:
The FEIS evaluated a variety of options to transport natural gas and
adequately analyzed the appropriate placement and sustainable
management of the ACP. Consequently, I find this amendment meets the
36 CFR 219.10(a)(3) planning rule requirement. Since the amendment
meets the rule requirement, there is no need to make a further determination
as to whether the rule requirement is directly related to it.
27
J.A. 41–42 (emphasis supplied); see also id. at 44, 46, 47, 48 (similarly concluding that
the Plan amendments for the ANST, scenic integrity objectives, road reconstruction, and
management of old growth, respectively, meet the 2012 Planning Rule’s substantive
requirements and thus “there is no need” to determine whether the substantive
requirement is directly related to the amendment).
Yet, tellingly, the Forest Service specifically did not conclude that the GWNF and
MNF Plan amendments for soils, riparian areas, and threatened and endangered species
met the applicable 2012 Planning Rule’s substantive requirement. Instead, it concluded
(incorrectly) that in each case, the substantive requirements were not directly related to
the applicable Plan amendment. According to the ROD, conducting the directly related
analysis would have been unnecessary if the amendment in fact satisfied the substantive
requirement: where “the amendment meets the rule requirement, there is no need to make
a further determination as to whether the rule requirement is directly related to it.” J.A.
41–42 (emphasis supplied)). Accordingly, the case must be remanded.
2.
Public Participation Requirements
Petitioners further assert that the Forest Service violated the NFMA because it
provided no opportunity for public comment for four of the amended forest plan
standards. Even assuming Petitioners are correct (a point the Forest Service disputes),
Petitioners do not attempt to demonstrate “that the outcome of the process would have
differed in the slightest had notice been at its meticulous best.” Friends of Iwo Jima v.
Nat’l Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir. 1999). Without even an
28
allegation of prejudice, Petitioners fail to carry their burden to prove that any notice-
related deficiency was prejudicial. Accordingly, we reject this argument.
3.
Accommodation of the ACP Project on Non-National Forest Land
Petitioners assert that the Forest Service violated NEPA by failing to consider
alternatives that avoid national forest land. Relatedly, Petitioners argue that the Forest
Service violated the GWNF and MNF Plans and the NFMA because it failed to
demonstrate that the ACP project’s needs could not be reasonably met on non-national
forest lands.
The GWNF Plan limits “Special Use Authorizations” to “needs that cannot be
reasonably met on non-[National Forest System] lands or that enhance programs and
activities.” J.A. 4068 (emphasis supplied). Similarly, an MNF Plan goal states:
“[p]roposed special uses of [National Forest System] lands . . . are considered that meet
public needs, are consistent with direction for other Forest resources and management
prescriptions, and cannot be accommodated off the National Forest.” J.A. 4069
(emphasis supplied). Finally, the Forest Service’s regulations state: “[a]n authorized
officer shall reject any proposal . . . if, upon further consideration, the officer determines
that: . . . the proposed use would not be in the public interest.” 36 C.F.R.
§ 251.54(e)(5)(ii). The Forest Service Manual provides further guidance on
§ 251.54(e)(5)(ii), directing that a proposed use should be authorized as “in the public
interest” “only if . . . the proposed use cannot reasonably be accommodated off of
National Forest System lands.” Forest Serv. Manual, Addendum to Pet’rs’ Br. 65–66
29
(emphasis supplied). The Forest Service Manual further directs, “[d]o not authorize the
use of National Forest System lands solely because it affords the applicant a lower cost or
less restrictive location.” Id. at 66.
We agree that the Forest Service violated its obligations under the NFMA and its
own Forest Plans because it failed to demonstrate that the ACP project’s needs could not
be reasonably met on non-national forest lands. The Forest Service’s ROD adopted and
incorporated FERC’s alternative routes analysis in the EIS, but the EIS applied a different
standard than the one imposed on the Forest Service by the NFMA and its own Forest
Plans. In the EIS, FERC considered only whether a route alternative “confers a
significant environmental advantage over the proposed route.” J.A. 1533. This is a
significantly different standard than whether the proposed use “cannot reasonably be
accommodated off of National Forest System lands.” Forest Serv. Manual, Addendum to
Pet’rs’ Br. 65–66 (emphasis supplied); cf. Sierra Club, 897 F.3d at 604–05 (concluding
that the Bureau of Land Management violated its MLA obligations where it failed to
analyze whether alternative pipeline routes were “impractical,” as required by the
Bureau’s regulations, and instead adopted an EIS that considered only whether an
alternative route offered a “significant environmental advantage”).
Accordingly, adopting FERC’s EIS was not sufficient for the Forest Service to
fulfill its obligations under the Forest Service Manual and its own Forest Plans, and the
Forest Service did not purport to undertake this required analysis anywhere else in the
ROD.
30
The Forest Service asserts that it “determines project consistency only ‘with
respect to standards and guidelines,’ not general forest planning ‘goals’ like
Monongahela LS17.” Resp’t’s Br. 24 (quoting 2012 Planning Rule, 77 Fed. Reg. at
21,241). As an initial matter, the Forest Service regulations and the Forest Service
Manual apply to both the GWNF and the MNF, so even if the court were to disregard the
MNF goal cited by Petitioners, the proposed use of national forest land must still fit the
Forest Service Manual’s definition of “in the public use,” which contains essentially the
same requirement as the MNF goal: that the proposed use cannot be reasonably
accommodated outside of the national forest. See Forest Serv. Manual, Addendum to
Pet’rs’ Br. 65–66.
However, the Forest Service’s assertion about forest planning goals and objectives
deserves additional discussion. The regulatory guidance quoted by the Forest Service --
from the preamble to the 2012 Planning Rule, 77 Fed. Reg. at 21,241 -- is a response by
the Forest Service to a public comment regarding the 2012 Planning Rule’s consistency
requirement, which states:
The Forest Service policy was that consistency could only be
determined with respect to standards and guidelines, or just standards,
because an individual project alone could almost never achieve objectives
and desired conditions. . . .
The Department continues to believe that the consistency requirement
cannot be interpreted to require achievement of the desired conditions or
objectives of a plan by any single project or activity, but we believe that we
can provide direction for consistency to move the plan area toward desired
conditions and objectives, or to not preclude the eventual achievement of
desired conditions or objectives, as well as direction for consistency with
the other plan components.
31
77 Fed. Reg. at 21,241 (emphasis supplied). In other words, even if the Forest Service is
not required to conclude that an individual project alone meets a forest planning goal, it is
not free to disregard the goal entirely -- as the Forest Service apparently wishes to do
here.
The Forest Service was aware of its obligation to determine that the ACP project
could not be reasonably accommodated on non-national forest land from the beginning of
the project. Indeed, the Forest Service specifically cited to the Forest Service Manual and
Forest Plan requirements in its initial scoping comments in response to FERC’s Notice of
Intent to Prepare an EIS. See J.A. 3593 (“[T]he analysis must address Forest Service
Manual direction that restricts special uses to those that cannot reasonably be
accommodated on non-National Forest System lands (FSM 2703.2).”); id. at 3593–94
(stating that the GWNF Plan requires special use authorizations be “[l]imit[ed] to needs
that cannot be reasonably met on non-[National Forest System] lands or that enhance
programs and activities”). The Forest Service’s failure to undertake this analysis violated
the NFMA. Accordingly, we remand to the Forest Service for proper analysis of whether
the ACP project’s needs can be reasonably met on non-national forest lands, in
compliance with the NFMA and the GWNF and MNF Plans.
B.
National Environmental Policy Act
As this court recently explained in Sierra Club v. Forest Service, Congress enacted
NEPA “to reduce or eliminate environmental damage.” 897 F.3d at 590 (quoting Dep’t
of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004)). “‘NEPA itself does not mandate
32
particular results in order to accomplish these ends,’ but rather, ‘imposes only procedural
requirements on federal agencies with a particular focus on requiring agencies to
undertake analyses of the environmental impact of their proposals and actions.’” Id.(quoting Dep’t of Transp., 541 U.S. at 756–57).
NEPA requires that agencies consider alternatives to the proposed action, 40
C.F.R. § 1502.14, and “take a hard look at environmental consequences,” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation marks
omitted). To that end, whenever a federal agency proposes to take a “major Federal
action[] significantly affecting the quality of the human environment,” the agency must
prepare a detailed EIS describing the likely environmental effects of the proposal, any
unavoidable adverse environmental effects, and potential alternatives. 42 U.S.C.
§ 4332(2)(C). Consideration of alternatives “is the heart of the [EIS].” 40 C.F.R.
§ 1502.14.
In this case, FERC was the lead agency charged with issuing the EIS, and the
Forest Service acted as a cooperating agency by assisting FERC to analyze the
environmental impacts to 430 acres of national forest lands on the proposed ACP route.
As a cooperating agency, the Forest Service may adopt FERC’s EIS only if it undertakes
“an independent review of the [EIS]” and “concludes that its comments and suggestions
have been satisfied.” 40 C.F.R. § 1506.3(c); see also Sierra Club, 897 F.3d at 590. It
must also ensure that the EIS is “adequate” under NEPA regulations. 40 C.F.R.
§ 1506.3(a). In reviewing an EIS, the court’s responsibility is to “determine whether the
[agency] has considered the relevant factors and articulated a rational connection between
33
the facts found and the choice made.” Sierra Club, 897 F.3d at 594 (quoting Balt. Gas &
Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)).
Petitioners assert that the Forest Service violated NEPA by (1) failing to study
alternative off-forest routes, and (2) adopting a FEIS that failed to take a hard look at
landslide risks, erosion, and degradation of water quality.
1.
Study of Alternative Off-Forest Routes
As noted above, an agency may only adopt an EIS if it “meets the standards for an
adequate statement” under the applicable regulations. 40 C.F.R. § 1506.3(a). One
applicable regulation provides:
If a [DEIS] is so inadequate as to preclude meaningful analysis, the agency
shall prepare and circulate a revised draft of the appropriate portion. The
agency shall make every effort to disclose and discuss at appropriate points
in the draft statement all major points of view on the environmental impacts
of the alternatives including the proposed action.
Id. § 1502.9(a) (emphasis supplied). Petitioners assert that FERC’s FEIS was inadequate
because it failed to sufficiently study alternative pipeline routes for the ACP that avoided
national forest lands. According to Petitioners, the Forest Service violated NEPA
because it adopted FERC’s inadequate EIS without undertaking the required
“independent review,” and because the FEIS did not satisfy the Forest Service’s earlier
comments and suggestions on the DEIS. Id. § 1506.3(c).
In counter, the Forest Service asserts that once FERC had issued the Certificate of
Convenience and Public Necessity, the choice before the Forest Service was simple:
either approve the pipeline route as it was authorized by FERC or deny the right of way.
34
According to the Forest Service, since FERC was responsible for analyzing alternative
pipeline routes, the Forest Service reasonably relied on that alternatives analysis in
adopting the FEIS.
The Forest Service frames Petitioners’ argument as an impermissible collateral
attack on FERC’s actions, but that ignores the Forest Service’s obligation to
“independent[ly] review” the EIS and ensure its comments and suggestions to the lead
agency were satisfied before adopting it. 40 C.F.R. § 1506.3(c). Neither the Forest
Service nor Atlantic points to evidence in the record to demonstrate that the Forest
Service undertook the required independent review. To the contrary, the record suggests
that they did not. Instead, the record reflects that at first the Forest Service strenuously
objected to the lack of non-national forest route alternatives in the DEIS, but it eventually
reversed course and adopted the FEIS even though the analysis of non-national forest
alternatives was unchanged from the DEIS -- all in an effort to prevent Atlantic from
having to obtain congressional approval for the project to cross the ANST.
From the beginning, the Forest Service made clear through its comments to FERC
and Atlantic that the EIS would need to analyze non-national forest alternative routes and
justify the necessity of any proposed route crossing of national forest lands. The Forest
Service’s scoping comments for the ACP project noted:
It is . . . necessary to understand why any proposed routes (preferred or
alternative) crossing [National Forest System] lands are selected over those
not crossing [National Forest System] lands. Therefore, the EIS should
contain a comparison of project effects for routes crossing [National Forest
System] lands versus routes not crossing [National Forest System] lands.
Discussions and other relevant information should also be provided to
justify the necessity of any proposed route crossing [National Forest
35
System] lands. . . . Comparisons of the alternatives should be based on
analyses of site-specific impacts to resources potentially affected by the
proposed project, which may not necessarily be correlated with the
footprint of the proposed project.
J.A. 3593.
Then, FERC’s DEIS indicated that “[a] significant factor in siting ACP was the
location at which the pipeline would cross the ANST.” J.A. 3207. As the DEIS stated,
crossing the ANST on NPS lands would require congressional approval. “Because of this
legislative process” -- that is, to avoid obtaining congressional approval to cross the
ANST on NPS lands -- “Atlantic considered locations where the ANST was located on
[Forest Service lands], which significantly constrained the pipeline route and severely
limits opportunities for avoiding and/or minimizing the use of [National Forest System]
lands.” Id. at 3207–08 (emphasis supplied). Because of this, and even though ground
resource surveys had not been conducted, FERC concluded that it “ha[d] not identified or
received any information that suggests the shorter pipeline route through the National
Forests has significantly greater impacts to sensitive resources than the alternative” that
avoided national forest lands. Id. at 3208. In response to this analysis of off-forest routes
in the DEIS, the Forest Service commented:
No analysis of a National Forest Avoidance Alternative has been
conducted, and environmental impacts of this alternative have not been
considered or compared to the proposed action. Therefore, the Forest
Service cannot support the recommendation that the National Forest
Avoidance Alternative be dropped from consideration. In our scoping
comments, we requested that all alternatives, including a National Forest
Avoidance Alternative, be fully addressed in regard to their feasibility and
environmental effects. We hereby reiterate that request.
36
Id. at 2454. Further, in response to the DEIS’s assertion that in general, as the length of a
pipeline route increases, the environmental impacts also increase, the Forest Service
commented: “Miles of line do not necessarily equate to severity of the environmental
impact. The nature of the resources to be impacted needs to be considered. The Forest
Service has previously requested that such comparative information on impacts be
obtained and considered for alternatives to the proposed action.” Id. at 2451.
Despite the Forest Service’s concerns regarding the lack of study of off-forest
alternatives, the “National Forest Avoidance Route Alternatives” section in the FEIS is
identical to the DEIS. Nevertheless, on the very same day that FERC issued the FEIS,
the Forest Service released its draft ROD, which proposed adopting the FEIS (and,
consequently, the unchanged alternatives analysis). Without explaining the Forest
Service’s change of position from the scoping comments or its comments on the DEIS,
the draft ROD states: “FERC’s evaluation concluded that the major pipeline route
alternatives and variations do not offer a significant environmental advantage when
compared to the proposed route or would not be economically practical.” J.A. 1411. The
Forest Service’s discussion on this point was essentially identical in its response to
objections filed to the draft ROD and in its final ROD. 4
4
The Forest Service’s response to objections filed to the draft ROD stated:
The Project Record shows consideration of alternatives that avoid National
Forests. One such alternative would have increased the route by 43 miles to the
south and another would have increased the route by 15 miles to the north. The
FERC noted, as a general matter, environmental impacts increase as the length of
a pipeline route increases. Furthermore, the FERC lacked information concluding
(Continued)
37
The Forest Service asserts, “Petitioners present no record evidence that FERC did
not” continue to analyze non-national forest alternatives following the Forest Service’s
comments on the DEIS. Resp’t’s Br. 39. But no such analysis is apparent anywhere in
the record, and most tellingly, neither the Forest Service nor Atlantic even attempt to
identify evidence to demonstrate that FERC did anything to address the Forest Service’s
concerns about off-forest alternative routes. What is apparent from the record is that: (1)
the Forest Service repeatedly expressed concerns about the need to analyze alternative
pipeline routes that avoided the national forests (particularly in the scoping comments,
comments on the draft resource reports, and the DEIS); (2) FERC’s analysis of
alternative pipeline routes remained unchanged from the DEIS to the FEIS, and there is
no other evidence apparent from the record that FERC addressed the Forest Service’s
concerns about off-forest alternative routes; and (3) the Forest Service never explains, in
a shorter overall route through NFS lands would have significantly greater impacts
on sensitive resources . . . . Therefore, it was concluded these alternatives would
not provide a significant environmental advantage over a shorter route that passes
through National Forests.
J.A. 676. Similarly, the final ROD stated:
The proposed crossing of the MNF and GWNF received a considerable amount of
comment and criticism from stakeholders, and accordingly, resulted in a number
of evaluated route alternatives and variations. FERC evaluated . . . several
variations to avoid or minimize crossing of [Forest Service] and [NPS] lands. . . .
FERC’s evaluation concluded the major pipeline route alternatives and variations
do not offer a significant environmental advantage when compared to the
proposed route or would not be economically practical.
Id. at 48.
38
the ROD or elsewhere, how its concerns about off-forest alternative routes were
assuaged.
The chain of events surrounding the Forest Service’s sudden acquiescence to the
alternatives analysis in the FEIS is similar to that in Sierra Club v. Forest Service, where
we determined that the Forest Service had acted arbitrarily and capriciously in adopting
the sedimentation analysis in the FEIS for a different pipeline project. See Sierra Club,
897 F.3d at 594–96. Here, like in Sierra Club, “[g]iven the circumstances, we simply
cannot conclude that the Forest Service undertook an independent review and determined
that its comments and concerns were satisfied” when it seemingly dropped its demand
that off-forest alternative routes be studied before the ACP was authorized without any
further analysis. Id. at 595. In light of this, and particularly considering the Forest
Service’s earlier skepticism that location decisions for the ACP were made solely to
avoid congressional approval, 5 we hold that adopting the unchanged alternatives analysis
in the FEIS was arbitrary and capricious.
2.
Analysis of Landslide Risks, Erosion, and Degradation of Water Quality
Petitioners further contend that the Forest Service’s deficient analysis of landslide
risks, erosion impacts, and water quality degradation from the ACP project violated
5
See, e.g., J.A. 3661 (“[T]he report should . . . not base all of the routing decisions for
the [ANST] crossing on project timeline issues with getting [c]ongressional approval.
The proposed location for crossing the [ANST] need[s] to be based on sound resource
and compelling public interest determinations.”).
39
NEPA. Specifically, Petitioners assert that the Forest Service abandoned its request for
ten site-specific stabilization designs prior to granting the SUP, which it previously stated
were necessary to evaluate effects under NEPA, and instead accepted the two that
Atlantic provided as “adequate” without explanation for this change in position.
Additionally, Petitioners assert that Atlantic’s erosion and sedimentation mitigation plan
had not been determined at the time the FEIS and ROD were issued. Thus, the Forest
Service did not know if the mitigation measures it relied on to approve the project would
actually be successful. As a result, Petitioners argue that the FEIS does not provide “a
thorough investigation into the environmental impacts of [the] agency’s action.” Pet’rs’
Reply Br. 29 (quoting Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir.
2005)). For its part, the Forest Service contends that it thoroughly analyzed the impacts
of the proposed route on national forest lands, and that NEPA does not require an agency
to formulate and adopt a complete mitigation plan before it can act.
As noted above, NEPA does not require the Forest Service to ensure
“environment-friendly outcomes.” Nat’l Audubon Soc’y, 422 F.3d at 184. Rather, “an
agency decision is acceptable even if there will be negative environmental impacts
resulting from it, so long as the agency considered these costs and still decided that other
benefits outweighed them. ‘NEPA merely prohibits uninformed -- rather than unwise --
agency action.’” Id. (quoting Robertson, 490 U.S. at 350–51 (citations omitted)).
Nevertheless, an EIS must still “contain a detailed discussion of possible mitigation
measures.” Robertson, 490 U.S. at 351. Further, NEPA requires “particular care” “when
40
the environment that may be damaged is one that Congress has specially designated for
federal protection,” such as national forests. Nat’l Audubon Soc’y, 422 F.3d at 186–87.
We conclude that the Forest Service violated NEPA by failing to take a hard look
at the environmental consequences of the ACP project. The Forest Service expressed
serious concerns that the DEIS lacked necessary information to evaluate landslide risks,
erosion impacts, and degradation of water quality, and it further lacked information about
the effectiveness of mitigation techniques to reduce those risks.
Specifically, the record reflects that the Forest Service voiced concerns about (1)
authorizing the SUP without ten site-specific stabilization designs to demonstrate the
effectiveness of Atlantic’s BIC program; (2) the overly high efficiency rate of erosion
control devices used in the sedimentation analysis (96 percent); (3) relying on the use of
water bars as a mitigation technique, when Atlantic had not analyzed whether water bars
would mitigate or exacerbate erosion effects during construction; and (4) Atlantic’s use
of averaged versus episodic sediment calculations to analyze the water resource impacts
from increases in sedimentation due to the ACP project.
However, the FEIS did not address any of these concerns; rather, it made clear that
this incomplete and/or inaccurate analysis in the DEIS remained incomplete. The FEIS
stated (among other examples): “slope instability/landslide risk reduction measures have
not been completed or have not been adopted,” J.A. 1615; “[Atlantic is] currently
working to provide documentation of the likelihood that their proposed design features
and mitigation measures would minimize the risk of landslides in the project area,” id. at
1616 (emphasis supplied); “specific [erosion] effects are unknown” and “it is unclear if
41
erosion control and rehabilitation measures would meet the standards of the Forest
Plan[s],” id. at 1659; and “water resource impacts from sedimentation are largely
uncertain,” id. at 1663.
Accordingly, the FEIS could not have satisfied the Forest Service’s concerns that
the DEIS lacked necessary information to evaluate the environmental consequences of
the pipeline. Indeed, the FEIS conceded that the Forest Service’s concerns remained
unresolved. Nevertheless, as Atlantic’s deadlines drew near, the Forest Service
disregarded these concerns and adopted the FEIS -- including its conclusions that
landslide risks, erosion impacts, and degradation of water quality remained unknown --
the very same day FERC issued it. To support its decision to approve the project and
grant the SUP, the Forest Service relied on the very mitigation measures it previously
found unreliable. This was insufficient to satisfy NEPA, and did not constitute the
necessary hard look at the environmental consequences of the ACP project.
a.
Landslide Risks
The Forest Service clearly explained its concerns about landslides, erosion, and
pipeline safety and stability in its October 24, 2016 letter requesting the ten site-specific
stabilization designs:
The route for the [ACP project] proposed by [Atlantic] would cross
some very challenging terrain in the central Appalachians. 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. These hazards are exacerbated by high annual rates of precipitation
and the potential for extreme precipitation events.
42
Similar hazards on other smaller pipeline projects in the central
Appalachians have led to slope failures, erosion and sedimentation
incidents, and damage to aquatic resources. Therefore, the [Forest Service]
is concerned that crossing such challenging terrain with a much larger
pipeline could present a high risk of failures that lead to resource damage.
J.A. 3379.
In addition to highlighting these concerns, the Forest Service’s October 24, 2016
letter made clear that the ten selected sites were “merely representative sites,” required
for the Forest Service to determine whether the ACP project could be permitted in the
GWNF and MNF. J.A. 3379. In other words, the site designs were needed to aid the
Forest Service in its decision whether to permit the pipeline at all. Accordingly, the
Forest Service’s later decision to only require the designs prior to construction was not
simply a question of timing. It meant the Forest Service approved the pipeline without
information it previously determined was necessary to making its decision, and it did so
without acknowledging, much less explaining, its change in position.
The Forest Service’s reversal is particularly puzzling considering the reason it
requested the site-specific stabilization designs in the first place: to demonstrate that
Atlantic’s BIC program could actually work in particular conditions, rather than simply
being a “cookbook with generalities.” J.A. 2514. The Forest Service also conducted a
literature review on Atlantic’s BIC incremental controls to attempt to determine the
effectiveness of these measures. Far from proving the effectiveness of the BIC program,
the literature review concluded: “[T]he majority of these BIC incremental controls are
either too new to provide any real insight to the effectiveness on erosion control,
43
especially on steep slopes, or there has not been any research to prove the effectiveness of
these incremental controls for adequate erosion control.” Id. at 3703.
Thus, despite its own well-documented concerns with Atlantic’s mitigation plans,
the Forest Service abandoned its request for the eight site-specific stabilization designs
and adopted the FEIS, all without science-based evidence of the BIC program’s
effectiveness. This falls far short of NEPA’s hard look requirement, and the Forest
Service’s brief, conclusory letter stating that the information provided by Atlantic was
“adequate” is insufficient to show that the Forest Service’s concerns had been addressed
as NEPA requires. J.A. 1881.
Perhaps nothing demonstrates the dangers of the Forest Service’s insufficient
analysis of landslide risks clearer than the FEIS’s use of the Columbia Gas Transmission
pipeline as an example of an existing pipeline in the Appalachian Mountains that safely
crosses karst terrain. See, e.g., J.A. 1589, 1609 (“There are differences between ACP and
corridor and the Columbia pipeline project and corridor, and so, there can be more
potential for project-induced slope failures in the ACP corridor. But the decades of slope
stability performance of the Columbia pipeline corridor on slopes generally similar to
those along the ACP pipeline route is relevant information to consider.”). Significantly,
during the briefing of this case, a landslide in Marshall County, West Virginia, caused the
Columbia pipeline -- highlighted by the Forest Service for its safety and stability -- to
44
rupture and explode. 6 Clearly, the Forest Service’s concerns about landslide risks and
pipeline safety highlighted in its October 24, 2016 letter deserve serious consideration,
for the protection of both the environment and the public.
b.
Erosion Impacts and Degradation of Water Quality
In adopting the FEIS and approving the pipeline, the Forest Service concluded that
because of “mitigation measures, impacts on groundwater and surface waters will be
effectively minimized or mitigated.” J.A. 25. However, as explained above, the Forest
Service had previously expressed serious concerns about the extensive erosion and
sedimentation that the ACP project could cause, and it additionally questioned the
mitigation techniques that Atlantic relied on to reduce those impacts. This is particularly
true regarding the overly high efficiency rate of erosion control devices used in the
sedimentation analysis (96 percent), the use of water bars as a mitigation technique, and
the use of averaged versus episodic sediment calculations to analyze water resource
impacts in the sedimentation analysis. Despite these concerns, and the FEIS’s conclusion
that “specific [erosion] effects [remained] unknown,” id. at 1659, the Forest Service
6
See, e.g., Anya Litvak, Landslide Caused West Virginia Pipeline Explosion,
TransCanada Reports, Pittsburgh Post-Gazette (July 11, 2018), http://www.post-
gazette.com/business/powersource/2018/07/11/Landslide-caused-pipeline-explosion-
Columbia-Gas-reported/stories/201807100176. We can take judicial notice of this fact
because it “is not subject to reasonable dispute” and “can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b).
45
nevertheless relied on the incomplete analysis in the FEIS and disregarded its concerns
about the effectiveness of the mitigation techniques.
For example, in the draft biologic evaluation, Atlantic asserted that installation of
erosion control devices would “reduce erosion by about 96 percent.” J.A. 2633. The
Forest Service criticized this conclusion in its March 10, 2017 comments to the draft
biologic evaluation, stating, “Use of lab testing and efficiency rates are inappropriate for
steep slope pipeline construction. Update model with more conservative assumptions
about containment efficiencies. Document the literature references that apply to
efficiencies in the field, particularly mountainous terrain in WV and VA.” Id. at 2357.
However, Atlantic did not comply with the Forest Service’s request, and the 96
percent erosion control efficiency rate remained in Atlantic’s August 2017 Soil Erosion
and Sedimentation Modeling Report. See J.A. 909 (“Installation of [erosion control
devices] was predicted to reduce erosion by about 96 percent.”). We note that this report
was issued five months after the Forest Service directed Atlantic to update its erosion
efficiency rate, one month after the Forest Service issued its draft ROD, just two months
before the final version of the COM Plan was issued, and only three months before the
Forest Service issued the final ROD. Accordingly, we see no evidence in the record that
the Forest Service’s concerns regarding the 96 percent erosion control efficiency rate
were ever resolved; nonetheless, the Forest Service ultimately relied on this figure to
determine that Atlantic’s proposed mitigation measures would effectively reduce erosion
and sedimentation impacts from the ACP project.
46
During oral argument, Atlantic claimed that the Forest Service’s concern about the
96 percent efficiency rate was resolved because Atlantic agreed not to use silt fences as a
mitigation technique in certain areas, which it claims were the cause of the “overly
optimistic” efficiency rate. Oral Argument at 37:50–39:41. As counsel for Atlantic
stated:
The Forest Service never accepted the 96 percent efficiency. Indeed, that
model was predicated on a standard erosion and sediment control device
called the silt fence. Instead of debating . . . over the percent effectiveness
of the silt fence, the Forest Service made a much more direct and
compelling move, which was to prohibit the use of silt fences in the areas
over which it had concern. . . Atlantic committed not to use the silt fences
that were the subject of the overly optimistic erosion sediment model.
Id.
As an initial matter, we note that the Soil Erosion and Sedimentation Modeling
Report attributes the 96 percent erosion control efficiency rate to all erosion control
devices “such as silt fences, waterbars, and mulch application,” not just silt fences. J.A.
929. Additionally, the final draft of the COM Plan is riddled with uses of silt fences as
proposed mitigation techniques. See, e.g., id. at 303, 409, 473, 475, 586, 587.
However, even if Atlantic is correct that it committed not to use silt fences in
certain areas, this is beside the point. The use of silt fences was not the problem. The
problem, as the Forest Service itself pointed out, was assuming that these devices would
function nearly perfectly to reduce erosion and sediment, despite a wealth of evidence to
the contrary. This assumption remained in the August 2017 Soil Erosion and
Sedimentation Modeling Report. See J.A. 908 n.2 (“The effectiveness predicted by the
model is influenced by slope, soil, groundcover, and type of erosion control device; the
47
model assumes perfect installation, soil retention, and maintenance.” (emphasis
supplied)). This assumption infected the sedimentation model -- the model that produced
the “200 to 800 percent above baseline erosion” estimate cited in in the ROD. Id. at 25.
Crucially, we can identify no other more conservative efficiency rate used to
correct the sedimentation model which drove the Forest Service’s erosion and
sedimentation analysis. Indeed, the use of the 96 percent efficiency rate in the August
2017 Soil Erosion and Sedimentation Modeling Report, which was issued only three
months before the Forest Service’s final ROD, suggests that the Forest Service’s concern
with Atlantic’s overly high efficiency rate for erosion control devices was never resolved.
See J.A. 908–09 (“Installation of [erosion control devices] was predicted to reduce
erosion by about 96 percent.”).
Additionally, the FEIS relied on the use of water bars as a mitigation technique
that would reduce the environmental impacts of the ACP project. See J.A. 1662 (“The
use of water bars (i.e., slope breakers) was assumed on long slopes . . . .”). The Forest
Service had previously stated in its comments on Atlantic’s updated biologic evaluation
that further analysis was needed to determine whether water bars would be effective:
“Slope breaker locations relative to pertinent habitat features need to be disclosed[.] It is
important to be sure that they are not potentially directing water into habitats (in which
case they would actually do more harm than good).” Id. at 2337. Nevertheless, the FEIS
candidly acknowledged that this further analysis was never done:
[W]ater bars create concentrated flows where they discharge adjoining off
right-of-way areas. The [Forest Service] has stated that Atlantic has not
assessed how or whether the adjoining areas can receive concentrated
48
flows, or whether measures would be implemented to allow these areas to
safely receive and convey the concentrated flows. In addition, the slopes to
be encountered in the MNF and GWNF would require several water bars to
be “stacked” along their length, creating multiple points of discharge. The
[Forest Service] has stated the potential impacts of multiple points of
concentrated discharges onto the adjoining areas has not been assessed.
Id. at 1663 (emphasis supplied). Once again, the Forest Service adopted the FEIS
(including its use of water bars as a mitigation technique), issued its ROD, and granted
the SUP based on an erosion and sedimentation analysis using water bars as a mitigation
technique, despite the clear evidence in the record that (1) the Forest Service had
concerns with this technique; (2) the Forest Service’s concerns were not resolved in the
FEIS; and (3) the effectiveness of water bars for this project was never analyzed.
Finally, the record further reflects that the Forest Service believed Atlantic used an
incorrect calculation to analyze how sedimentation from the ACP project would impact
aquatic species. In its draft biologic evaluation, Atlantic analyzed the total sediment that
would erode a stream in a year divided by the volume of water that would flow through
the stream in a year -- to create an average sediment level over an entire year -- rather
than analyzing sediment levels in terms of discrete episodic events, where the sediment
levels vary based on precipitation events that cause larger amounts of erosion to enter the
stream. In other words, Atlantic employed a simplistic (and unrealistic) calculation that
made in-stream sedimentation levels look much lower than they would be during
construction. Of note, the Forest Service sharply criticized this approach in its comments
on the draft biologic report:
This entire paragraph has false rationale and needs to be deleted or
modified extensively. Erosion and sediment transport to streams cannot be
49
averaged evenly over a year, rather it happens in discrete episodic events.
It is not appropriate to minimize impacts by making a comparison of total
load evenly spread over time. The point of the load calculation is to
address impacts to sensitive aquatic species which are impacted by flow
and timing of sediment during these erosion events.
J.A. 2358. However, despite the Forest Service’s concerns with Atlantic’s calculations in
the sedimentation analysis, the record does not indicate that Atlantic ever updated its
calculation to reflect actual conditions. Nevertheless, the Forest Service adopted
Atlantic’s updated biologic report and the FEIS, and it concluded that erosion and
sedimentation from the ACP project would not substantially adversely affect sensitive
aquatic species.
The Forest Service argues -- correctly -- that NEPA does not require a fully
formed mitigation plan to be in place. As this court has noted, “it would be inconsistent
with NEPA’s reliance on procedural mechanisms -- as opposed to substantive, result-
based standards -- to demand the presence of a fully developed plan that will mitigate
environmental harm before an agency can act.” Robertson, 490 U.S. at 353. However, in
this case, the Forest Service adopted the FEIS and issued its draft ROD in reliance on a
mitigation plan that had not been established, and one that, as demonstrated by the Forest
Service’s own concerns, had not been proven effective.
To satisfy NEPA in this case, the Forest Service needed to resolve its own
concerns with the EIS -- which, for the reasons we have explained, it did not do -- and it
needed to have a reasonable basis for concluding that the mitigation plan, once fully
formed, would be effective. Here, the Forest Service relied on the generalities of the BIC
program and other techniques proposed by Atlantic to achieve particular mitigating
50
results, with neither actual site designs nor science-based evidence demonstrating such
results were likely. This is precisely the sort of uninformed agency action that NEPA
prohibits. See Nat’l Audubon Soc’y, 422 F.3d at 184.
Accordingly, we cannot conclude that the Forest Service took a hard look at the
environmental consequences of its decision. Rather, the record before us readily leads to
the conclusion that the Forest Service’s approval of the project “was a preordained
decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this
outcome,” despite that the Forest Service lacked necessary information about the
environmental impacts of the project. Nat’l Audubon Soc’y, 422 F.3d at 183 (concluding
that the U.S. Navy “reverse engineered” its EIS to achieve a particular outcome, and
although “[t]he deficiencies in each area of the Navy’s analysis would not, on their own,
be sufficient to invalidate the EIS,” “a review of the various components of the EIS taken
together indicates that the Navy did not conduct the ‘hard look’ that NEPA requires.”).
Pursuant to NEPA, we conclude the Forest Service acted arbitrarily and
capriciously in adopting the FEIS and granting the SUP. Upon remand, the Forest
Service should explain its decision that receiving only two of the eight site-specific
stabilization designs was “adequate” to determine the environmental effects of the ACP
project, and it should also explain how it took a “hard look” at the erosion, sedimentation,
and water quality issues discussed here considering the Forest Service’s numerous
concerns that were not addressed in the FEIS. If supplemental analysis is needed,
particularly regarding the effectiveness of mitigation strategies relied on in the COM
Plan, the Forest Service should perform that analysis as well.
51
C.
Mineral Leasing Act
1.
The MLA authorizes the “Secretary of the Interior or appropriate agency head” to
grant gas pipeline rights of way across “Federal lands.” 30 U.S.C. § 185(a). As relevant
here, “Federal lands” means “all lands owned by the United States except lands in the
National Park System.” 30 U.S.C. § 185(b)(1) (emphasis supplied). Pursuant to the Park
Service’s Organic Act, land in the National Park System includes “any area of land and
water administered by the Secretary [of the Interior]” through NPS. 54 U.S.C. § 100501.
Congress designated the ANST as a National Scenic Trail administered by the
Secretary of the Interior, who delegated that duty to NPS. See 16 U.S.C. § 1244(a)(1).
Accordingly, the ANST is land in the National Park System. The parties are generally in
agreement about this; after NPS informed FERC that “the entire [ANST] corridor [is]
part of the ANST park unit” and a “unit” of the National Park System, J.A. 1849, 3186,
FERC’s FEIS concluded that NPS is “the lead federal agency for the administration of
the entire ANST” and that the ANST “is a ‘unit’ of the national park system,” J.A. 1794.
The parties also do not dispute that NPS indicated it does not have authority under the
MLA to grant pipeline rights of way across the ANST. However, the parties disagree
about whether the Forest Service has the authority to grant such rights of way across the
ANST. The FEIS concluded:
The ANST is a unit of the National Park system; however, the lands
acquired and administered by the [Forest Service] for the ANST are
[National Forest System] lands and subject exclusively to [Forest Service]
52
regulations and management authority. . . . [A]n authorization from the
NPS is not required for Atlantic’s proposed ANST crossing on [National
Forest System] lands.”
Id. at 1489 (emphasis supplied).
The Forest Service asserts that the MLA authorizes the Forest Service to grant
pipeline rights of way on Forest Service land traversed by the ANST. Specifically, the
Forest Service argues 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 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). Pursuant to this reading of the National Trails System Act, the Forest
Service asserts, the MLA authorizes the Forest Service to grant pipeline rights of way on
portions of the ANST traversing lands administered by the Forest Service.
The Forest Service largely relies on the following language from the National
Trails System Act to support this argument:
The Secretary of the Interior or the Secretary of Agriculture as the case
may be, may grant easements and rights-of-way upon, over, under, across,
or along any component of the national trails system in accordance with the
laws applicable to the national park system and the national forest system,
respectively: Provided, That any conditions contained in such easements
and rights-of-way shall be related to the policy and purposes of this chapter.
16 U.S.C. § 1248(a) (emphasis supplied). The MLA, the Forest Service asserts, prevents
NPS from authorizing pipeline rights of way across components of the ANST on
National Park System lands, but it does not prevent the Forest System from authorizing
pipeline rights of way across components of the ANST on National Forest System lands.
53
In any event, the Forest Service concedes that its position on this issue is entitled to no
judicial deference. See Resp’t’s Surreply Br. 12–13.
The problem with the Forest Service’s argument is it misreads both the MLA and
the National Trails System Act. The MLA specifically excludes lands in the National
Park System from the authority of the Secretary of the Interior “or appropriate agency
head” to grant pipeline rights of way. See 30 U.S.C. §§ 185(a), 185(b)(1). In other
words, the MLA concerns the land, not the agency. The FEIS concluded, and the parties
agree, that the ANST is a unit of the National Park System. Accordingly, even if the
Forest Service were the “appropriate agency head” in this instance, it could not grant a
pipeline right of way across the ANST pursuant to the MLA. Interpreting the MLA as
the Forest Service argues would give the Forest Service more authority than NPS on
National Park System land. This defies logic.
Further, the Forest Service is not the “appropriate agency head” for the ANST.
The Forest Service’s arguments notwithstanding, the National Trails System Act does not
distinguish between various levels of administration of the ANST (“overall” versus by
“jurisdiction”); rather, as NPS explained to FERC, the Act is clear that the Secretary of
the Interior administers the entire ANST, while “other affected State and Federal
agencies,” like the Forest Service, manage trail components under their jurisdiction. See
16 U.S.C. §§ 144(a), 1246(a). Indeed, 16 U.S.C. § 1246(a) clearly distinguishes between
trail administration and management:
The Secretary charged with the overall administration of a trail pursuant to
section 1244(a) of this title shall, in administering and managing the trail,
consult with the heads of all other affected State and Federal agencies.
54
Nothing contained in this chapter shall be deemed to transfer among
Federal agencies any management responsibilities established under any
other law for federally administered lands which are components of the
National Trails System.
§ 1246(a)(1)(A) (emphasis supplied).
Section 1248(a) of the Act does not transfer administration responsibilities of the
ANST to the Forest Service simply because the Forest Service manages land underlying
components of the ANST. Although it is true that § 1248(a) does permit the Secretary
charged with overall administration of a national trail -- “[t]he Secretary of the Interior or
the Secretary of Agriculture as the case may be” -- to grant easements and rights of way
in accordance with the laws applicable to either the National Park System or the National
Forest System, in this case, the applicable administrator is the Secretary of the Interior,
not the Secretary of Agriculture, and the applicable laws are those of the National Park
System. See 16 U.S.C. § 1244(a)(1) (“The Appalachian Trail shall be administered
primarily as a footpath by the Secretary of the Interior, in consultation with the Secretary
of Agriculture.”). Other national trails are administered by the Secretary of Agriculture
and are subject to laws applicable to the National Forest System -- the ANST is simply
not one of those trails. See, e.g., § 1244(a)(2), (5), (13), (14), (27), (30) (charging the
Secretary of Agriculture with overall administration of the Pacific Crest Trail, the
Continental Divide National Scenic Trail, the Florida National Scenic Trail, the Nez
Perce National Historic Trail, the Arizona National Scenic Trail, and the Pacific
Northwest National Scenic Trail).
55
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 Forest Service’s ROD and SUP granting this right of way are,
accordingly, vacated.
2.
The Forest Service also argues that Petitioners have no standing to bring this
challenge because they allege no harm traceable to the right of way grant. For the
reasons this court explained in Sierra Club v. U.S. Department of the Interior, this
standing argument fails. See 899 F.3d 260, 282–85 (4th Cir. 2018). Petitioners’ alleged
injuries are fairly traceable to the Forest Service because “without [the Forest Service’s]
grant of a right of way, the pipeline could not have been authorized in its currently
proposed form. It therefore cannot be said that Petitioners’ injuries are ‘the result of the
independent action of some third party not before the court.’” Id. at 284 (quoting Bennett
v. Spear, 520 U.S. 154, 168–69 (1997)).
Furthermore, the Forest Service asserts that Petitioners waived their argument that
the Forest Service lacks statutory authority to grant rights of way across the ANST
because Petitioners failed to adequately raise that argument before the Forest Service. In
comments on the draft ROD, Petitioners objected to the agency’s failure to consider non-
national forest routes for the pipeline and the viability of Atlantic’s proposed method for
crossing the ANST. Petitioners did not challenge the Forest Service’s authority to issue
the right of way in the first instance.
56
Those challenging agency actions, such as Petitioners here, are generally required
to raise their arguments to the agency during the administrative review process and to
exhaust their administrative remedies before this Court may consider their arguments.
See 7 U.S.C. § 6912(e). Nonetheless, the draft ROD -- to which the Forest Service
claims that Petitioners should have lodged their MLA objection -- nowhere mentions that
the Forest Service was contemplating granting right of way through lands administered
by NPS, or the ANST, in particular. To the contrary, the draft ROD characterizes the
decision to be made as “[W]hether to authorize the use and occupancy of NFS lands for
[Atlantic] to construct, operate, maintain, and eventually decommission a natural gas
pipeline that crosses NFS lands administered by the MNF and GWNF.” J.A. 1378
(emphasis added).
Because (1) the draft ROD purported to be considering granting right of way
through only Forest Service “lands administered by the MNF and GWNF” and (2) the
FEIS, upon which the draft ROD relied, stated that NPS “administered” the entire ANST
and that the entire ANST is a “unit” of the National Park System, there was no reason for
Petitioners, or any other public commenter, to believe that the ROD or the SUP would
grant right of way across the ANST. To be sure, Petitioners may have been on notice
from the FEIS that the pipeline would require a right of way across the ANST from some
agency at some point, but Petitioners had no way to know that such right of way would
be granted by the Forest Service through the ROD. Indeed, the plain language of the
SUP authorizes Atlantic “to use or occupy” only “National Forest System lands in the
[MNF] and the [GWNF] of the National Forest System.” Put simply, the Forest Service
57
never notified the public that it intended to grant Atlantic right of way through a unit of
the National Park System like the ANST.
Furthermore, and significantly, the draft ROD nowhere mentions that the Forest
Service intended to rely on the MLA as the basis of its authority to grant the right of way
across the ANST. Indeed, regarding the MLA, the FEIS stated only that separate,
congressional approval would be required if NPS were the agency issuing the right of
way. See, e.g., Bowen v. City of New York, 476 U.S. 467, 482–87 (1986) (refusing to
enforce exhaustion requirement when plaintiffs could not have been expected to
administratively “attack a policy they could not be aware existed” (internal quotation
marks omitted)); Beth V. v. Carroll, 87 F.3d 80, 83 (3d Cir. 1996) (excepting plaintiff
from statutory exhaustion requirement when he “was given no prior notice or opportunity
to object” and requiring exhaustion would be “futile”).
Moreover, the question of whether the MLA authorized the Forest Service to issue
the SUP is a purely legal question that this Court may answer without the benefit of the
Forest Service’s expertise. Our sister courts have recognized an exception to the
administrative exhaustion requirement for such legal issues. See Bartlett v. U.S. Dep’t of
Agric., 716 F.3d 464, 474 (8th Cir. 2013); Vt. Dep’t of Pub. Serv. v. United States, 684
F.3d 149, 159–60 (D.C. Cir. 2012); Beth V., 87 F.3d at 88. Under the legal question
exception, a party’s failure to exhaust administrative remedies is excused if the issues
“are legal questions which are not suitable for administrative resolution and are more
properly resolved by the courts.” Bartlett, 716 F.3d at 474 (citation omitted). This
exception is narrow. See id.; 7 West’s Fed. Admin. Prac. § 8226 (2018) (“[C]ourts have
58
plenary power over questions of law, but usually legal questions must first be presented
to the agency.”). Nonetheless, when the agency has no expertise in the issue, and no
factual disputes must be resolved, the question may be ripe for judicial review
notwithstanding a party’s failure to exhaust its administrative remedies. See Ace Prop.
and Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 1001 (8th Cir. 2006); see also
EEOC v. Seafarers Int’l Union, 394 F.3d 197, 201 (4th Cir. 2005) (discussing exhaustion
exception for legal issues and stating that “courts have limited it to issues that are
quintessentially legal and fail to implicate the agency’s expertise in any meaningful
manner” (citation omitted)).
The issue of whether the Forest Service had authority under the MLA to issue a
right of way across the ANST is a question of statutory interpretation. Such a question is
the peculiar province of the courts. Indeed, “[t]he judiciary is the final authority on
issues of statutory construction . . . .” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 843 n.9 (1984). And the Forest Service has pointed to no factual
disputes that must otherwise be resolved before the Court may determine the scope of the
agency’s authority under the MLA.
Accordingly, because (1) Petitioners were not put on notice that the right of way
across the ANST would be granted by the Forest Service through the ROD; (2) the Forest
Service gave no hint of the legal authority that it would claim in issuing the SUP during
the administrative review process; and (3) the Forest Service’s authority to issue rights of
way pursuant to the MLA is a purely legal question, we decline to find that Petitioners
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were required to exhaust their administrative remedies in connection with their MLA
argument.
IV.
We trust the United States Forest Service to “speak for the trees, for the trees have
no tongues.” Dr. Seuss, The Lorax (1971). 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.
PETITION FOR REVIEW GRANTED,
VACATED AND REMANDED
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