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Cowpasture River Preservation Association v. Forest Service

United States Court of Appeals, Fourth Circuit

December 13, 2018

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.

          Argued: September 28, 2018

          On Petition for Review of a Decision of the United States Forest Service.

         ARGUED:

          Austin D. Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, Asheville, North Carolina, for Petitioners.

          Avi Kupfer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

          Brooks Meredith Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.

         ON BRIEF:

          Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert, Jonathan Gendzier, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Petitioners Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, and The Virginia Wilderness Committee.

          Nathan Matthews, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Oakland, California, for Petitioners Sierra Club and Wild Virginia, Inc. Eric Grant, Deputy Assistant Attorney General, Andrew C. Mergen, J. David Gunter II, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Stephen A. Vaden, Principal Deputy General Counsel, Washington, D.C., Jay McWhirter, Sarah Kathmann, Office of the General Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE, Atlanta, Georgia, for Respondents.

          Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.

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

          THACKER, CIRCUIT JUDGE.

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

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

         I.

         A.

         Background

         The ACP is a proposed 604.5 mile, 42-inch diameter natural gas pipeline that would stretch from West Virginia to North Carolina. The ACP route approved by the Federal Energy Regulatory Commission ("FERC") -- and for which the Forest Service issued the SUP, ROD, and right of way challenged in this case -- crosses 21 miles of national forest land (about 16 miles in the GWNF and five miles in the MNF) and crosses the ANST in the GWNF. Construction would involve clearing trees and other vegetation from a 125-foot right of way (reduced to 75 feet in wetlands) through the national forests, digging a trench to bury the pipeline, and blasting and flattening ridgelines in mountainous terrains. Following construction, the project requires maintaining a 50-foot right of way (reduced to 30 feet in wetlands) through the GWNF and MNF for the life of the pipeline.

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

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

         B. Review and Comment

         As FERC prepared the EIS, the Forest Service reviewed and commented on draft environmental resource reports, construction designs, biologic evaluations, and the first draft of Atlantic's Construction, Operation, and Maintenance ("COM") Plan filed with FERC. Additionally, in a letter to Atlantic dated October 24, 2016, the Forest Service requested ten site-specific stabilization designs for selected areas of challenging terrain to demonstrate the effectiveness of Atlantic's proposed steep slope stability program, which Atlantic called the "Best in Class" ("BIC") Steep Slopes Program. As the Forest Service explained:

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

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

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

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

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

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

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

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

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

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

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 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 ...


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