Category Archives: Forest Service

Fourth Circuit Court Throws out ACP’s Forest Service Permit


On December 13, 2018, the Fourth Circuit Court of Appeals vacated a federal approval for the Atlantic Coast Pipeline to cross the Monongahela National Forest, George Washington National Forest, and Appalachian Trail.

The case was argued before the Court on September 28, 2018, with the Southern Environmental Law Canter and Appalachian Mountain Advocates representing the plaintiffs.

The Court found that the Forest Service “abdicated its responsibility to preserve national forest resources,” and noted the agency’s “serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.” The opinion says the Forest Service violated the National Environmental Policy Act, National Forest Management Act, and did not have authority under the Mineral Leasing Act to grant a right-of-way across the Appalachian Trail.

Read the Court’s opinion here.

See news coverage from Virginia Mercury here.

See news coverage from the Richmond Times-Dispatch here.

Be aware: The Richmond Times-Dispatch points out that, “Dominion’s allies in Congress reportedly are considering an amendment to a pending appropriations bill for the Department of Interior that would permit the crossing of the Appalachian Trail and Blue Ridge Parkway near Reed’s Gap.”  Additional information hereContact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction.

Congressional Act to Allow Pipelines to Cross Appalachian Trail and Blue Ridge Parkway?


Say “NO!”

On December 3, 2018, KPVI6 reported that “Legislation is pending in Congress that would give the National Park Service clear authority to allow construction of the Atlantic Coast Pipeline beneath the Appalachian Trail and Blue Ridge Parkway, both potentially critical obstacles under litigation pending in the 4th U.S. Circuit Court of Appeals. Dominion Energy, lead partner in the $7 billion project, confirmed the legislative proposal, which first surfaced in a blog post from an Alabama group that suggested aid for the 600-mile natural gas pipeline is ‘tucked into the omnibus spending bill’ being negotiated by Sen. Richard Shelby, R-Ala., chairman of the Senate Appropriations Committee.”

Dominion’s Aaron Ruby emailed the Richmond Times-Dispatch, saying that, “Congress is considering a legislative amendment that would explicitly authorize the park service to grant a permit for such a crossing.”

The Park Service has twice issued permits for the ACP to cross the Parkway. After the first permit was issued, the 4th Circuit Court of Appeals vacated it in early August as an “arbitrary and capricious” exercise of the agency’s powers. At the same time, the Court also issued a stay of the permit the Forest Service issued for the ACP to cross the Appalachian Trail. After the two agencies [minimally] revised their permits, FERC lifted the stay order, but appeals against the reissued permits are pending, and legal briefs to the Court are due at the end of this week.

In vacating the Park Service permit in early August, Judge Gregory did not rule decisively on whether the Park Service has authority to issue the permit under the Blue Ridge Parkway Organic Act, but he said it had failed to show how the project is consistent with the purposes of the parkway and National Park System. For example, the Park Service had conducted a visibility study and found that because the crossing at Reeds Gap near the Wintergreen entrance would be very visible, it would “thus significantly decreasing the park’s scenic value.”

In trying to get Congress to pass a bill (buried in the omnibus spending bill where they surely hoped no one would notice it) giving the Park Service authority to allow construction, Dominion is clearly trying to make an end run around pending Court rulings that might not be in their favor. Austin “DJ” Gerken, an attorney for the Southern Environmental Law Center, commented, “It’s disappointing but not surprising that Dominion would try to bend the law to its will. It’s already tried to bend the agencies to its will.” And he added, “The fact that Dominion is trying to work around [the law] before it even knows what the court has ruled is really shocking and bold.”

Take action! Contact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction. Contact Senator Shelby and other members of the Senate Appropriations Committee. Senator Kaine’s office says he does not support the measure, so thank Senator Kaine for protecting the land held in common for all of us to enjoy.

Report on Sept. 28 Arguments Before 4th Circuit Court

Thanks to Lew Freeman of Allegheny-Blue Ridge Alliance for this report on the arguments in the Fourth Circuit Court of Appeals in September 28, 2018:

Yesterday, September 28, a three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP). The first case challenged the December 13 [2017] decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act). The second case challenged the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests. The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the briefs filed in each case appeared in the September 21 [2018] ABRA Update (see https://www.abralliance.org/2018/09/21/court-to-hear-challenges-to-acp-forest-service-water-quality-permits/?highlight=court%20to%20hear%20challenges).

I attended Friday’s arguments. The lawyers representing our interests – Ben Luckett of Appalmad in the 401 case; D.J. Gerkin of SELC in the Forest Service case – were most effective. More about the oral arguments will appear in next week’s ABRA Update. For now, though, I want to highlight a particularly significant moment during the arguments presented in the Forest Service case. In the course of the argument presented by the U.S. Justice Department attorney representing the U.S. Forest Service, Chief Judge Roger Gregory, who was presiding over the panel, interrupted the attorney and noted that the U.S. Forest Service had been diligently asking Dominion Energy for more complete information on how the company would and could build the ACP through the steep forest lands in West Virginia and Virginia without causing environmental damage. The judge then observed that the Forest Service seemed to have suddenly changed its mind and proceeded to approve the requested Special Use Permit. Judge Gregory inquired of the attorney what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting Judge Gregory to thunder: “Who’s running the train?” It was a riveting moment and one that also caught the attention of Michael Martz of the Richmond Times Dispatch [Martz’s article appears in both the Daily Progress and the Times Dispatch].

A recording of Friday’s oral arguments will be available on the Court’s website on Monday [October 1, 2018] at https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.  The case numbers you will need to access the recordings are: 401 case – 18-1077; Forest Service case: 18-1144.


The Chesapeake Bay Foundation issued the following statement about the oral arguments challenging the ACP’s water quality certification:

“This year Virginians have seen firsthand the terrible damage that pipeline construction can do to communities and waterways. The Atlantic Coast Pipeline would cross Virginia waterways nearly 1,000 times from the mountains to the Chesapeake Bay, threatening them with erosion, mudslides, and polluted runoff. All of the evidence shows that the regulations in place cannot provide reasonable assurance that water quality will be protected from pipeline construction and operation. We are pleased that the federal appeals court is looking closely at this question.”

4th Circuit Issues Stay of Forest Service Permit for the ACP

Late on September 24, 2018, the Fourth Circuit for the U.S. Court of Appeals issued a stay in the case challenging the Special Use Permit (SPU) that had been issued by the U.S. Forest Service for the Atlantic Coast Pipeline. The case is scheduled to be argued before the Fourth Circuit this coming Friday, September 28. This means that the SPU allowing the project to cross national forest land is stayed pending the appeal. Imminently, the Federal Energy Regulatory Commission will be asked to issue a stop work order in light of today’s decision.

The plaintiff’s in the case, represented jointly by the Southern Environmental Law Center and Appalachian Mountain Advocates, are Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

Regulators Change the Rules to Ease Pipeline Approval

“A review by the Charleston Gazette-Mail, in collaboration with ProPublica, shows that, over the past two years, federal and state agencies tasked with enforcing the nation’s environmental laws have moved repeatedly to clear roadblocks and expedite the pipeline, even changing the rules at times to ease the project’s approvals.” What Happens When a Pipeline Runs Afoul of Government Rules? Authorities Change the Rules, discusses the many ways authorities have changed or ignored rules, citing numerous examples related to the Mountain Valley and Atlantic Coast Pipelines.

For the MVP:

  • “The court had found that the U.S. Forest Service had suddenly dropped — without any explanation — its longstanding concerns that soil erosion from the pipeline would harm rivers, streams and aquatic life. It also found that the Bureau of Land Management approved a new construction path through the Jefferson National Forest, ignoring rules that favor sticking to existing utility rights-of-way.”
  • “After citizen groups brought a lawsuit challenging how West Virginia regulators concluded that the pipeline would not violate state water quality standards, the state Department of Environmental Protection dropped its review and instead waived its authority to decide if the project complied with its rules. This effectively ended the legal challenge and paved the way for construction to begin.”
  • “Confronted with a similar lawsuit filed by the same citizen groups, the state and the U.S. Army Corps of Engineers moved to rewrite their rules for how long pipeline construction could block the flow of rivers. Environmentalists fear that, under the plan approved by the Corps, four West Virginia rivers could be left dry for long periods of time, potentially harming aquatic life during construction.”
  • “Developers persuaded judges to speed court proceedings and grant them access to private property along the route to cut down trees, saying they needed to do so before protected bats came out of hibernation. But then, despite guidelines saying no logging could take place after March 31, the Federal Energy Regulatory Commission twice extended the company’s deadline.”
  • “Since April, state water quality inspectors have issued citations along the pipeline route in West Virginia: sediment-laden water leaving the construction site; missing or improperly installed runoff controls; failure to add more pollution protections when existing ones were shown to be inadequate. So far, the MVP has not paid any fines for those violations.”
  • “In early July, the Corps of Engineers rewrote its approval of the pipeline to essentially waive the 72-hour time limit on the river crossing construction. In a court filing, Corps lawyers defended the move, saying the alternative of digging a trench for the pipeline without diverting water flow would cause more environmental damage. And just this Wednesday, the DEP released a proposal to exempt the stream-crossing method Mountain Valley Pipeline proposed from the 72-hour limit.”
  • “The federal agency also has approved other requests by the MVP developers that residents along the route say affect their quality of life in more straightforward ways. In recent weeks, residents fought a request for FERC to extend the construction day until as late as 9 p.m. Letters poured in from residents, organizations and county governments, urging FERC to turn it down. …. FERC approved the request over the residents’ objections.”

The ACP construction process is not as far along as that of the MVP, but the article notes the start of the same disturbing trend of agencies ignoring their own rules and mandates. In issuing the August 10, 2018, stop work order for the ACP, “Chief Judge Roger Gregory wrote that the U.S. Fish and Wildlife Service approved the project without setting any real limits on damage to endangered species, and the National Park Service granted permission for pipeline developers to drill under the Blue Ridge Parkway without determining if doing so was consistent with the road’s protection as a unit of the Park Service.”

Read the full article here.

New Protest Site Blocks MVP Access Road in Jefferson National Forest

A May 21, 2018, notice from Appalachians Against Pipelines:

Early on May 21, 2018, pipeline protesters in the Jefferson National Forest erected a new aerial blockade on Pocahontas Road near Narrows, VA. The blockade consists of a protester on a platform 30 feet in the air, suspended from a horizontal rope tied to surrounding trees. Banners at the site read “WHICH SIDE ARE YOU ON?” and “STILL HERE.” Pocahontas Road is a Forest Service road and Mountain Valley Pipeline (MVP) access road that leads to the construction site for MVP’s intended boring through Peter’s Mountain, under the Appalachian National Scenic Trail. The presence of this roadblock prevents MVP’s continued construction of the access road and boring site, which has already been significantly delayed for well over 50 days by the presence of protester Nutty in an aerial blockade on the same road less than 3 miles away.

“I am taking a stand on Peters Mountain to prevent the further devastation of these lands by the Mountain Valley Pipeline,” said Fern MacDougal, the protester suspended in the new blockade. “Cutting through delicate karst topography and 300 miles of contiguous forest and family farms seized by eminent domain, MVP threatens to damage the health and wellbeing of poor and oppressed communities along the pipeline route by threatening the air, soil, and water. This pipeline will catalyze the growth and expansion of gas extraction across Appalachia, an industry which has already caused permanent harm to many communities. We are dedicated to resisting this reckless endangerment of the land and people as long as MVP continues to operate.” MacDougal further stated that she was inspired to take this action by monopod sitter Nutty and by David Buckel, an LGBTQ rights lawyer who died in April after setting himself on fire as a protest against the use of fossil fuels.

Mountain Valley Pipeline, LLC has faced significant resistance to its plans for this 42-inch diameter fracked gas pipeline since 2014. In the past few months, numerous sites of direct action have sprung up, severely interfering with pipeline construction. A total of nine aerial blockades have now been launched by various groups and individuals across the pipeline route, including a tree sit near the ridge on Peters Mountain and a monopod blockade on Pocahontas Road, which have been occupied since February 26 and March 28, respectively.

Korine Kolivras, a resident of neighboring Montgomery County, VA who has been active in the pipeline resistance, explained her support for the new blockade: “We need clean drinking water. We need to live without fear of a massive explosion. We do not need another pipeline. We do not need to hand over our lands just so the pockets of executives can fill even further. This pipeline is not a public good; it benefits only corporate interests. I support continued actions to stop this unnecessary pipeline that would ruin our beautiful forests and communities. We the people are speaking.”

Since the launch of the first tree sit in the Jefferson National Forest — and in fact, since the initial proposal of the Mountain Valley Pipeline — Jefferson National Forest Supervisor Joby Timm has made it clear the he and the US Forest Service (USFS) value the interests of a private pipeline company over that of the people and ecosystems it will devastate. From amending the Forest Plan to approve the pipeline, to issuing numerous “emergency” forest and road closures, to arresting multiple supporters on the ground while preventing resupplies to the sitters, the USFS has made its stance clear. MVP continues to claim that it is on schedule for construction, although it remains to be seen how the company intends to meet its planned in-service date of late 2018, as the flames of resistance continue to spread.