Category Archives: Forest Service

Forest Service Joins Dominion to Challenge 4th Circuit Decision

ABRA Update 217 from Allegheny-Blue Ridge Alliance reports that on February 11, 2019, the US Forest Service (NFS) filed a petition for review of the Fourth Circuit Court of Appeals decision in December vacating the NFS permit for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. Atlantic Coast Pipeline, LLC (ACP, LLC) had previously filed a challenge to the decision, on January 28. The NFS petition states:

. . . the Forest Service seeks rehearing of the panel’s holding that National Forest System land traversed by the Appalachian National Scenic Trail “is land in the National Park System.” Slip op. 52. That holding presents “a question of exceptional importance,” Fed. R. App. P. 35(a)(2), because it may preclude the construction of infrastructure for any pipeline across all federal lands traversed by the 2100-mile Appalachian Trail in states within the jurisdiction of this Court, and because it contradicts the plain language of the National Trails System Act and the agencies’ consistent practice over eighty years of Appalachian Trail management. The panel’s holding also calls into question the validity of dozens of Forest Service permits for electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas.

Reaching this issue was unnecessary to the judgment. The Forest Service seeks rehearing to preclude the above-described holding from having precedential effect— with disruptive consequences for the many operations of the Forest Service and the Park Service in this Circuit.

The NFS petition, like the previously one filed by ACP, LLC, requests that all fifteen members of the Fourth Circuit hear the appeal. At this writing, the Court has not yet acted on either petition.

Call or Write Your Senators!

The Richmond Times-Dispatch reported on December 3, 2018, 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…. 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.”

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

Having been thwarted by the court in efforts to bend the National Forest and the National Parks Services to its will, Dominion is trying circumvent the court ruling by sneaking a last-minute amendment into a pending appropriations bill for the Department of Interior that would permit the Atlantic Coast Pipeline to cross the Appalachian Trail and Blue Ridge Parkway near Wintergreen and Reed’s Gap.

Although we understand that (at this moment) the amendment has been pulled, we should assume that Dominion is pulling out all the stops to get something from Congress to sidestep the court’s ruling.

Write or call (or better yet, do both!) your Senators and tell them that you are upset about any possible legislative “slight of hand,” that you oppose any last minute amendments to the budget reconciliation bill, especially one that would allow gas pipelines to cross our national forests and the Appalachian Trail, and that you oppose Dominion’s efforts to make an end run around the clear and carefully considered ruling of the Fourth Circuit Court.

Tim Kaine
https://www.kaine.senate.gov/contact/share-your-opinion
Phone: 202-224-4024

Mark Warner
https://www.warner.senate.gov/public/index.cfm?p=ContactPage
Phone: 202-224-2023

SELC Asks FERC to Revoke ACP’s Certificate

Allegheny-Blue Ridge Alliance reports that in a filing late December 13, 2018, the Southern Environmental Law Center (SELC) asked the Federal Energy Regulatory Commission (FERC) to revoke the certificate for the Atlantic Coast Pipeline in light of the decision earlier in the day by the Fourth Circuit Court of Appeals to vacate the U.S. Forest Service’s approval for the pipeline to cross national forest lands and the Appalachian National Scenic Trail. In its 65-page letter to FERC, SELC stated:

Crucially, the court held that the Forest Service does not have statutory authority to authorize the pipeline to cross the Appalachian Trail. As a result, under federal law, Atlantic Coast Pipeline, LLC (“Atlantic”) cannot obtain authorization from federal agencies to cross the Trail as proposed. Thus, the Commission’s Certificate approves a project that cannot be constructed in compliance with federal law. Further, the proposed Appalachian Trail crossing is a linchpin in the Commission’s alternatives analysis—almost every alternative considered in the Final EIS includes this crossing point. See ACP Final EIS at 3-18 to 3-19. In light of the court’s decision, that analysis is not valid and cannot be used to approve a re-route of the project at this stage. The Commission must therefore revoke the Certificate of Public Convenience and Necessity. Further, the Commission must issue a formal stop-work order, effective immediately, halting all construction activities because the court’s decision means that Atlantic continues to be out of compliance with a mandatory condition of its Certificate of Public Convenience and Necessity.

 

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 Washington Post 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.”