Category Archives: Forest Service

SELC Files Opposition Brief

The Southern Environmental Law Center filed an opposition brief in the US Supreme Court on August 28, 2019, arguing that the Court should not agree to review the Fourth Circuit opinion as requested by the petitioners, US Forest Service and Atlantic Coast Pipeline. The Fourth Circuit decision blocked the ACP from coming across Reid’s Gap.

The question is “Whether the United States Forest Service has statutory authority under the Mineral Leasing Act to grant a gas pipeline right-of-way across the Appalachian National Scenic Trail.”

The brief discusses the Mineral Leasing Act, and argues that:

  • This case is not a suitable vehicle to address the question presented because petitioners seek review of just one of the Fourth Circuit’s four independent bases for its judgment, and the decision does not conflict with other Circuits
  • The question presented does not warrant review because it does not present an issue of national importance, since the ACP and other pipelines can still cross the Appalachian Trail, and other Forest Service authorities and rights of way are unaffected
  • The Fourth Circuit’s decision is correct and supported by the record, namely that the entire Appalachian Trail is a unit of the National Park System, the Mineral Leasing Act excludes all federal land in the National Park System owned by any federal agency, the ACP argument that the Appalachian Trail is merely a “Footpath” or “Right-of-Way” has no legal basis, and the Park Service administers the entire Appalachian Trail

Read the full brief here.

Forest Service Extends Comment Period


The U.S. Forest Service has announced that it will extend the comment period to receive input from the public on the agency’s proposed rule to amend environmental review procedures of projects on Forest Service lands. The new comment deadline is Monday August 26, 2019. The previous comment deadline had been Monday, August 12.

The proposed rule change would effectively eliminate for most projects the opportunity for public input.  The Forest Service is presenting the new rules as “simplifying” their processes, but what it really means is that the Forest Service could do what it wants when it wants, without public oversight or input.

Additional background is in our August 8 post, Urgent Appeal from the Outdoor Alliance.

Please use the Outdoor Alliance Web page and call to action at ourforestsourvoice.org to submit your comments and let your voice be heard!

Urgent Appeal from the Outdoor Alliance


The U.S. Forest Service is proposing to eliminate virtually all public comment on how they manage OUR national forests. This could serve as precedent for other federal agencies and effectively gut the National Environmental Policy Act. We have until August 12 to tell them this is not acceptable. Please go to the Outdoor Alliance’s urgent call to action at ourforestsourvoice.org and let your voice be heard.

Writing in a New York Times opinion piece on August 7, 2019, Sam Evans of the Southern Environmental Law Center says, “The United States Forest Service’s most important job is balancing the many needs and uses of the 193 million acres of public land it manages. But the Trump administration is preparing to abandon the process that makes it possible, eliminating public participation from the overwhelming majority of decisions affecting our national forests. If the Forest Service has its way, visitors won’t know what’s coming until logging trucks show up at their favorite trailheads or a path for a gas pipeline is cleared below a scenic vista. …. Far too often, the Forest Service proposes logging in rare old-growth forests, near sensitive streams, or on steep, fragile slopes. Or it proposes building new roads or permitting pipelines in undeveloped backcountry areas. Under current law, new roads and all but the smallest and least consequential timber sales require, at a minimum, advance public notice and the opportunity for the public to comment and suggest improvements. Most of the time, bad projects are relocated or improved because of public input.”

If this proposal goes through, new clear-cutting and logging projects up to 6.6 square miles in size, pipelines, and massive road-building projects could proceed in the dark – without the input of neighboring landowners, without expert scientific input, and without the input of people who love to hike, fish, hunt, ride horses, paddle and bike throughout the entire 193 million acres of national forests.

Say NO today!

Crucial Legal Decisions Expected in Coming Months

This excellent Status of Principal Court Challenges to Permits and Certifications for the Atlantic Coast Pipeline was prepared by the Allegheny-Blue Ridge Alliance and posted in the ABRA Update #236 for July 12, 2019.

Construction activity on the Atlantic Coast Pipeline was suspended several months ago as the result of a stay from the Fourth Circuit Court of Appeals regarding a successful challenge to the endangered species biological opinion that had been issued by the U.S. Fish and Wildlife Service. But, a decision on that important case, as well as decisions regarding some other cases challenging permits for the ACP are expected over the next 3-4 months. Here is a rundown of the status of the key court cases that have been brought by various ABRA member organizations.

1. FERC Certificate – A challenge to the Federal Energy Commission’s (FERC) issuance of a certificate for the ACP on October 13, 2017 was filed with the Fourth Circuit Court of Appeals on August 16, 2018. The plaintiffs are 14 conservation groups, represented by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates. The suit could not be filed until FERC formally rejected a request for a rehearing of the certificate, which did not occur until August 10. One basis of the suit is the petitioners’ contention that FERC did not look behind the affiliate agreements that Dominion Energy and Duke Energy, (principal partners in the project) claim demonstrate that the pipeline is needed in Virginia and North Carolina markets. The petitioners argue that FERC’s Environmental Justice Impact Statement is fatally flawed. Jurisdiction of the case has been transferred to the D.C. Circuit Court of Appeals. Oral arguments are expected to occur in the fall of 2019.

2. Forest Service Permit – On January 23, 2018, the U.S. Forest Service granted the ACP a Special Use Permit to cross national forest lands and a right-of-way to cross beneath the Appalachian National Scenic Trail (ANST). This action followed a November 17, 2017 decision by the Forest Service to amend the Forest Plans for the George Washington and Monongahela National Forests to accommodate the ACP. A suit was filed on February 5, 2018 by seven conservation/environmental organizations (most members of ABRA) represented by SELC, arguing that the Forest Service had rushed to judgment to approve the project, notwithstanding raising serious questions about the project’s ability to be built over steep mountain terrain without serious environmental damage. The case was argued before a three-judge panel on September 28, 2018. On December 13, the Fourth Circuit ruled to vacate the Forest Service permit, expressing agreement with the petitioners about environmental threats being improperly evaluated and the Forest Service’s failure to asses off-forest alternatives, and in addition ruled that the Forest Service lacked the authority to grant the project permission to cross the ANST.

Atlantic Coast Pipeline, LLC (ACP, LLC) on January 28 filed with the Fourth Circuit requesting a rehearing en banc, meaning a hearing on the case before all fifteen judges of the Fourth Circuit. The Fourth Circuit rejected the ACP, LLC petition for rehearing and an appeal to the U.S. Supreme Court was filed June 25. The Supreme Court is expected to decide in October whether to take the case.

3. Fish and Wildlife Service – The U.S. Fish and Wildlife Service’s (FWS) biological opinion on threats to endangered species by the ACP was vacated by the Fourth Circuit Court of Appeals on May 5, 2018, but an opinion from the Court explaining its order was not issued until August 6. A new biological opinion was issued by the FWS that sought to meet the court’s objections. That re-issued opinion was also been challenged by the petitioners, (Defenders of Wildlife, Sierra Club and the Virginia Wilderness Committee) represented by SELC. That challenge was argued before the Fourth Circuit on May 9, 2019. A decision is expected later in the summer. The re-issued biological opinion is currently stayed pending a ruling by the court.

4. National Park Service Permit – The National Park Service’s (NPS) December 2017 approval for the ACP to cross underneath the Blue Ridge Parkway was challenged in the Fourth Circuit by Sierra Club and the Virginia Wilderness Committee, represented by SELC. The Court vacated the permit on August 6, and FERC issued a stop-work order for the entire project on August 10. The stop-work order was lifted September 17, just five weeks later, when the NPS issued a new permit that purported to remedy the deficiencies in the earlier permit. That permit was challenged again by the petitioners in the Fourth Circuit.

Before the case was argued, the Park Service asked the Court to vacate the previously issued permit for the ACP to cross the Blue Ridge Parkway so the agency could “consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the Parkway is appropriate.” The Fourth Circuit granted that motion on January 23. Thus, at this writing, there is no permit for the ACP to cross the Blue Ridge Parkway.

5. Army Corps of Engineers – The U.S. Army Corps of Engineers filed a motion on January 18 with the Fourth Circuit Court of Appeals for a remand and vacating of the permit that the Huntington District of the Corps had issued for the Atlantic Coast Pipeline (ACP) to cross rivers and streams in West Virginia. The Court had previously issued a stay of the Nationwide 12 (NWP12) permit issued for the ACP by the Huntington District, as well as other NWP12 permits issued for the project by Corps districts in Pittsburgh, Norfolk and Wilmington that have jurisdiction over other portions of the ACP project. The motion was unopposed and subsequently granted by the Court. While the action only directly affects the portion of the ACP subject to the Huntington District’s jurisdiction (West Virginia portions of the route), the stays on stream and river crossings for the ACP in the other Corps districts remain in effect.

6. Buckingham County Compressor Station Air Permit – The Virginia Air Pollution Control Board voted on January 8, 2019 to grant an air permit for the proposed ACP compressor station in Buckingham County, VA. The vote had been delayed several times and was particularly contentious because of concerns over air emissions that would affect the immediate area, as well as the Chesapeake Bay to the east, but also be because it would be built proximate to an historic African American community, raising the issue of environmental justice. The Southern Environmental Law Center (SELC), on behalf of Friends of Buckingham, challenged on February 8 the Virginia Air Pollution Control Board’s decision to approve Dominion’s Atlantic Coast Pipeline Buckingham County compressor station. Joining SELC in the lawsuit, filed with the Fourth Circuit Court of Appeals, was the Chesapeake Bay Foundation. SELC filed its opening brief on May 31. Response briefs are due to be filed by July 24. Oral arguments are expected in the Fall.

7. Virginia State Water Board 401 Certification – The Virginia water quality certification under Section 401 of the Clean Water Act was granted December 12, 2017 by the State Water Control Board. The action was challenged in a suit filed by SELC on behalf of several conservation group clients and argued before the Fourth Circuit Court of Appeals on September 28, 2018. The principal contention in the case was that the Board’s approval of the certificate for the ACP was, on several grounds, arbitrary and capricious. On January 14, 2019, the Court rejected the arguments of the petitioners.

ACP Appeals Forest Service Decision to U.S. Supreme Court

From Allegheny-Blue Ridge Alliance’s ABRA Update 235:

Atlantic Coast Pipeline, LLC (ACP, LLC) on June 25, 2019, filed an appeal with the U.S. Supreme Court asking it to review the December 13, 2018 decision of the Fourth Circuit Court of Appeals that said the U.S. Forest Service lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (Trail). The filing by ACP, LCC of a Writ of Certiorari (appeal to a higher court a lower court’s decision) was accompanied by a similar petition by the U.S. Solicitor General. Both had been anticipated. In its petition to the Court, ACP, LLC argued that:

  • “Several environmental groups challenged the pipeline on numerous grounds, including the novel theory that the Forest Service lacked statutory authority to grant a right-of-way because the entire Trail and the land underneath is National Park System land under the exclusive authority of the National Park Service. Because the MLA does not authorize any federal agency to grant pipeline rights-of-way across National Park System land, the import of this theory was not that the wrong federal agency had granted the right-of-way under the Trail, but that no agency had that power.”
  • “. . .the decision imperils not just the billions of dollars invested in this pipeline, but future projects that will cross under the Trail, the 50-some pipelines that already cross under the Trail that require ongoing regulatory approvals from other state and federal agencies, and potentially other projects (including electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas) that cross national trails administered by the National Park Service. “In short, the decision below is both profoundly wrong and profoundly important. It misreads federal statutes that make clear that the designation of a trail does not transfer authority over the land being crossed. It will chill investment, harm millions of energy consumers, and unsettle longheld agency views. This decision plainly warrants this Court’s plenary review.”

The Solicitor General’s petition echoes the contentions made in the ACP, LLC petition:

“. . . the court of appeals misread the National Trails System Act, decreeing that long sections of the Appalachian Trail within national forests rest on lands that are rendered part of the National Park System as a result of the presence of the Trail on the surface, and therefore cannot be subject to rights-of-way granted under the Mineral Leasing Act. That ruling threatens to hamper the development of energy infrastructure in the eastern United States, including the construction and operation of the natural gas pipeline at issue in this case.”

The Southern Environmental Law Center (SELC), which represents the petitioners that brought the original lawsuit before the Fourth Circuit, has 30 days (until July 25) to file a brief with the Court commenting on the ACP, LLC and Solicitor General petitions. The seven petitioners represented by SELC – all members of ABRA – are: Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

Reuters press coverage of the ACP filing is here.

SELC Comments to Forest Service on AT

From Allegheny-Blue Ridge Alliance’s ABRA Update 235:

The Southern Environmental Law Center (SELC) wrote the U.S. Forest Service (USFS) on June 24 regarding the Fourth Circuit Court of Appeals’ December 18 decision that the USFS lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (ANST). The SELC letter follows an April 30 communication from USFS to the Atlantic Coast Pipeline, LLC (ACP, LLC) asking the company if it would like the USFS to “renew is consideration of the right-a-way application for the ACP.” The company responded in the affirmative. The SELC letter points out that:

  • “(1) the Cowpasture decision does not affect the Forest Service’s other management authorities for the ANST;
  • “(2) reasonable off-forest alternatives exist for the ACP to cross the ANST; and
  • “(3) while the Forest Service has never before and cannot now issue a new gas pipeline right-of-way across the ANST, options exist for new pipelines to be built in the eastern United States, and existing pipelines are unaffected by the Cowpasture decision.”

SELC further explains to USFS:

  • “We have examined every existing crossing of the ANST by an oil or gas pipeline and confirmed that the Forest Service has never before granted a new right-of-way for an oil or gas pipeline to cross the ANST where it traverses a national forest, until it did so for the Atlantic Coast and Mountain Valley pipelines.”
  • “Of the pipelines that do cross the Appalachian Trail on federally-owned land, nearly all existed before the creation of the Appalachian Trail or before the land was acquired by the federal government. The Mineral Leasing Act applies only to the initial grant of a right-of-way or the renewal of temporary rights-of-way for oil and gas pipelines. See 30 U.S.C. § 185(a), (q). Permanent rights-of-way granted before the creation of the ANST as land in the National Park System are unaffected by the Cowpasture decision because they require no new authorization under the Mineral Leasing Act. Similarly, the federal government took ownership subject to any property rights for permanent rights-of-way that existed prior to federal acquisition; such property rights do not require renewal under the Mineral Leasing Act and are unaffected by the Cowpasture decision.”