Category Archives: Forest Service

Mountain Valley gets another approval for pipeline construction

From The Roanoke Times. The pipeline gained another 17 miles Thursday in its quest to complete construction of the natural gas pipeline by the end of next year. December 17, 2020.

The Federal Energy Regulatory Commission approved the company’s request to resume work on a stretch of the 303-mile pipeline that passes through Giles and Craig counties, between two sections of the Jefferson National Forest.

In 2018 FERC issued a stop-work order on an approximately 25 mile section of planned pipeline following an appellate court throwing out a U.S. Forest Service permit for the pipeline to cross 3.5 miles of national forest.

But, in a 2-1 decision Thursday, the commission ruled that Mountain Valley had presented sufficient evidence to show that resuming work on a 17-mile segment of the pipeline on private land would not harm the forest. The decision was not without dissent however, with Commissioner Richard Glick writing ‘That is a serious mistake’.

Forest Service Proposes Easing Curbs on Oil and as Development in National Forests

On September 2, 2020, the U.S. Forest Service (NFS) published in the Federal Register a proposed rule that would ease existing restrictions on oil and gas development in the National Forests. The action follows a September 2018 Advanced Notice of Proposed Rulemaking (ANPR).

The NFS proposal, available at https://www.federalregister.gov/documents/2020/09/01/2020-18518/oil-and-gas-resources, summarized the comments received on the ANPR, as follows:

  • “Fifty-seven public comments included statements of general opposition, and twenty-three included statements of general support for the proposed rule. The remainder expressed neither opposition nor support.
  • “Stated reasons for general opposition include the destruction of national forests and natural resources for financial or political interests; inadequate protection of human and environmental health; adverse impacts to recreation opportunities and tourism; and unsustainable reliance on fossil fuels.
  • “Stated reasons for general support include the generation of revenue; large existing demands for oil and gas; decreases in regulatory burden on the oil and gas industry; promotion of domestic energy production; and creation of a simplified process leading to quicker leasing decisions and elimination of duplication with the Bureau of Land Management.”

Comments to the Forest Service on the proposed rule are due November 2, 2020.
https://www.federalregister.gov/documents/2020/09/01/2020-18518/oil-and-gas-resources

Forest Service Cautioned Against Relying on FERC’s EIS for the ACP


From Allegheny-Blue Ridge Alliance’s ABRA Update #282, June 25, 2020

The U.S. Forest Service has been cautioned that it should not depend upon the reliability of the Final Environmental Impact Statement (FEIS) for the Atlantic Coast Pipeline (ACP) developed in 2017 by the Federal Energy Regulatory Commission (FERC) as the agency develops a Supplemental Environmental Impact Statement (SEIS) for the project. The Forest Service announced on June 11 that it was developing a SEIS in response to the Fourth Circuit Court of Appeals’ vacating of the Forest Service permit for the ACP. While one portion of that opinion (e.g. authority to grant the ACP the right to cross the Appalachian Trail) was overturned on June 15 by the U.S. Supreme Court, several deficiencies in the permit for the ACP are required to be remedied by the Forest Service before it can issue the ACP a new permit. The Southern Environmental Law Center (SELC) stated in a June 22 letter to the Forest Service:

The Forest Service cannot continue to rely on FERC’s obsolete FEIS. The original analyses of potential alternatives to the project and the environmental consequences of its risky and costly preferred route are in question. Significant, new and relevant information related to endangered and threatened species, water quality, landslides and slope failures, environmental justice communities, and climate change demonstrates the original analysis is stale and incapable of allowing effective review of the environmental consequences of the project. Meanwhile, the energy landscape of the region the ACP purports to serve also has transformed dramatically, the costs of the project have ballooned, and its timeline has been pushed back.

A motion was filed with FERC on May 30 by SELC, Appalachian Mountain Advocates and the Chesapeake Bay Foundation asking that FERC conduct an SEIS for the ACP to address significant new information bearing on the project’s environmental impacts.

Forest Service Announces Supplemental EIS Process for ACP


From the Allegheny-Blue Ridge Alliance’s ABRA Update #280, June 11, 2020

Development of a Supplemental Environmental Impact Statement (SEIS) for the Atlantic Coast Pipeline (ACP) was announced June 11 [2020] by the U.S. Forest Service (USFS). The Notice of Intent, published in the Federal Register, is in response to the Fourth Circuit Court of Appeals action of December 13, 2018 vacating the USFS’s Record of Decision and Special use Permit issued for the ACP. While one of the reasons for the Court’s action – whether the USFS had the authority to authorize the ACP to cross the Appalachian National Scenic Trail (ANST) – is on appeal to and awaiting a decision by the U.S. Supreme Court, there were several other issues in question that the SEIS process will focus upon:

  • Issues identified in the Court ruling including the potential for the proposal to cause adverse impacts to soil, water, and threatened and Endangered Species Act (ESA) Threatened and Endangered species and their habitat;
  • The purpose and impact of the Forest Plan amendments on affected resources (soil, water, ESA Threatened and Endangered species, scenic integrity, ANST, and eligible recreation rivers) and consistency with the Planning Rule;
  • The feasibility and practicality of having routes that are not on NFS lands; and,
  • A re-evaluation and assessment of erosion, sedimentation, and water quality effects in relation to anticipated mitigation effectiveness.

The USFS Federal Register Notice of Intent states that a draft SEIS will be available in July 2020 and that a final SEIS is anticipated later in 2020. The Notice indicated that when the Draft SEIS is made available there will be information provided about how public comments can be made.

Herring Files Amicus Brief in Cowpasture Case

Virginia Attorney General Mark Herring has filed an amicus brief in the Cowpasture case before the US Supreme Court, the case in which the Forest Service and the Atlantic Coast Pipeline are challenging the Fourth Circuit Court’s ruling on the Forest Service’s permit for the ACP to cross the Appalachian Trail.

Herring’s lead argument is that “The Pipeline Threatens Virginia’s Natural Resources Without Clear Corresponding Benefits” – in other words, the ACP is not needed. The brief’s second argument is that “The Challenged Permitting Decision Violated Numerous Federal Statutes and Regulations.”

The brief’s summary:

The Atlantic Coast Pipeline is a proposed 600-mile-long natural gas pipeline that would begin in West Virginia and terminate in two different locations in North Carolina and Virginia. The pipeline would bisect Virginia from its northwestern corner to its southern border before splitting in two and turning northeast towards the Atlantic Ocean. Along its proposed route, the pipeline would run directly through several of Virginia’s most cherished places — the George Washington National Forest, the Blue Ridge Parkway, and the Appalachian Trail.

The pipeline company (Atlantic) claims the project is necessary to address an unmet and growing demand for natural gas in Virginia and North Carolina. But that claim does not withstand scrutiny. Indeed, recent analyses indicate that the demand for natural gas will remain flat or decrease for the foreseeable future and can be met with existing infrastructure.

Beyond offering dubious benefits, the pipeline unquestionably threatens some of Virginia’s most valued natural sites. The George Washington National Forest, the Blue Ridge Parkway, and the Appalachian Trail are woven into the fabric of Virginia’s history, offering solitude and recreation to Virginians and visitors for generations, bringing tourism and its corresponding benefits to the neighboring communities. Despite the undisputed (and indisputable) value of the natural resources in the pipeline’s path, the United States Forest Service failed to conduct the meticulous review of Atlantic’s permit application called for by the Service’s governing statutes and regulations. Instead, the permitting process was rushed and slip-shod and driven by Atlantic’s arbitrary deadlines. Given the chaotic nature of the agency proceedings, it is unsurprising that the Fourth Circuit invalidated the permit on three separate grounds that are entirely independent of the question whether the Forest Service has authority to grant Atlantic permission to cross the Appalachian Trail.

Atlantic and the Forest Service challenge none of those alternative holdings. As a result, the challenged permit will be invalid regardless of how the Court resolves the question on which it granted review. What is more, the Fourth Circuit’s decision specifically requires the Service to consider alternative routes that do not cross National Forest land. For that reason, it is highly unclear if the issue before this Court — whether the Mineral Leasing Act would authorize the Forest Service to issue a pipeline right-of-way across the Appalachian Trail — will re-emerge. The Forest Service’s arguments to the contrary betray its intent to repeat the shoddy review conducted the first time around, ignoring its statutory and regulatory mandate to give due consideration to alternative routes for the pipeline. This Court should not indulge the agency’s abdication of its critical responsibilities.

Virginia agrees with the arguments made by respondents and their other State amici and urges this Court to affirm if it reaches the question presented. In the alternative, Virginia asks the Court to dismiss the writ of certiorari given the Fourth Circuit’s (entirely correct) conclusion that the challenged permit fails for numerous other reasons. Because respondents and their other State amici aptly present the arguments for affirming on the specific question on which this Court granted review, this brief focuses on the Fourth Circuit’s alternative grounds for invalidating the challenged permit.

Read Herring’s full amicus brief here.

Other states attorneys general filed amicus briefs supporting the Fourth Circuit’s decision. From Allegheny-Blue Ridge Alliance’s ABRA Update #260:

The amicus brief filed by Vermont Attorney General Thomas Donovan, on behalf of his state and 12 other states and the District of Columbia, stressed that the Appalachian Trail is a vital part of the National Park System and that “existing Appalachian Trail pipeline crossings and utility easements will be unaffected” by the Fourth Circuit’s decision. The AGs’ brief also notes that the “availability of adequate energy sources or even this particular pipeline project” are not imperiled by the Fourth Circuit decision, noting that the project could be built on nonfederal land to cross the Trail.

Seven of the 13 states filing amici briefs in support of the Fourth Circuit decision encompass 58% of the total length of the Appalachian Trail. Of the 18 states whose Attorneys General filed briefs in support of the Forest Service/ACP appeal, only 2 are states traversed by the Trail – Georgia and West Virginia – and their total of 80 Trail miles represents less than 4% of the Trail’s 2200-mile length. Other amici briefs filed this week in support of the Fourth Circuit decision include those by: John Jarvis, former Superintendent of the National Park Service; Natural Resources Defense Council; Wintergreen Property Owners Association; and a joint brief by Nelson County, VA and the City of Staunton.

A link to all the briefs filed is available here.

SELC Files Brief with Supreme Court


On January 15, 2020, the Southern Environmental Law Center (SELC) and the Sierra Club Environmental Law Program filed a brief with the U.S. Supreme Court in response to the briefs filed in December by the U.S. Forest Service and the Atlantic Coast Pipeline, LLC. The Forest Service and the ACP are challenging the Fourth Circuit Court of Appeals decision in the Cowpasture River Preservation Association v. U.S. Forest Service that vacated the Atlantic Coast Pipeline’s permit from the Forest Service. That permit included the right to cross the Appalachian National Scenic Trail. The SELC/Sierra brief urges the Supreme Court to uphold the Fourth Circuit decision on the grounds that: 1) the Forest Service lacks authority to grant a pipeline right-of-way because the Appalachian Trail is land in the National Park System; and 2) the petitioners cannot separate the “Trail” from the Federal “lands” dedicated to the Trail. The latter argument was set forth in the briefs filed by the Forest Service and ACP, LLC.

Click here for a copy of the SELC/Sierra brief.

SELC represents the Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network and Virginia Wilderness Committee. Sierra Club Environmental Law Program is representing itself and Wild Virginia. Amicus briefs in support of the SELC/Sierra brief must be filed by January 22. The case is scheduled to be argued before the Supreme Court on February 24, 2020.