Category Archives: National Forest Service

Supreme Court: Pipeline Fights to Watch

In an article published on September 30, 2019, E&E News considers “4 pipeline fights to watch this term.” The justices have the opportunity to consider:

  1. The Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. “In Atlantic Coast v. Cowpasture River Preservation Association, Dominion Energy Inc. and other Atlantic Coast developers are fighting a 4th U.S. Circuit Court of Appeals decision that the Forest Service cannot authorize a path for the pipeline below the Appalachian Trail. The solicitor general filed a companion brief on behalf of the Forest Service. Environmental groups, meanwhile, have urged the justices not to take the case.”
  2. Whether developers of the Mountain Valley project can lawfully seize private property before paying. “Givens v. Mountain Valley Pipeline LLC challenges developers’ ability to immediately take private property for constructing the pipeline before providing payment, an approach known as ‘quick take.’ Their petition aims to overturn precedent set by the 2004 4th Circuit case East Tennessee Natural Gas Co. v. Sage, which allowed pipeline developers to begin construction on private property before paying, provided they had a preliminary injunction. The case is different from typical eminent domain disputes because it doesn’t challenge the legality of the practice, but rather when pipeline developers can take and build on the land.”
  3. A case involving state lands takings for the PennEast pipeline. “Energy lawyers are also closely watching whether a recent decision by the 3rd Circuit on condemning state-owned lands for pipeline development will eventually land in front of the Supreme Court. This month, the court ruled that the developer of the 120-mile PennEast pipeline through Pennsylvania and New Jersey could not use condemnation orders to build significant portions of the line through land owned by the Garden State. The case raises issues of sovereign immunity under the 11th Amendment to the U.S. Constitution and could have important implications for the expansion of pipeline projects in states that oppose oil and gas development. Judges for the 3rd Circuit said that pipeline developers can’t take a state to court for not selling an easement to build a pipeline.”
  4. Challenges over gas exports because the Federal Energy Regulatory Commission’s authority to delegate eminent domain power to pipeline builders is limited to projects in service of interstate commerce. “The U.S. Court of Appeals for the District of Columbia Circuit recently highlighted the issue in a decision over the use of eminent domain to build the Nexus natural gas pipeline through Ohio and Michigan. Those opposed to the pipeline argued that FERC improperly issued a certificate for the project based in part on commitments made by Canadian shippers. That raises the question of whether it is possible to justify that a project designed to supply energy to citizens of foreign countries will serve the public good. The case not only could affect pipelines that cross into Canada and Mexico, but also could have implications for pipelines feeding liquefied natural gas facilities.”

Read the full article here.

Court Cancels BLM and Forest Service Permits


On July 27, 2018, a federal court rescinded Mountain Valley Pipeline’s permit to cross the Jefferson National Forest. The three-judge panel of the U.S. Court of Appeals for the Fourth Circuit voted unanimously to vacate the permits MVP had received from the Forest Service and Bureau of Land Management to cross the Jefferson National Forest.

The lawsuit that led to this decision was brought by the Sierra Club, Wild Virginia, Appalachian Voices and other local groups. According to Wild Virginia, the court sided with their arguments that:

  1. the Forest Service was arbitrary in concluding that sedimentation and erosion impacts to be mitigated to insignificance,
  2. the Forest Service violated the 2012 Forest Planning Rule by arbitrarily concluding that amendments to the forest plan were not “directly related” to that rule, and
  3. that BLM violated the Mineral Leasing Act by failing to demonstrate that alternative routes that would increase co-location with existing rights-of-way were impractical.

As a result of the decision, MVP should halt work in the Jefferson National Forest immediately. David Sligh of Wild Virginia the court’s decision “…upholds the principle that agencies responsible for protecting the public lands and resources must conduct thorough and honest reviews and reject proposals that would harm our interests.”

Friends of Nelson president Helen Kimble commented: “Friends of Nelson and other citizen groups submitted numerous comments to the FERC regarding US Forest Service and National Park Service permits for the route of the Atlantic Coast Pipeline citing numerous deficiencies. We also expressed concern about the use of a third party contractor by the USFS/NPS who also worked for the ACP as a consultant, to review the pipeline operator’s plans for the route. We commend the 4th Circuit for noting similar deficiencies regarding the Mountain Valley Pipeline and taking action to force these agencies to perform a proper review.”

See press coverage by WVTF and the Washington Post.

Conservation Groups File Challenge to Forest Service’s Hasty Decision

Press release from the Southern Environmental Law Center, February 5, 2018:

For Immediate Release: Monday, February 5, 2018
Contact: DJ Gerken, Senior Attorney, djgerken@selcnc.org, 828-258-2023
Claudine McElwain, Communications Manager, cmcelwain@selcva.org, 434-977-4090
Doug Jackson, Deputy Press Secretary, doug.jackson@sierraclub.org, 202-495-3045

Conservation Groups File Challenge to National Forest Service’s Hasty Decision
NFS Decision Fails to Protect Public Lands from Destructive Pipeline Richmond, VA

Today, the Southern Environmental Law Center and The Sierra Club on behalf of a coalition of conservation groups filed suit in federal court against the National Forest Service over a grant recently issued to developers of the fracked gas Atlantic Coast Pipeline.

“Political pressure forced approval of this boondoggle through steep slopes and landslide-prone areas on a treasured national forest,” said Southern Environmental Law Center Senior Attorney DJ Gerken. “Forest Service staff warned of the impacts this project would have, but the agency ignored them and granted special exceptions to let these pipeline developers get their way.”

The Forest Service repeatedly requested additional information from developers yet moved ahead and approved this risky project with its questions unanswered. The pipeline is slated to cut through 20 miles of steep, rugged mountainous regions of national forest land in West Virginia and Virginia. Much of this land provides habitat for rare and endangered species and is land that is regularly used by hikers and campers.

“The terrain which developers propose to cross with this pipeline is completely inappropriate for this kind of project,” said Sierra Club Attorney Nathan Matthews. “This fracked gas pipeline would cause permanent damage to the public lands that are so important to West Virginia’s and Virginia’s natural beauty. It is reckless to threaten the pristine land and tourism economy of those states with a dirty, dangerous project that they don’t even need.”

Pipeline developers have yet to receive all the permits needed for this project, including a water certification from Virginia meant to ensure protection of sensitive waterways. The Forest Service should not allow any work to move forward on national forest lands until this project is fully permitted.

Today’s petition was filed in the U.S. Court of Appeals for the Fourth Circuit on behalf of the Cowpasture River Preservation Association, Highlanders For Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee, and Wild Virginia.

File Your Objections to Forest Service Decision on ACP

The deadline for filing objections with the U.S. Forest Service against their draft record of decision for the proposed Atlantic Coast Pipeline (ACP) is September 5, 2017. (Deadline for Mountain Valley was August 7, 2017).  Write your letters!

On July 21, 2017, the U.S. Forest Service issued a draft Record of Decision to authorize the use and occupancy of National Forest System lands for the Atlantic Coast Pipeline. The Forest Service release statement is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551404.pdf.

The draft Decision document is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551283.pdf.

Wild Virginia provides instructions for how, where, and what to file.

Forest Service Issues Record of Decision

On July 21, 2017, the U.S. Forest Service issued a draft Record of Decision to authorize the use and occupancy of National Forest System lands for the Atlantic Coast Pipeline. The Forest Service release statement is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551404.pdf.

The draft Decision document is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551283.pdf.

Wild Virginia’s statement on the Forest Service release says,

This terrible decision would authorize the Atlantic Coast Pipeline to construct 21 miles of pipeline on lands managed by the George Washington (GWNF) and Monongahela National Forests (MNF). The proposed pipeline route would also cross both the Appalachian National Scenic Trail and the Blue Ridge Parkway.

The Forest Service had to issue this decision because current forest plan standards for both forests do not allow this destructive development. The Forest Service chose to change the rules for ACP and approved 14 total amendments to standards in these forest plans. Without amending these standards the ACP project would violate the forest plans for both of these forests.

“These standards were created to protect our forests and water. The Forest Service has put the integrity of our public lands at risk and goals of private profit ahead of the safety of our watersheds.

This decision is based on the Final Environmental Impact Statement (FEIS) for the Atlantic Coast Pipeline (ACP)

This FEIS is drastically incomplete and in no way addresses the impacts to our lands, air, and water. Read more from our coalition press statement released today: FERC’s final Atlantic Coast Pipeline report a sham. The FEIS glosses over the “profound and permanent harm to water resources and drinking water supplies, forest ecosystems, wildlife and endangered species habitat, historic sites, agricultural resources, public lands including the Appalachian Trail and Blue Ridge Parkway, and local economies”.

This is an important time to make your voice heard:

You have the right to object to this decision if you:

  1. Previously submitted timely, specific written comments to the Forest Service or to FERC during comment periods. (If you’re not sure if you did, we can help you look it up).
  2. Can raise an issue that arose after the formal public comment period closed. More information on how to object Click Here

The release statement sets forth the following parameters for objections to the draft record of decision:

Quick Facts from the Draft Record of Decision:

  • 214 acres of Forest Service lands will be will be maintained and operated for long-term use by ACP.
  • The Pipeline would be installed under 17 perennial, 28 intermittent, and 11 ephemeral waterbodies on Forest Service lands.
  • ACP will cross about 2.4 miles of karst topography on Forest Service lands.
  • The Pipeline could also impact cave invertebrates and other subterranean obligate species (amphipods, isopods, copepods, flatworms, millipedes, beetles, etc.) that are endemic to only a few known locations.

Press coverage of the Forest Service release may be read here:  7-21-17 Nelson County Times/News-Advance. Forest Service issues draft decision to OK use of National Forest System lands for pipeline.