Court Throws Out Forest Service Approvals for Atlantic Coast Pipeline

Dec 13, 2018

A federal court today ruled the U.S. Forest Service improperly granted permits for the Atlantic Coast Pipeline to cross under national forest lands, including the Appalachian Trail.

In her 60-page opinion, 4th U.S. Circuit Court of Appeals Judge Stephanie Thacker bashed the agency for failing to protect federal land when it issued approvals to allow the 600-mile Atlantic Coast Pipeline to cross the George Washington National Forest, Monongahela National Forest and the Appalachian Trail.

"We trust the United States Forest Service to 'speak for the trees, for the trees have no tongues,'" Thacker wrote, invoking Dr. Seuss' "The Lorax." "A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources."

Concluding remarks from 4th Circuit Judge Stephanie Thacker's opinion.

The opinion finds the Forest Service violated both the National Forest Management Act and the National Environmental Policy Act. For example, the judge agreed with environmental groups’ arguments that the Forest Service shirked its responsibilities under NEPA by not doing an analysis of whether the pipeline could be approved with a route that goes outside of the national forest lands. The agency argued that FERC was responsible for that analysis in its environmental assessment, but, as the court notes, “no such analysis is apparent anywhere in the record."

Thacker said the agency repeatedly expressed serious concerns about the environmental impacts of the multi-billion dollar natural gas pipeline project, which crosses West Virginia, Virginia and North Carolina.

But, she continued, those concerns were "suddenly, and mysteriously assuaged in time to meet a private pipeline company's deadlines."

“I think what happened here is for years the Forest Service was asking tough questions about this project and requesting additional information and it turned on a dime when the Trump administration came into power," said Patrick Hunter, a lawyer with the Southern Environmental Law Center, which was one of the groups that filed the original lawsuit in February. "Federal agencies can change their minds, but they have to good reasons for doing it and they didn’t have a good reason to change their mind and turn on a dime like this and I think that came through in this decision-making."

The court's opinion also clarifies that the Forest Service does not have the authority to grant the Atlantic Coast Pipeline the approval to cross under the Appalachian Trail. Following that reasoning, the panel of appellate court judges tossed the agency's approvals granting the project's right of way for the Appalachian Trail.

Hunter said the ACP's developer, Dominion Energy, will not have to rethink the project's route and if that is the case, other federal agency permits and approvals may have to be reexamined.

"The pipeline route that Dominion has chosen cannot be approved as of right now, and so if they want to keep working on this thing, they’re going to have to go back to the drawing board," he said. "All of the agencies that have to issue approvals for this pipeline -- their approvals depend on this one pipeline route. And since that can no longer be built as planned, I think that calls all of those other approvals into question."

Aaron Ruby, a spokesman for the project, said in a statement that Dominion strongly disagrees with the court's ruling and the developers intend to immediately appeal the court’s decision to the full U.S. Court of Appeals for the Fourth Circuit. 

"Under Democratic and Republican administrations alike, for decades, 56 other oil and gas pipelines have operated across the [Appalachian Trail]," Ruby said. "This opinion brings into question whether or not these existing pipelines can remain in place."

Currently, all construction along the ACP's route has been stopped following a separate decision from the 4th Circuit, which stayed the pipeline’s revised Biological Opinion and Incidental Take Statement, a key permit from the U.S. Fish and Wildlife Service.