911 F.3d 150
4th Cir.2018Background
- Atlantic Coast Pipeline (ACP) proposed a 604.5-mile, 42" natural-gas pipeline crossing ~21 miles of George Washington and Monongahela National Forests (GWNF, MNF) and the Appalachian National Scenic Trail (ANST); construction would require long-term forest clearing and a maintained right-of-way.
- FERC led the EIS process; Forest Service participated as a cooperating agency, repeatedly asked that alternatives avoiding national forest lands be analyzed and requested ten site-specific stabilization designs to assess steep-slope risk.
- Forest Service initially raised substantial concerns (landslides, erosion, water quality, threatened/sensitive species) but, as Atlantic’s project timeline approached, accepted fewer site designs, adopted FERC’s FEIS unchanged, issued a Record of Decision (ROD), a Special Use Permit (SUP), and granted a right-of-way across the ANST.
- Petitioners (conservation groups) challenged the ROD/SUP under NFMA, NEPA, and the MLA; the Fourth Circuit reviewed for arbitrary-and-capricious agency action under the APA.
- The court found the Forest Service reversed earlier positions without explanation, failed to apply required 2012 Planning Rule substantive requirements to project-specific Forest Plan amendments, adopted an inadequate FEIS without adequate independent review, and lacked MLA authority to grant a right-of-way across the ANST.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Forest Service applied 2012 Planning Rule substantive requirements to project-specific plan amendments (NFMA) | Amendments’ purpose was to relax forest protections (so requirements are directly related) and Forest Service failed to analyze purpose | Amendments merely authorize project use and need not trigger the 2012 Rule for project-specific amendments | Court: Forest Service acted arbitrarily and capriciously; failed to analyze purpose; 2012 Rule substantive requirements apply and remand required |
| Whether Forest Service met public-participation requirements for certain plan amendments (NFMA) | Some amended standards lacked opportunity for public comment | Forest Service disputes the claim | Court: Petitioners failed to show prejudice from any notice deficiency; argument rejected |
| Whether Forest Service properly determined ACP could not be accommodated off National Forest System lands (Forest Plans/NFMA) | Forest Service failed to analyze whether project needs could reasonably be met off-forest as required by Forest Plans and Manual | Forest Service adopted FERC’s analysis (which used a different standard) and relied on it | Court: Adoption of FERC’s FEIS was insufficient; Forest Service violated NFMA and must analyze off-forest accommodation on remand |
| Whether Forest Service properly adopted FERC’s FEIS and took a "hard look" at alternatives (NEPA) | FEIS inadequately studied non-forest alternatives; Forest Service failed to independently review and ensure its DEIS/FEIS comments were satisfied | Forest Service argues its choice was constrained by FERC’s certificate and reasonably relied on FERC analysis | Court: Forest Service’s adoption was arbitrary and capricious; it failed to perform required independent review and dropped objections without explanation |
| Whether Forest Service took a hard look at landslide risks, erosion, and water-quality impacts (NEPA) | Forest Service accepted incomplete/unsupported mitigation (BIC program, 96% erosion-control efficiency, water-bar impacts) and rescinded demand for site-specific designs without explanation | Forest Service contends NEPA does not require final mitigation plans before acting and that it adequately analyzed impacts | Court: Forest Service failed NEPA’s hard-look standard; relied on inadequate/deferred mitigation and unexplained change in position; remand required |
| Whether Forest Service had statutory authority under the Mineral Leasing Act to grant a pipeline right-of-way across the ANST (MLA) | Forest Service lacked authority because ANST is a unit of the National Park System and MLA excludes National Park System lands | Forest Service argued the National Trails System Act allows agency-specific rights-of-way on lands it manages and thus could authorize on Forest Service lands underlying ANST | Court: MLA bars granting rights-of-way across National Park System lands; ANST is administered by Interior/NPS; Forest Service lacked MLA authority to grant the ANST ROW — ROD and SUP vacated as to the ANST crossing |
Key Cases Cited
- Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018) (applies Planning Rule "directly related" test and NEPA review standards)
- Defenders of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374 (4th Cir. 2014) (standard for arbitrary and capricious review)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action arbitrary and capricious factors)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires a hard look and discussion of mitigation in EIS)
- Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174 (4th Cir. 2005) (NEPA prohibits uninformed agency action; review of mitigation and cumulative deficiencies)
- Bennett v. Spear, 520 U.S. 154 (1997) (standing and traceability principles)
- Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260 (4th Cir. 2018) (standing and agency action/traceability analysis)