897 F.3d 582
4th Cir.2018Background
- Mountain Valley Pipeline (MVP) proposed ~303.5 miles of 42-inch interstate natural gas pipeline crossing federal lands, including ~3.6 miles (≈83 acres) of the Jefferson National Forest.
- FERC served as NEPA lead agency and issued a Final Environmental Impact Statement (EIS) and a Certificate of Public Convenience and Necessity; the Forest Service and BLM were cooperating agencies and adopted the EIS.
- BLM issued a Record of Decision (ROD) granting a 30-year, 50-foot operational right-of-way (ROW) across Jefferson National Forest, adopting the FERC EIS; Forest Service issued a ROD amending the Jefferson Forest Plan to permit the project on Forest Service land (amendments limited to MVP).
- Petitioners (Sierra Club et al.) challenged the Forest Service and BLM RODs under NEPA, the National Forest Management Act (NFMA)/2012 Planning Rule, and the Mineral Leasing Act (MLA).
- The Fourth Circuit vacated both agency RODs and remanded: Forest Service because its adoption of the EIS (sedimentation analysis) and its Planning Rule analysis were arbitrary and capricious; BLM because it failed to apply the MLA requirement favoring use of existing ROWs to the extent practical.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Forest Service lawfully adopted FERC EIS hydrology/sedimentation analysis under NEPA | Forest Service adopted an EIS that relied on a flawed Hydrologic Report (containment = 79%, impact threshold = 10%); Forest Service had serious earlier concerns (proposed 48%) and did not explain why concerns were satisfied; thus no independent review or "hard look." | Agencies relied on MVP studies and explanations; FERC/BLM/Forest Service reviewed the report and adopted the EIS; subsequent materials supported the chosen metrics. | Court: Forest Service acted arbitrarily and capriciously; failed to show independent review or explain abandonment of its 48% concern; remand for explanation/supplemental analysis (esp. regarding TES and reliance on a superseded draft). |
| Whether EIS/RODs inadequately considered forest impacts and alternatives under NEPA | Petitioners say agencies failed to analyze forest fragmentation, interior forest loss, and more nuanced patch/connectivity or visually preferable routes; alternatives analysis was insufficient. | Agencies point to detailed EIS analysis of fragmentation, edge effects, visual impacts, and discussion of multiple alternatives weighing tradeoffs (length, crossings, disturbance). | Court: Petitioners failed to show the agencies entirely failed to consider forest impacts; agencies provided adequate analysis and explanation; claim denied. |
| Whether Forest Service complied with NFMA/2012 Planning Rule when amending Jefferson Forest Plan ("directly related" test) | Amendments exempt MVP from soil/riparian substantive requirements; Forest Service misapplied §219.13(b)(5) by analyzing only effects and not the purpose of the amendment; soil/water/riparian requirements are directly related and must be applied. | Forest Service argued mitigation and project design avoid substantial adverse effects, and applied the Rule consistent with scope/scale of amendment. | Court: Forest Service misread the regulation by failing to analyze the amendment's purpose; soil/water/riparian requirements are "directly related" and must be applied; remand for proper application. |
| Whether BLM complied with MLA obligation to require use of existing rights-of-way "to the extent practical" | BLM failed to make a practicability finding favoring existing ROWs and instead adopted NEPA preference for alternatives only if they were "significantly" better; thus BLM did not apply MLA's higher/specific standard. | BLM contends its incorporation of the EIS analysis sufficed; it retains discretion and considered collocation but other factors made existing-ROW alternatives impractical. | Court: BLM failed to show it determined utilization of existing ROWs was impractical; it "entirely failed to consider an important aspect" required by MLA; vacated and remanded for practicability analysis. |
Key Cases Cited
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (NEPA imposes procedural requirements focused on evaluation and disclosure of environmental impacts)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (agencies must take a "hard look" at environmental consequences)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking)
- Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) (court must ensure agency articulated rational connection between facts and choice)
- Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581 (4th Cir. 2012) (judicial review under APA; arbitrary and capricious standard)
- Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir. 1996) (cooperating agencies may adopt another agency’s EIS only if it meets adequacy standards and comments are satisfied)
- Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374 (4th Cir. 2014) (description of arbitrary and capricious review)
- Michigan v. EPA, 135 S. Ct. 2699 (2015) (courts may not supply agency's reasoning; must judge on agency's stated grounds)