24 F.4th 915
4th Cir.2022Background
- Mountain Valley Pipeline (MVP) proposes a >300-mile interstate natural-gas pipeline that would cross ~3.5 miles of the Jefferson National Forest, including four stream crossings.
- In 2017 FERC issued a Certificate and EIS; the Forest Service and BLM relied on FERC's EIS to amend the Jefferson Forest Plan and grant a 30-year right-of-way. The Forest Service modified 11 forest-plan standards, limited to the Pipeline.
- This Court vacated those initial RODs in 2018 for NEPA, NFMA, and MLA defects and remanded for further analysis. Sierra Club v. U.S. Forest Service, 897 F.3d 582 (4th Cir. 2018).
- On remand the agencies prepared a supplemental EIS, again issued renewed RODs approving the Pipeline, and the BLM re-granted the right-of-way; FERC later provisionally authorized use of a "conventional bore" method for certain crossings.
- Petitioners challenged the renewed RODs, alleging failures under NEPA (sedimentation analysis; approval of conventional bore), NFMA (failure to apply 2012 Planning Rule substantive requirements), and the MLA (insufficient collocation analysis). The court grants review in part, vacates the RODs, and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predecisional administrative-review process | Forest Service failed to conduct required predecisional review before final ROD | ROD was signed by Under Secretary, which is exempt from predecisional-review rules | Denied relief — exemption applies; no predecisional-review violation |
| Sediment/erosion analysis and reliance on modeling | Agencies ignored real-world USGS turbidity data indicating greater sediment increases and failed to reconcile/modeling with observed data | Modeling is not site-specific and USGS data is irrelevant or not comparable; burden on petitioners to show relevance | Granted in part — agencies failed to consider/ address USGS data; remand to analyze and reconcile real-world monitoring data |
| Approval of conventional-bore crossing method | Agencies approved conventional bore for Jefferson NF crossings without adequate NEPA analysis or FERC EIS amendment | Supplemental EIS discussed boring; FERC informally approved feasibility | Granted — approval premature; agencies must consider FERC’s fuller environmental analysis before authorizing method in the Forest |
| Alternatives / increased collocation under MLA | BLM failed to show alternatives that would increase collocation were impractical | BLM considered alternatives, found collocation impractical based on constructability, safety, cost, footprint, and purpose factors | Denied — court finds BLM’s practicality framework reasonable and adequately applied |
| Application of 2012 Planning Rule (soil and riparian requirements) | Forest Service did not properly apply the 2012 Rule’s substantive requirements to the project-specific forest-plan amendments | Forest Service applied only those substantive requirements it considered "directly related" and concluded no substantial lessening of protection | Granted — Forest Service misapplied legal standard; remand required to apply 2012 Rule within scope/scale of amendments and assess effects (esp. given sediment uncertainty) |
Key Cases Cited
- Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018) (prior vacatur and remand for NEPA/NFMA/MLA defects)
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (U.S. 2004) (NEPA imposes procedural duties to analyze environmental impacts)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA’s purpose and limits)
- Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (U.S. 1998) (NFMA and forest-plan guidance)
- Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273 (1st Cir. 1996) (agency cannot adopt an alternative outside the range considered)
- Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374 (4th Cir. 2014) (arbitrary-and-capricious review standards)
- Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213 (4th Cir. 2019) (supplemental EIS required for significant new information)
- Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018) (application of 2012 Planning Rule substantive requirements)