In another rebuke to the federal permitting for the Dominion Energy Inc.-led Atlantic Coast Pipeline LLC natural gas transportation project, the U.S. Court of Appeals for the 4th Circuit struck down the U.S. Forest Service decisions to allow the pipeline to cross national forests and the Appalachian National Scenic Trail.
The 4th Circuit said the agency's actions violated three federal statutes, and the court sent the matter back to the Forest Service for proceedings consistent with its opinion.
The decision followed the same court's stay Dec. 7 of U.S. Fish and Wildlife Service authorizations and its stay of a U.S. Army Corps of Engineers permit, raising the regulatory hurdles for the 600-mile, 1.5-Bcf/d project designed to bring Appalachian gas to mid-Atlantic markets.
In its Dec. 13 opinion, the court sided with environmental groups that included the Sierra Club, Virginia Wilderness Committee, Cowpasture River Preservation, Highlanders for Responsible Development and Shenandoah Valley Battlefields Foundation. The court was highly critical of Forest Service actions in 2017 to back off of its prior objections on landslide risks, erosion impacts and water quality.
"A thorough review of the record leads to the conclusion that the Forest Service abdicated its responsibility to preserve national forest resources," the judges said. "This conclusion is particularly informed by the Forest Service's serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company's deadlines."
Rather than taking the "hard look" required under the National Environmental Policy Act, "the record before us readily leads to the conclusion that the Forest Service's approval of the project 'was a preordained decision' and the Forest Service 'reverse engineered' the [record of decision] to justify this outcome," the judges said.
Overall, the court found that the Forest Service decisions allowing the pipeline to run through part of the George Washington and Monongahela National Forests violated the National Forest Management Act and the National Environmental Policy Act. The Forest Service also lacked authority under the Mineral Leasing Act to allow the pipeline to cross the Appalachian National Scenic Trail, the court said.
In their conclusion, the judges quoted Dr. Seuss' The Lorax, a children's book from 1971. "We trust the United States Forest Service to 'speak for the trees, for the trees have no tongues,'" they said.
Dominion spokesman Aaron Ruby said his company strongly objects to the ruling and Atlantic Coast Pipeline will immediately appeal.
The court's decision is at odds with the consensus of the U.S. Department of Interior, U.S. Department of Agriculture, National Park Service and U.S. Forest Service, Ruby said. "All of these agencies agree that the Forest Service has the full legal authority to approve the Atlantic Coast pipeline's crossing of the Appalachian Trail. Under Democratic and Republican administrations alike, for decades, 56 other oil and gas pipelines have operated across the AT. This opinion brings into question whether or not these existing pipelines can remain in place."
Christi Tezak of ClearView Energy Partners LLC said the court ruling, "combined with the stay pending review on the reissued [biological opinion] from the Fish and Wildlife Service and the suspended [nationwide permit 12], bodes poorly for the project meeting its current schedule."
"The Forest Service might determine that the original route is an appropriate one, but this outcome is not assured," Tezak said. "Defense of the current route could push work off until late 2019 in this area, and a reroute might take even longer."
Gary Kruse, an attorney with LawIQ, added that the court opinion showed a high degree of skepticism of the current administration.
In finding there was failure to meet National Environmental Policy Act requirements, the court said the Forest Service failed to conduct an independent review and instead improperly relied on the environmental impact statement issued by the Federal Energy Regulatory Commission, even where information was lacking to show the project would meet the Forest Service's own standards.
Landslides, erosion risks
On the question of landslides and erosion, the court said the Forest Service, without science-based evidence, abandoned its request for eight site-stabilization designs and adopted FERC's final environmental impact statement, despite its own well-documented concerns about Atlantic Coast Pipeline's mitigation plan for the steep terrain of the central Appalachians. While Atlantic Coast Pipeline had pointed to Columbia Gas Transmission LLC's record as evidence of success in building pipelines in such terrain, the court pointed to a subsequent report of a landslide that caused a rupture of a Columbia project in West Virginia in June.
The court found the Forest Service also failed to explain its turnabout on erosion impacts on sensitive species.
On a separate matter, the court said "the lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 [forest] planning rule — its own regulation intended to protect national forests — in order to accommodate the ACP project through national forest land on Atlantic's timeline are striking and inexplicable."
Maya Weber is a reporter for S&P Global Platts, which, like S&P Global Market Intelligence, is owned by S&P Global Inc.