Wild Virginia v. United States Bureau of Land Management ( 2022 )

USCA4 Appeal: 21-1082 Doc: 85 Filed: 01/25/2022 Pg: 1 of 29
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1039
WILD VIRGINIA; SIERRA CLUB; APPALACHIAN VOICES; WILDERNESS
SOCIETY; PRESERVE CRAIG; SAVE MONROE; INDIAN CREEK
WATERSHED ASSOCIATION,
Petitioners,
v.
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of
Agriculture; JIM HUBBARD, in his official capacity as Under Secretary for
Natural Resources and Environment, United States Department of Agriculture;
KEN ARNEY, in his official capacity as Regional Forester of the Southern Region,
Respondents,
MOUNTAIN VALLEY PIPELINE, LLC,
Intervenor.
------------------------------
CHEROKEE FOREST VOICES; GEORGIA FORESTWATCH;
MOUNTAINTRUE; THE CLINCH COALITION; VIRGINIA WILDERNESS
COMMITTEE,
Amici Supporting Petitioner.
AMERICAN FOREST RESOURCE COUNCIL; BLACK HILLS FOREST
RESOURCE ASSOCIATION; COLORADO TIMBER INDUSTRY
ASSOCIATION; FEDERAL FOREST RESOURCE COALITION;
INTERMOUNTAIN FOREST ASSOCIATION; MONTANA WOOD
PRODUCTS ASSOCIATION,
Amici Supporting Respondent.
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On Petition for Review of an Order of the Department of Agriculture. (AGRI-1).
No. 21-1082
WILD VIRGINIA; SIERRA CLUB; APPALACHIAN VOICES; THE
WILDERNESS SOCIETY; PRESERVE CRAIG; SAVE MONROE; INDIAN
CREEK WATERSHED ASSOCIATION,
Petitioners,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the U.S.
Department of Interior; DEB HAALAND, in her official capacity as Secretary of
the Interior; MITCHELL LEVERETTE, in his official capacity as State Director,
Bureau of Land Management, Eastern States,
Respondents,
MOUNTAIN VALLEY PIPELINE, LLC,
Intervenor.
------------------------------
CHEROKEE FOREST VOICES; GEORGIA FORESTWATCH;
MOUNTAINTRUE; THE CLINCH COALITION; VIRGINIA WILDERNESS
COMMITTEE,
Amici Supporting Petitioner,
AMERICAN FOREST RESOURCE COUNCIL; BLACK HILLS FOREST
RESOURCE ASSOCIATION; COLORADO TIMBER INDUSTRY
ASSOCIATION; FEDERAL FOREST RESOURCE COALITION;
INTERMOUNTAIN FOREST ASSOCIATION; MONTANA WOOD
PRODUCTS ASSOCIATION,
Amici Supporting Respondent.
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On Petition for Review of an Order of the Department of Interior. (DOI-1).
Argued: October 29, 2021 Decided: January 25, 2022
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Petitions granted in part and denied in part, vacated and remanded by published opinion.
Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.
ARGUED: Nathan Matthews, SIERRA CLUB, Oakland, California, for Petitioners.
Brian C. Toth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents. Donald B. Verrilli, Jr., MUNGER, TOLLES & OLSON LLP, Washington,
D.C., for Intervenor. ON BRIEF: Ankit Jain, SIERRA CLUB, Washington, D.C.;
Derek O. Teaney, Benjamin Luckett, APPALACHIAN MOUNTAIN ADVOCATES,
INC., Lewisburg, West Virginia, for Petitioners Wild Virginia, Sierra Club, Appalachian
Voices, The Wilderness Society, Preserve Craig, Save Monroe, and Indian Creek
Watershed Association. William J. Cook, Special Counsel, CULTURAL HERITAGE
PARTNERS, PLLC, Washington, D.C., for Petitioner Monacan Indian Nation. Jean E.
Williams, Acting Assistant Attorney General, Todd Kim, Acting Assistant Attorney
General, Justin D. Hemminger, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael D. Smith, Office of
the Solicitor, UNITED STATES DEPARTMENT OF THE INTERIOR, Washington,
D.C.; Sarah Kathmann, Office of the General Counsel, UNITED STATES
DEPARTMENT OF AGRICULTURE, Washington, D.C., for Respondents. George P.
Sibley, III, J. Pierce Lamberson, Brian R. Levey, HUNTON ANDREWS KURTH LLP,
Richmond, Virginia; Sandra A. Snodgrass, HOLLAND & HART LLP, Denver,
Colorado; Thomas C. Jensen, Stacey M. Bosshardt, PERKINS COIE LLP, Washington,
D.C., for Intervenor. J. Patrick Hunter, Asheville, North Carolina, Spencer Gall, Kristin
Davis, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER,
Charlottesville, Virginia, for Amici Cherokee Forest Voices, Georgia ForestWatch,
MountainTrue, The Clinch Coalition, and Virginia Wilderness Committee. Lawson E.
Fite, AMERICAN FOREST RESOURCE COUNCIL, Portland, Oregon, for Amici
American Forest Resource Council, Black Hills Forest Resource Association, Colorado
Timber Industry Association, Federal Forest Resource Coalition, Intermountain Forest
Association, and Montana Wood Products Association.
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THACKER, Circuit Judge:
In these two consolidated cases, several environmental advocacy organizations --
Wild Virginia, the Sierra Club, Appalachian Voices, the Wilderness Society, Preserve
Craig, Save Monroe, and the Indian Creek Watershed Association (collectively,
“Petitioners”) -- seek review of the renewed decisions of the United States Forest Service
(the “Forest Service”) and the Bureau of Land Management (the “BLM”) to allow the
Mountain Valley Pipeline (the “Pipeline”), an interstate natural gas pipeline system, to
cross three and a half miles of the Jefferson National Forest in Virginia and West
Virginia. This is the second time Petitioners have challenged the agencies’ approval of
the Pipeline. We previously vacated the agencies’ records of decision (“RODs”) because
the Forest Service and the BLM failed to comply with the National Environmental Policy
Act (“NEPA”), the National Forest Management Act (the “NFMA”), and the Mineral
Leasing Act (the “MLA”). We directed the agencies to re-evaluate certain aspects of the
Pipeline’s potential environmental impact. Sierra Club, Inc. v. U.S. Forest Serv., 897
F.3d 582 (4th Cir. 2018).
Petitioners contend that the agencies’ renewed RODs after remand also violate
NEPA, the NFMA, and the MLA. As more fully explained below, we agree with
Petitioners in part, so we grant their petitions as to three errors, deny the petitions with
regard to Petitioners’ remaining arguments, vacate the RODs of the Forest Service and
the BLM, and remand for further proceedings consistent with this opinion.
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I.
A.
Governing Statutory and Regulatory Framework
1.
NEPA
NEPA is a federal environmental protection statute that “declares a national policy
of protecting and promoting environmental quality” and requires federal agencies to
scrutinize the potential environmental impacts of their projects. Hughes River Watershed
Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996); see 42 U.S.C. § 4331.
Notably, NEPA does not require the agencies to reach particular substantive results.
Hughes River, 81 F.3d at 443. Rather, NEPA imposes procedural requirements that
obligate federal agencies “to undertake analyses of the environmental impact of their
proposals and actions.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756–57 (2004)
(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349–50 (1989)). In
order to accomplish this objective, NEPA mandates that federal agencies prepare an
environmental impact statement (“EIS”) as part of “every recommendation or report on
proposals for . . . major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). The primary purpose of an EIS is “to ensure
agencies consider the environmental impacts of their actions in decision making.” 40
C.F.R. § 1502.1. Accordingly, the EIS must analyze the proposed project’s “significant
environmental impacts” and discuss “reasonable alternatives that would avoid or
minimize adverse impacts or enhance the quality of the human environment.” Id. Of
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note, “if significant new information or environmental changes come to light after the
agency prepares an EIS,” the agency must prepare a supplemental EIS to address them.
Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 218 (4th Cir. 2019)
(citing 40 C.F.R. § 1502.9).
“Multiple agencies may cooperate to issue an EIS, but a ‘lead agency’ is usually
designated.” Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582, 588 (4th Cir. 2018)
(citing 7 C.F.R. § 3407.11(a)). The Federal Energy Regulatory Commission (“FERC”) is
the lead NEPA agency when the proposed project involves an interstate gas pipeline. Id.(citing 15 U.S.C. § 717n(b)(1); EarthReports, Inc. v. FERC, 828 F.3d 949, 953 (D.C. Cir.
2016)).
“[A]fter the agency makes a decision regarding the action [based on its
consideration of the proposal’s environmental impacts laid out in the EIS], it must
publish a [ROD], at which point it may then finalize its action.” Webster v. U.S. Dep’t of
Agric., 685 F.3d 411, 418 (4th Cir. 2012) (citing Nat’l Audubon Soc’y v. Dep’t of the
Navy, 422 F.3d 174, 185 (4th Cir. 2005)); see 40 C.F.R. § 1505.2.
2.
The NFMA
The NFMA provides substantive and procedural guidance to the Forest Service for
the management of National Forest System lands. Pursuant to the NFMA, the Forest
Service “develops land and resource management plans” -- known as forest plans -- “and
uses [them] to ‘guide all natural resource management activities’” within the national
forests. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 729 (1998). To that end, “the
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Forest Service must ensure that all resource plans and permits, contracts, and other
instruments for the use and occupancy of National Forest System lands . . . are consistent
with the Forest Plans.” Sierra Club, 897 F.3d at 600 (alteration and internal quotation
marks omitted); see 16 U.S.C. § 1604(i). When a proposed project is not consistent with
the applicable forest plan, the Forest Service must decide whether to modify the project
to ensure consistency with the forest plan, reject the proposal or terminate the project, or
amend the forest plan to accommodate the project. 36 C.F.R. § 219.15(c).
In 2012, pursuant to the NFMA, the Forest Service promulgated a rule governing
amendments to forest plans (the “2012 Planning Rule”). See National Forest System
Land Management Planning, 77 Fed. Reg. 21,162 (Apr. 9, 2012) (to be codified at 36
C.F.R. pt. 219). The 2012 Planning Rule imposes “substantive requirements” for
sustainability, diversity of plant and animal communities, multiple land uses, and
timbering that are intended to “maintain or restore” ecological integrity and ecosystem
diversity in national forests while preserving those forests for multiple uses. Id.; see 36
C.F.R. §§ 219.8–219.11. The 2012 Planning Rule further provides that a forest plan
“may be amended at any time,” 36 C.F.R. § 219.13(a), but it requires that any such
amendment be “consistent with Forest Service NEPA procedures,” id. § 219.13(b)(3).
Due to confusion about how to apply the 2012 Planning Rule’s substantive
requirements to forest plans developed pursuant to a 1982 forest planning rule with
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different requirements, 1 the Forest Service revised its 2012 Planning Rule in 2016 (the
“2016 Revised Rule”). See National Forest System Land Management Planning, 81 Fed.
Reg. 90,723 (Dec. 16, 2016) (to be codified at 36 C.F.R. pt. 219). The 2016 Revised
Rule requires the Forest Service, when amending a forest plan, to determine which
“substantive requirements” of the 2012 Planning Rule are “directly related” to the forest
plan amendment and “apply” those requirements “within the scope and scale of the
amendment.” 36 C.F.R. § 219.13(b)(5).
3.
The MLA
The MLA “authorizes the Secretary of the Interior to lease public-domain lands to
private parties for the production of oil and gas.” BP Am. Prod. Co. v. Burton, 549 U.S.
84, 87 (2006); see 30 U.S.C. § 185(a). “The MLA regulates the location of interstate
pipelines across most federal lands,” which “includes approving rights of way and
easements for the siting of those pipelines.” Sierra Club, 897 F.3d at 604 (emphasis
deleted). “In order to minimize adverse environmental impacts and the proliferation of
1
Forest plans developed pursuant to the 1982 forest planning rule are guided by
fourteen overarching “principles,” and in addition to procedural standards, the rule
includes substantive standards for timbering, wilderness management, and resource
preservation. 36 C.F.R. §§ 219.1–219.29 (1982), https://www.fs.fed.us/emc/nfma/
includes/nfmareg.html. When proposing the 2012 Planning Rule, the Forest Service
acknowledged that “most 1982 rule [forest] plans will not be consistent with all of the
[substantive] requirements of the 2012 [P]lanning [R]ule.” National Forest System Land
Management Planning, 81 Fed. Reg. 70,373, 70,376 (proposed Oct. 12, 2016) (to be
codified at 36 C.F.R. pt. 219).
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separate rights-of-way across Federal lands,” the MLA requires that rights of way in
common be utilized “to the extent practical.” 30 U.S.C. § 185(p).
When multiple federal agencies administer the federal lands traversed by an
interstate pipeline, the MLA authorizes the Secretary of the Interior, “after consultation
with the agencies involved, to grant or renew rights-of-way or permits through the
Federal lands involved.” 30 U.S.C. § 185(c)(2). The Secretary of the Interior has
delegated her authority to the BLM. 36 C.F.R. § 251.54(b)(3) (“Proposals for oil and gas
pipeline rights-of-way crossing Federal lands under the jurisdiction of two or more
Federal agencies must be filed with the [BLM] . . . .”); 43 C.F.R. § 2884.26 (“If the
application involves lands managed by two or more Federal agencies, BLM will not issue
or renew [a right of way or temporary use permit] until the heads of the agencies
administering the lands involved have concurred.”).
B.
The Pipeline Project
The Pipeline, a project of Mountain Valley Pipeline, LLC (“MVP”), is planned to
extend for more than 300 miles from Wetzel County, West Virginia, to Pittsylvania
County, Virginia, upon its completion. On October 13, 2017, FERC issued a Certificate
of Public Convenience and Necessity 2 (the “FERC Certificate”) authorizing MVP to
2
Pursuant to the Natural Gas Act, a natural gas company is prohibited from
“engag[ing] in the transportation or sale of natural gas . . . or undertak[ing] the
construction or extension of any facilities therefor, or acquir[ing] or operat[ing] any such
facilities or extensions thereof, unless there is in force with respect to such natural-gas
(Continued)
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construct, operate, and maintain the Pipeline, new compressor stations, and new
regulation stations and interconnections. Per NEPA, FERC also prepared an EIS for the
Pipeline. The EIS purportedly considered the Pipeline’s projected impact on geology and
soils; groundwater, surface waters, and wetlands; vegetation and wildlife; land use and
visual resources; socioeconomics and transportation; cultural resources; air quality and
noise; and reliability and safety. It also purportedly analyzed the Pipeline’s cumulative
impacts and considered alternatives. Ultimately, FERC concluded that “construction and
operation of the [Pipeline] would result in limited adverse environmental impacts, with
the exception of impacts on forest” and that “approval of the [Pipeline] would result in
some adverse environmental impacts, but the majority of these impacts would be reduced
to less-than-significant levels.” J.A. 2015. 3
The Pipeline’s projected route crosses a 3.5-mile swath of the Jefferson National
Forest in Giles and Montgomery Counties in Virginia and Monroe County in West
Virginia. This section of the projected route includes four stream crossings. In order to
construct the Pipeline on these lands, MVP must obtain rights of way and temporary use
permits from the BLM, in consultation with the Forest Service. The Pipeline must also
be consistent with the forest plan developed by the Forest Service for the Jefferson
company a certificate of public convenience and necessity issued by [FERC] authorizing
such acts or operations.” 15 U.S.C. § 717f(c)(1)(A).
3
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
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National Forest (the “Jefferson Forest Plan”). The Jefferson Forest Plan “[e]stablishes
the management direction and associated long-range goals and objectives of the Jefferson
National Forest” and “[s]pecifies [certain] standards, which set the sideboards for
achieving the goals, objectives and desired conditions, as well as provide meaningful
direction when implementing projects” within the Jefferson National Forest. J.A. 1937.
The Pipeline, as proposed, and as detailed more specifically below, would be inconsistent
with 11 standards from five categories -- utility corridors, soil and riparian resources, old
growth management areas, Appalachian National Scenic Trail areas, and scenery
integrity objectives -- in the Jefferson Forest Plan.
C.
Prior Proceedings
In December 2017, the Forest Service, using FERC’s EIS, initially decided to
amend the Jefferson Forest Plan to accommodate the Pipeline but limit the amendments’
applicability only to the Pipeline project. Consequently, the Forest Service’s ROD
modified 11 standards in the Jefferson Forest Plan that were inconsistent with the
Pipeline project and waived 3 of those 11 standards. For example, the ROD relaxed one
of the standards for soil and riparian resources as follows (with the modification in bold):
Standard FW-5: On all soils dedicated to growing vegetation,
the organic layers, topsoil and root mat will be left in place
over at least 85% of the activity area and revegetation is
accomplished within 5 years, with the exception of the
operational right-of-way and the construction zone for the
Mountain Valley Pipeline, for which the applicable
mitigation measures [MVP proposed] must be
implemented.
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J.A. 2231 (emphasis in original). However, we vacated the Forest Service’s ROD
because the Forest Service did not conduct an “independent review” of the EIS’s
sedimentation analysis. 4 Sierra Club, 897 F.3d at 594. In addition, we rejected the
Forest Service’s conclusion that the soil and riparian resources requirements set forth in
the 2012 Planning Rule were not “directly related” to the amendments to the Jefferson
Forest Plan to accommodate the Pipeline, principally because the Forest Service itself
acknowledged that those requirements could not be met absent the amendments. Id. at
603.
The BLM also initially adopted FERC’s EIS and, “with the concurrence of the
Forest Service and the [United States Army] Corps of Engineers . . . issued a [ROD]
granting a 30 year, 50-foot operational right of way and associated temporary use
permits” for the Pipeline’s projected route through the Jefferson National Forest. Sierra
Club, 897 F.3d at 589. But, we held that the BLM failed to determine whether “the
4
“Sedimentation is defined as the ‘process of deposition of a solid material,’ or
sediment, ‘from a state of suspension or solution in a fluid’ . . . .” Sierra Club, 897 F.3d
at 590 n.5. Specifically, in rejecting the EIS’s sedimentation analysis, we took issue with
the Forest Service’s acceptance of the EIS’s estimation that sedimentation control
measures would result in 79% containment of sediment -- a figure derived from a
hydrological analysis MVP provided to FERC -- despite the Forest Service’s estimation
in comments on a draft of the hydrological analysis that 48% containment was a more
appropriate figure. See id. at 595. We also questioned the Forest Service’s acceptance of
the EIS’s conclusion that the Pipeline would increase sedimentation to levels in excess of
10% above the baseline, despite its earlier concerns -- again in comments on a draft of the
hydrological analysis -- that such levels could negatively affect sensitive aquatic species.
See id. at 595–96.
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utilization of an existing right of way would be impractical,” in violation of the MLA. Id.
at 605 (emphasis deleted).
Therefore, we vacated the RODs of the Forest Service and the BLM and remanded
this matter to the agencies. We directed the Forest Service to more thoroughly analyze
the Pipeline’s sedimentation impacts and apply the 2012 Planning Rule’s soil and riparian
resources requirements to the proposed Jefferson Forest Plan amendments for the
Pipeline. Sierra Club, 897 F.3d at 596, 603. And we instructed the BLM to make a
specific finding about the practicality of utilizing an existing right of way for the
Pipeline. Id. at 605.
D.
Proceedings Since Remand
1.
The Forest Service
On remand, the Forest Service and the BLM prepared a supplemental EIS which
sought to address the Pipeline’s sedimentation impacts utilizing two hydrological
analyses provided by MVP. But neither of these hydrological analyses, nor the
supplemental EIS, considered water quality monitoring data from the United States
Geological Survey (“USGS”) monitoring stations fifteen miles outside the Jefferson
National Forest, where construction of the Pipeline has occurred near the Roanoke River.
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The USGS data showed water turbidity 5 values that were 20% higher downstream from
the Pipeline’s construction than upstream -- a significant difference from the 2.1%
increase in sedimentation the hydrologic analyses predicted for the Roanoke River.
The Forest Service also elaborated on its analysis of the 2012 Planning Rule’s
application to the Pipeline. In particular, it determined that 10 of the 2012 Planning
Rule’s substantive requirements were directly related to the amendments to the Jefferson
Forest Plan for the Pipeline:
§ 219.8(a)(2)(ii) – Soils and soil productivity;
§ 219.8(a)(2)(iii) – Water quality; § 219.8(a)(2)(iv) – Water
resources in the plan area; § 219.8(a)(3)(i) – Ecological
integrity of riparian areas; § 219.8(b)(3) – Multiple uses that
contribute to local, regional, and national economies;
§ 219.9(a)(2) – Ecosystem diversity of terrestrial and aquatic
ecosystems; § 219.10(a)(3) – Appropriate placement and
sustainable management of infrastructure, such as recreational
facilities and transportation and utility corridors;
§ 219.10(b)(1)(i) – Sustainable recreation, including
recreation setting, opportunities, access, and scenic character;
§ 219.10(b)(1)(iv) – Other designated areas or recommended
designated areas; and § 219.11(c) – Timber harvest for
purposes other than timber production.
J.A. 582. The supplemental EIS provides that the amendments to accommodate the
Pipeline are “in full compliance with the [2012] Planning Rule because all applicable
substantive requirements are applied to provide protection to resources without
5
“Turbidity refers to cloudiness caused by very small particles of silt, clay, and
other substances suspended in water.” Water Supply System: Health Concerns,
Encyclopaedia Britannica – Technology, https://www.britannica.com/technology/water-
supply-system/Health-concerns#ref1084761.
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substantial lessening of protections for those resources across the [Jefferson National
Forest].” Id.
2.
The BLM
As part of the supplemental EIS it prepared in conjunction with the Forest Service,
the BLM evaluated whether existing rights of way on federal lands could accommodate
the Pipeline without issuing a new right of way. In doing so, the BLM considered
alternative routes collocating the Pipeline with the proposed route of the since-cancelled
Atlantic Coast Pipeline, 6 with existing public roads, and with electric transmission lines.
The BLM also considered several route variations. The BLM made specific findings
about whether each alternative route or route variation was practical and concluded that
“none . . . would [both] result in greater collocation on federal lands and be practical.”
J.A. 819. It determined that those alternative routes that would increase collocation
6
On July 5, 2020, the energy companies behind the Atlantic Coast Pipeline
announced that they would no longer move forward “due to ongoing delays and
increasing cost uncertainty which threaten the economic viability of the project.” Press
Release, Dominion Energy, Dominion Energy and Duke Energy Cancel the Atlantic
Coast Pipeline (July 5, 2020), https://news.dominionenergy.com/2020-07-05-Dominion-
Energy-and-Duke-Energy-Cancel-the-Atlantic-Coast-Pipeline. The companies’ decision
came after we vacated several decisions of state and federal agencies approving the
project. See, e.g., Friends of Buckingham v. State Air Pollution Control Bd., 947 F.3d 68(4th Cir. 2020) (vacating Virginia environmental regulator’s decision issuing permit to
construct Atlantic Coast Pipeline compressor station); Defs. of Wildlife v. U.S. Dep’t of
the Interior, 931 F.3d 339 (4th Cir. 2019) (vacating Fish and Wildlife Service’s
biological opinion for Atlantic Coast Pipeline); Sierra Club v. U.S. Dep’t of the Interior,
899 F.3d 260 (4th Cir. 2018) (vacating Fish and Wildlife Service’s and National Park
Service’s approval of Atlantic Coast Pipeline).
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“would be impractical due to a combination of constructability and safety challenges,
increased environmental impacts, increased length and footprint, increased cost, and
inability to serve the purposes of the [Pipeline] or the specific purpose of the route
alternative in question.” Id. at 819–20 (footnote omitted).
3.
FERC
In the meantime, FERC partially authorized MVP to use the “conventional bore
method” to cross under the bodies of water along the Pipeline’s projected route, including
the four streams in the Jefferson National Forest, pending FERC’s evaluation of the
potential environmental impact of that method.
4.
Renewed RODs
Ultimately, on January 11, 2021, the Forest Service, via the United States
Department of Agriculture’s Under Secretary for Natural Resources and Environment,
issued a second ROD approving the Pipeline. The renewed ROD adopted the Forest
Service’s environmental analysis in the supplemental EIS and again amended the
Jefferson Forest Plan by modifying 11 plan standards to accommodate the Pipeline and
limited the amendments only to the Pipeline. Petitioners sought review of the ROD in
this court the same day it was issued.
Three days later, on January 14, 2021, the Secretary of the Interior issued a ROD
granting the Pipeline a right of way in the Jefferson National Forest. The BLM’s
renewed ROD also adopted the supplemental EIS and again authorized a 30-year right of
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way and associated temporary use permits for the Pipeline’s proposed route through the
Jefferson National Forest. Petitioners also filed a petition for review of that decision in
this court on January 20, 2021. We consolidated the cases on appeal.
II.
“We may hold unlawful and set aside a federal agency action for certain specified
reasons, including whenever the challenged act is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” Sierra Club, Inc. v. U.S. Forest
Serv., 897 F.3d 582, 589–90 (4th Cir. 2018) (alteration and internal quotation marks
omitted); see 5 U.S.C. § 706(2).
An agency’s decision is arbitrary and capricious if the agency
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.
Id. at 590 (quoting Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 396 (4th Cir.
2014)). “[O]ur oversight [of agency action is] ‘highly deferential, with a presumption in
favor of finding the agency action valid,’ yet the arbitrary-and-capricious standard does
not ‘reduce judicial review to a rubber stamp of agency action.’” Friends of Back Bay v.
U.S. Army Corps of Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012) (quoting Ohio Valley Env’t
Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)).
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III.
Petitioners once again argue that the Forest Service and the BLM violated NEPA,
the NFMA, and the MLA in permitting MVP to construct the Pipeline in the Jefferson
National Forest. We address each of Petitioners’ arguments in turn.
A.
Predecisional Review
Petitioners first argue that the Forest Service violated its own regulations by
failing to undertake the administrative “predecisional review” process before authorizing
the Pipeline’s route through the Jefferson National Forest. On this point, we disagree
with Petitioners.
The predecisional review process effectually prohibits the Forest Service from
issuing a final decision on a matter without first offering an opportunity for eligible
parties to object to the draft ROD and responding to each objection in writing. See 36
C.F.R. §§ 218.7, 218.12. It applies to “proposed actions of the Forest Service concerning
projects and activities implementing [forest plans] documented with a [ROD].” Id.§ 218.1. The “reviewing officer” charged with responding to the objections is a Forest
Service or Department of Agriculture official with more authority than the official
responsible for making the decision. See id. §§ 218.3(a), 218.11. But, significantly,
“[p]rojects and activities proposed by the Secretary of Agriculture or the Under
Secretary, Natural Resources and Environment, are not subject to” the predecisional
review process. Id. § 218.13(b). This exception applies in this case.
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In an attempt to evade this exception to the predecisional process, Petitioners
assert that MVP, not the Under Secretary for Natural Resources and Environment,
“proposed” the Pipeline project. But Petitioners’ interpretation of the term “proposed” as
it is used in the exception is too narrow and ignores the broader regulatory scheme. The
regulations governing the predecisional review process make clear that a proposal, for
purposes of the exception, does not mean the application triggering action by the Forest
Service but, rather, how the Forest Service decides to act in response to that application.
The structure of the predecisional review process -- which essentially provides for
an additional level of scrutiny of a decision by an official of higher rank than the
decisionmaking official -- and the language of the regulation defining “reviewing officer”
presume that officers within the agency make proposals. 36 C.F.R. § 218.3(a). There is
no distinction based on the source of the project’s application. The Forest Service’s
internal guidance reinforces this interpretation: “A proposed action is a proposal by the
Forest Service to authorize, recommend, or implement an action to meet a specific
purpose and need. . . . When the Forest Service accepts an external proponent’s proposal
(like a powerline or ski resort) it becomes an Agency proposal to authorize the action.”
U.S. Forest Serv., FSH 1909.15 – National Environmental Policy Act Handbook, ch. 10,
§ 11.2 (2012), https://www.fs.fed.us/emc/nepa/nepa_procedures/index.shtml.
The Under Secretary for Natural Resources and Environment signed the ROD
amending the Jefferson Forest Plan to accommodate the Pipeline. The Under Secretary’s
approval “constitutes the final administrative determination of the U.S. Department of
Agriculture.” 36 C.F.R. § 218.13(b). Therefore, the proposal was not subject to the
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predecisional review process. See Project-Level Predecisional Administrative Review
Process, 77 Fed. Reg. 47,337, 47,341 (proposed Aug. 8, 2012) (to be codified at 36
C.F.R. pt. 218) (“[36 C.F.R. § 218.13(b)] identifies that projects and activities authorized
by the Secretary or Under Secretary of Agriculture are not subject to [the predecisional
review] procedures.”).
B.
Actual Sediment and Erosion Impacts
Next, Petitioners contend that the Forest Service and the BLM violated NEPA, the
NFMA, and the MLA by inadequately considering the Pipeline’s sediment and erosion
impacts. Specifically, Petitioners assert that 1) the sediment modeling MVP used in its
hydrological analyses relied on unsupported and implausible assumptions; 2) evidence of
the Pipeline’s actual impacts indicates the modeling is unreasonable, and the Forest
Service and the BLM did not address such evidence; and 3) the agencies failed to address
whether erosion and sedimentation caused by the Pipeline would violate water quality
standards. We agree with Petitioners only as to the second of these assertions.
The Forest Service and the BLM erroneously failed to account for real-world data
suggesting increased sedimentation along the Pipeline route. There is no evidence that
the agencies reviewed the USGS water quality monitoring data from the Roanoke River,
which may indicate a significant increase in sedimentation beyond that predicted in the
modeling used for the supplemental EIS. At the very least, the supplemental EIS should
have acknowledged this disparity and explained its impact on the agencies’ reliance on
the sedimentation data in the hydrological analyses.
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But the Forest Service and the BLM suggest that the USGS data is not useful to
their analysis for two reasons. First, they argue that the sediment modeling utilized in the
supplemental EIS is not designed for site-specific comparisons. This argument begs the
question -- how is the modeling useful to predict the Pipeline’s environmental impact if it
does not somehow reflect real-world data and scenarios demonstrating that impact?
Second, the agencies assert that Petitioners have not demonstrated how the USGS
data is “relevant to the choice among alternatives with different environmental effects,”
which is the key consideration for their NEPA cost-benefit analysis. 40 C.F.R.
§ 1502.22. But this is an improper effort to shift the agencies’ burden onto Petitioners.
The Forest Service and the BLM, not Petitioners, are charged with fully considering the
Pipeline’s potential environmental impact before approving it.
The same is true of the agencies’ argument that the USGS data should be
discounted because it derives from locations outside the Jefferson National Forest. The
Forest Service and the BLM suggest that the USGS data is unreliable because Petitioners
“do not suggest that the land use [in the areas outside the forest where the USGS
monitoring stations are located] is identical to the Forest sites,” nor do Petitioners account
for soil-loss mitigation measures or “the corresponding climactic conditions during the
stream-gauge measurements.” Resp’ts’ Br. at 28. Again, the Forest Service and the
BLM attempt to place the burden on Petitioners to demonstrate the similarities between
the areas outside and inside the forest, rather than recognizing MVP’s shortcomings.
There is no reason to think (and the agencies have provided none) that the factors that
could affect sedimentation in the four streams inside the forest that the Pipeline’s
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proposed route will cross will be any different inside the Jefferson National Forest than
outside it, such that data from nearby locations outside the forest would not reflect the
conditions within the forest.
By creating a false dichotomy between the impacts of construction inside and
outside the Jefferson National Forest, placing the burden on Petitioners to explain the
similarities between these two areas, and failing to address the USGS modeling that
occurred nearby in the Roanoke River, the Forest Service and the BLM “entirely failed to
consider an important aspect of the problem.” Sierra Club, Inc. v. U.S. Forest Serv., 897
F.3d 582, 590 (4th Cir. 2018) (quoting Defs. of Wildlife v. N.C. Dep’t of Transp., 762
F.3d 374, 396 (4th Cir. 2014)). Therefore, we remand for the agencies to consider the
USGS data and any other relevant information indicating that the modeling used in the
EIS may not be consistent with data about the actual impacts of the Pipeline and its
construction.
C.
Conventional Bore Method
Third, Petitioners argue that the Forest Service and the BLM violated NEPA by
approving the use of the conventional bore method to cross the four streams within the
Jefferson National Forest without first analyzing the method’s environmental effects.
Here again, we agree with Petitioners. “It would be one thing if the Forest Service had
adopted a new alternative that was actually within the range of previously considered
alternatives . . . . It is quite another thing to adopt a proposal that is configured
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differently . . . .” Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1292–93 (1st Cir. 1996).
The Forest Service and the BLM have done the latter here.
Although the supplemental EIS includes information about method, impact, safety,
and environmental concerns related to conventional boring, the agencies’ assent to
MVP’s use of conventional boring to construct the stream crossings is premature.
Because MVP originally planned to use dry-ditch open cutting and wet cutting to
construct the stream crossings, FERC’s initial EIS considered the environmental impact
of these methods. It did not extensively consider the conventional bore method because
no stream crossings were to be constructed using that method.
Since then, MVP received authorization from FERC to modify how it would
construct the stream crossings in the Jefferson National Forest. Specifically, FERC
conducted a cursory review of MVP’s request to switch to the conventional bore method
and, after “informally consult[ing]” with the Fish and Wildlife Service, concluded that
the change “is feasible and . . . will reduce [environmental] impacts on aquatic
resources.” J.A. 1200. However, FERC did not authorize MVP to construct any of the
stream crossings using the conventional bore method because at the time, the Forest
Service and the BLM had not yet approved the Pipeline’s crossing through the Jefferson
National Forest.
MVP has also requested to use the conventional bore method to construct other
stream crossings outside the Jefferson National Forest. In response, FERC issued a
notice indicating that it “will prepare an environmental document[] that will discuss the
environmental impacts of” the requested change in the construction method for the
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stream crossings. Mountain Valley Pipeline, LLC; Notice of Scoping Period and
Requesting Comments on Environmental Issues for the Proposed Amendment to the
Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline
Project, 86 Fed. Reg. 15,215, 15,215 (Mar. 22, 2021).
FERC characterizes MVP’s request to switch to the conventional bore method as a
request to amend the FERC Certificate for the Pipeline. Id. Without a FERC Certificate
authorizing it to do so, MVP cannot “engage in the transportation or sale of natural gas
. . . or undertake the construction or extension of any facilities therefor, or acquire or
operate any such facilities or extensions thereof.” 15 U.S.C. § 717f(c)(1)(A). Therefore,
it follows that MVP cannot construct the stream crossings outside the Jefferson National
Forest using the conventional bore method until FERC actually fully approves the
amendment to the FERC Certificate to authorize that method.
In this regard, although FERC has given notice that it will issue a document
assessing the environmental impacts of the change in the stream crossing construction
method, it has not yet done so. Despite FERC’s approval of the use of the conventional
bore method for the stream crossings inside the Jefferson National Forest, the Forest
Service and the BLM, in deciding whether to approve the Pipeline’s route over those
lands, would surely benefit from FERC’s environmental analysis of the use of the
conventional bore method for other stream crossings outside the Jefferson National
Forest. As a result, the Forest Service and the BLM improperly approved the use of the
conventional bore method for the four streams in the Jefferson National Forest without
first considering FERC’s analysis.
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D.
Alternative Routes
Petitioners also argue that the Forest Service and the BLM insufficiently evaluated
alternative routes for the Pipeline that do not pass through national forests, in violation of
the MLA. We reject this argument for essentially the same reason we rejected it in the
prior iteration of this case. See Sierra Club, 897 F.3d at 599–600. The supplemental EIS
amply demonstrates that the agencies did, in fact, consider alternative routes but
concluded that the environmental impacts would simply be shifted to other lands and the
increased length of the Pipeline’s route would affect more acreage, incorporate additional
privately owned parcels, and increase the number of residences in close proximity to the
Pipeline. Therefore, the record reveals that the BLM and the Forest Service complied
with their obligations to assess alternative routes.
E.
Increased Collocation of Rights of Way
Relatedly, Petitioners assert that the BLM violated the MLA because it did not
demonstrate that route alternatives that would increase collocation within the Jefferson
National Forest were impractical. This argument likewise fails.
Pipeline routes crossing national forest lands must indeed be collocated with
existing rights of way “to the extent practical.” 30 U.S.C. § 185(p). But the BLM’s
interpretation of this standard is reasonable, and its framework for evaluating whether
collocation is “practical” is sound.
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Because neither the MLA nor its accompanying regulations define the meaning of
“practical” as it is used in this provision, the BLM has interpreted it to mean “the
suitability of a route alternative for achieving [the project’s] purpose” -- here,
“construct[ing] a pipeline to deliver natural gas from the [Pipeline’s] beginning point to
its endpoint, via its mid-route delivery points, in a safe, environmentally responsible, and
cost-effective manner.” J.A. 806. The BLM justified this interpretation by considering
the term’s common usage and legal definition, the MLA’s implementing regulations, 7 the
only decision applying the term, 8 and interpretations of the term “practicable” in other
environmental regulations. 9 The BLM also enumerated and explained six factors for
7
Specifically, the supplemental EIS reasons, “The BLM’s regulations note that
one of the objectives of the BLM’s pipeline [right of way] program is to ‘[p]romote[] the
use of rights-of-way in common considering engineering and technological
compatibility,’ and that the use of [rights of way] in common may be required ‘where
safety and other considerations allow.’” J.A. 805 (quoting 43 C.F.R. §§ 2881.2(c),
2882.10(b)).
8
Wyo. Indep. Producers Ass’n, 133 IBLA 65, 82 (1995).
9
Citing 40 C.F.R. §§ 230.3(l) and 230.10(a), the supplemental EIS states, “[A]
regulation issued to implement section 404 of the Clean Water Act prohibits the issuance
of a . . . permit ‘if there is a practicable alternative to the proposed discharge’ that is
environmentally preferable, and defines ‘practicable’ as including ‘consideration [of]
cost, existing technology, and logistics in light of overall project purposes.’” J.A. 806.
The supplemental EIS continues, “In reviewing decisions made under this regulation by
the U.S. Army Corps of Engineers . . . courts have deferred to the agency’s practicability
determinations, and upheld its consideration of factors including cost, construction
delays, logistical feasibility, and ‘the objectives of the applicant’s project.’” Id. (citing
Friends of Santa Clara River v. U.S Army Corps of Eng’rs, 887 F.3d 906, 912, 921–22
(9th Cir. 2018); Friends of the Earth v. Hintz, 800 F.2d 822, 833–34 (9th Cir. 1986);
Nat’l Parks Conservation Ass’n v. Semonite, 311 F. Supp. 3d 350, 377–78 (D.D.C. 2018),
rev’d, 916 F.3d 1075 (D.C. Cir. 2019)).
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assessing “practicality”: 1) “construction challenges and potential safety hazards”; 2)
“environmental consequences”; 3) “increase[s] in the pipeline’s length and footprint”; 4)
“the ability . . . to serve MVP’s mid-route delivery points”; 5) “additional costs”; and 6)
“the likelihood that the route would achieve any specific purpose.” Id. at 806–07.
At its core, Petitioners’ assertion that the BLM failed to apply the test it developed
to the Pipeline boils down to no more than their disagreement with the outcome of the
BLM’s analysis. But, for the reasons outlined, we conclude the BLM did not err when
assessing the Pipeline route’s collocation with existing rights of way in the Jefferson
National Forest.
F.
2012 Planning Rule
Finally, Petitioners argue that the Forest Service again failed to apply its 2012
Planning Rule’s directly related substantive requirements within the scope and scale of
the amendments to the Jefferson Forest Plan to accommodate the Pipeline, as the 2016
Revised Rule requires. Petitioners assert that the amendments do not actually comply
with any of the corresponding substantive requirements set forth in the 2012 Planning
Rule and that the Forest Service applied an incorrect legal standard when it determined
that the amendments did comply with the substantive requirements. We agree.
We previously concluded that the 2012 Planning Rule’s soil and riparian resources
requirements apply to the proposed amendments for the Pipeline. Sierra Club, 897 F.3d
at 603. In its renewed ROD, the Forest Service acknowledges that the amendments are
“directly related” to these requirements, but it maintains that it has complied with the
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requirements because it “applied [them] to provide protection to resources without
substantial lessening of protections for these resources.” J.A. 582.
This conclusion is not sound. First, the 2012 Planning Rule does not demand that
the amendments protect forest resources without substantial lessening of protections.
Rather, a forest plan “must include . . . components . . . to maintain or restore the
ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan
area.” 36 C.F.R. § 219.8(a)(1) (emphasis supplied). Because the Forest Service did not
sufficiently consider the Pipeline’s actual sediment and erosion impacts, as we have
already explained, the amendments to the Jefferson Forest Plan may not “maintain” soil
and riparian resources within the scope of the 2012 Planning Rule. And because the
Forest Service does not have a clear indication from FERC about the environmental
impacts of the use of the conventional bore method to cross the four streams within the
Jefferson National Forest, it is unclear whether the amendments to the Jefferson Forest
Plan for the Pipeline will even “maintain” the forest’s resources, as the 2012 Planning
Rule intended.
Further, the Forest Service cannot rely on the notion that because the Pipeline will
affect only a minimal fraction of the entire Jefferson National Forest, application of the
existing forest plan (i.e., without Pipeline-related amendments) outside this area will
continue to provide adequate protections. “If the Forest Service could circumvent the
requirements of the 2012 Planning Rule simply by passing project-specific amendments
on an ad hoc basis . . . the substantive requirements in the 2012 Planning Rule . . . would
be meaningless.” Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150, 164 (4th
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Cir. 2018), rev’d and remanded on other grounds, 140 S. Ct. 1837 (2020). In any event,
the Forest Service has not provided an analysis of whether application of the existing
Jefferson Forest Plan is adequately protecting these resources elsewhere in the Jefferson
National Forest.
As a result, we are compelled to once again remand so that the Forest Service can
properly apply the 2012 Planning Rule’s soil and riparian resources requirements to the
Pipeline amendments.
IV.
Conclusion
In sum, we conclude that the Forest Service and the BLM 1) inadequately
considered the actual sedimentation and erosion impacts of the Pipeline; 2) prematurely
authorized the use of the conventional bore method to construct stream crossings; and 3)
failed to comply with the Forest Service’s 2012 Planning Rule. Therefore, we grant the
petitions for review as to those errors; deny the petitions with regard to Petitioners’
remaining arguments about the predecisional review process, alternative routes, and
increased collocation; vacate the decisions of the Forest Service and the BLM; and
remand this matter to the agencies for further proceedings consistent with this opinion.
PETITIONS FOR REVIEW GRANTED IN PART AND DENIED IN PART,
VACATED AND REMANDED
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