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Sierra Club, Inc. v. United States Forest Service

United States Court of Appeals, Fourth Circuit

July 27, 2018

SIERRA CLUB, INC.; APPALACHIAN VOICES; WILD VIRGINIA, INC., Petitioners,
v.
UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. CHEROKEE FOREST VOICES; THE CLINCH COALITION; GEORGIA FORESTWATCH; MOUNTAINTRUE, Amici Supporting Petitioner. THE WILDERNESS SOCIETY; PRESERVE CRAIG, INC.; SAVE MONROE, INC., Petitioners,
v.
UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. SIERRA CLUB, INC.; APPALACHIAN VOICES; WILD VIRGINIA, INC., Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF LAND MANAGEMENT; UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. CHEROKEE FOREST VOICES; THE CLINCH COALITION; GEORGIA FORESTWATCH; MOUNTAINTRUE, Amici Supporting Petitioner. THE WILDERNESS SOCIETY; PRESERVE CRAIG, INC.; SAVE MONROE, INC., Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF LAND MANAGEMENT; UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor.

          Argued: May 8, 2018

          On Petition for Review of a Decision of the Bureau of Land Management. (VA-ES-058143; WV-ES-058142)

         On Petition for Review of a Decision of the United States Forest Service.

         ARGUED:

          Nathan Matthews, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Oakland, California, for Petitioners.

          Kevin William McArdle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

          George Peter Sibley, III, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Intervenor.

         ON BRIEF:

          Elizabeth Fay Benson, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Oakland, California, for Petitioners Sierra Club, Wild Virginia, and Appalachian Voices.

          Tammy L. Belinsky, Copper Hill, Virginia, for Petitioners The Wilderness Society, Preserve Craig, and Save Monroe.

          Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, J. David Gunter II, Emily A. Polachek, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Henson, Haninah Levine, Office of the Solicitor, UNITED STATES DEPARTMENT OF THE INTERIOR, Washington, D.C.; Jay McWhirter, Sarah Kathmann, Office of the General Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE, Washington, D.C., for Respondents.

          Kevin S. Elliker, HUNTON ANDREWS KURTH LLP, Richmond, Virginia; Thomas C. Jensen, Washington, D.C., Murray D. Feldman, Boise, Idaho, Sandra A. Snodgrass, HOLLAND & HART LLP, Denver, Colorado, for Intervenor. J. Patrick Hunter, Austin D. Gerken, Jr., Amelia Y. Burnette, Asheville, North Carolina; Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Amici Curiae.

          Before GREGORY, Chief Judge, and TRAXLER, and THACKER, Circuit Judges.

          THACKER, CIRCUIT JUDGE:

         In this case, we address petitions seeking review of two federal agency decisions. The first is the Bureau of Land Management ("BLM")'s decision granting a right of way through federal land for construction and operation of a pipeline proposed by Mountain Valley Pipeline, LLC ("MVP"). The second is the United States Forest Service ("Forest Service")'s decision to amend the Jefferson National Forest Land Resource Management Plan to accommodate the right of way and pipeline construction. Sierra Club, Inc.; Appalachian Voices; Wild Virginia, Inc.; the Wilderness Society; Preserve Craig, Inc.; and Save Monroe, Inc. (collectively, "Petitioners") claim that by these decisions, the federal agencies violated the National Environmental Policy Act ("NEPA"), the Mineral Leasing Act ("MLA"), and the National Forest Management Act ("NFMA").

         After careful review, we conclude that aspects of the Forest Service's decision fail to comply with NEPA and the NFMA. As more fully explained below, we grant the petition challenging the Forest Service's decision and vacate that decision. We also conclude that the BLM failed to acknowledge its obligations under the MLA, and therefore, we also grant the petition challenging the BLM decision and vacate that decision. We remand to the respective agencies for further proceedings consistent with this opinion.

         I.

         A. The Pipeline Project and FERC

         MVP plans to construct, operate, and maintain approximately 303.5 miles of new underground, 42-inch diameter pipeline extending from Wetzel County, West Virginia, to Pittsylvania County, Virginia. The trench for the pipeline will be at least 54 inches wide and 5.5 to 9 feet deep. Construction will involve "remov[ing] trees, shrubs, brush, roots, and large rocks" and will initially require a 75-foot to 125-foot right of way for construction purposes, and a subsequent 50-foot right of way for at least 30 years to accommodate the pipeline's operation. J.A. 102-03, 107.[1]

         On October 13, 2017, the Federal Energy Regulatory Commission ("FERC") issued a Certificate of Public Convenience and Necessity for MVP's pipeline project ("Certificate"). Pursuant to the Natural Gas Act ("NGA"), a natural gas company is not permitted to undertake construction of a pipeline unless FERC first issues a Certificate authorizing such construction. See 15 U.S.C. § 717f(c)(1)(A). Before doing so, in most cases FERC "shall set the matter for hearing and shall give such reasonable notice of the hearing thereon to all interested persons as in its judgment may be necessary under [FERC's] rules and regulations." Id. § 717f(c)(1)(B). FERC also "shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require." Id. § 717f(e). Petitioners do not challenge FERC's issuance of the Certificate in this case.

         FERC was also required to issue an Environmental Impact Statement ("EIS").[2]Pursuant to NEPA, when a federal agency proposes to take a "major Federal action[] significantly affecting the quality of the human environment," the agency must prepare a detailed EIS describing the likely environmental effects, "adverse environmental effects which cannot be avoided," and potential alternatives to the proposal. 42 U.S.C. § 4332(C). Multiple agencies may cooperate to issue an EIS, but a "lead agency" is usually designated. 7 C.F.R. § 3407.11(a).[3] Where an interstate gas pipeline is involved, FERC acts as the lead NEPA agency. See 15 U.S.C. § 717n(b)(1); see also EarthReports, Inc. v. FERC, 828 F.3d 949, 953 (D.C. Cir. 2016). Here, the BLM and the Forest Service served as cooperating agencies and ultimately adopted the EIS.

         B. The Pipeline Project and the BLM

         It is not enough, however, that FERC issued a Certificate and an EIS. Because portions of the proposed pipeline route cross federally owned lands, MVP was also required to obtain rights of way and temporary use permits from the federal government to construct and operate the pipeline on those lands. The proposed right of way will cross land managed by two different agencies -- the Forest Service (3.6 miles or approximately 83 acres of the Jefferson National Forest in West Virginia and Virginia) and the Army Corps of Engineers (60 feet of the Weston and Gauley Bridge Turnpike Trail in Braxton County, West Virginia) -- which means the Department of the Interior is responsible for issuing rights of way and attendant permits. See 30 U.S.C. § 185(c)(2) ("Where the surface of the Federal lands involved is administered by . . . two or more Federal agencies, the Secretary [of the Interior] is authorized, after consultation with the agencies involved, to grant or renew rights-of-way or permits through the Federal lands involved."). In situations involving oil and gas pipeline rights of way, the Department of the Interior has delegated that authority to the BLM. See 36 C.F.R. § 251.54(b)(3). Importantly, the BLM must have the concurrence of the Forest Service and the Army Corps of Engineers in order to grant the necessary rights of way or permits. See 30 U.S.C. § 185(c)(2); 43 C.F.R. § 2884.26.[4]

         On December 20, 2017 -- upon review of the pertinent regulations, FERC's EIS, and public comments, and with the concurrence of the Forest Service and the Corps of Engineers -- the BLM issued a Rule of Decision ("ROD") granting a 30 year, 50-foot operational right of way and associated temporary use permits across 3.6 miles of the Jefferson National Forest. The BLM explicitly adopted the EIS and "prepared th[e] ROD based on information contained" therein. J.A. 574.

         C. The Pipeline Project and the Forest Service

         In addition to the Certificate, EIS, and right of way, MVP was also required to ensure compliance with a Land Resource Management Plan governing the Jefferson National Forest (the "Jefferson Forest Plan"). Pursuant to the NFMA, any plans, permits, or contracts for use of the Jefferson National Forest "shall be consistent with" the Jefferson Forest Plan. 16 U.S.C. § 1604(i). Here, it is undisputed that the pipeline project, as proposed, is not consistent with certain aspects of that plan. See J.A. 1280 (Forest Service ROD: "[A]mendment [to the Jefferson Forest Plan] is needed because the MVP Project cannot achieve several Forest Plan standards . . . ."). In such a case, the Forest Service has four options:

(1) modify the proposed project to make it consistent with the Forest Plan; (2) reject the proposal; (3) amend the Forest Plan so that the project would be consistent with the plan as amended; or (4) amend the Forest Plan simultaneously with the approval of the project so the project would be consistent with the plan as amended[.] [Such amendments] may be limited to apply only to the project.

J.A. 1271 (citing 36 C.F.R. § 219.15(c) (offering these four options if "a proposed project . . . would not be consistent with the application plan components")). In its ROD filed on December 1, 2017, the Forest Service decided it would select option four above and amend the Jefferson Forest Plan such that the MVP project would be consistent with that plan, but those amendments would only apply to the MVP project.

         D. The Pipeline Project and Review of Agency Decisions

         Petitioners seek review of the BLM and Forest Service RODs, and we possess jurisdiction to review them pursuant to the Administrative Procedure Act, see 5 U.S.C. §§ 701-06, and the NGA, see 15 U.S.C. § 717r(d)(1) ("The United States Court of Appeals for the circuit in which a [natural gas] facility . . . is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency . . . to issue, condition, or deny any permit, license, concurrence, or approval . . . required under Federal law . . . .").

         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.'" Friends of Back Bay v. U.S. Army Corps of Eng'rs, 681 F.3d 581, 586-87 (4th Cir. 2012) (quoting 5 U.S.C. § 706(2)(A)).

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.

Defs. of Wildlife v. N.C. Dep't of Transp., 762 F.3d 374, 396 (4th Cir. 2014) (quoting Motor Vehicle Mnfs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)).

         III.

         Petitioners raise a host of alleged violations of NEPA, the NFMA, and the MLA. We address each of these Acts and alleged violations in turn.

         A. The National Environmental Policy Act

         Congress enacted NEPA, in part, "to reduce or eliminate environmental damage." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004). "NEPA itself does not mandate particular results in order to accomplish these ends," but rather, "imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Id. at 756-57 (internal quotation marks omitted). NEPA's procedures require that agencies "take a hard look at environmental consequences" and "provide for broad dissemination of relevant environmental information." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation marks omitted).

         As explained above, FERC, as lead agency for natural gas pipeline projects, issued the EIS. Nonetheless, the Forest Service and the BLM may adopt FERC's EIS, but only if the EIS "meets the standards for an adequate statement" under pertinent regulations, 40 C.F.R. § 1506.3(a), and only if the agencies undertake "an independent review of the statement" and determine that their "comments and suggestions have been satisfied," id. § 1506.3(c); see also Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 445 & n.6 (4th Cir. 1996).

         1. Erosion and Sedimentation[5]

We begin with Petitioners' argument that the Forest Service violated NEPA by adopting and relying upon the EIS's analysis of erosion and sedimentation effects in the Jefferson National Forest. See, e.g., J.A. 1269 (Forest Service ROD "adopt[ing] the environmental analysis prepared by FERC"); id. at 1274 ("All design features and mitigation measures described in the []EIS that are applicable to N[ational] F[orest] S[ervice] land are incorporated by reference into [the ROD]."). Specifically, Petitioners contend that the "EIS is invalid[.] [It] fails to take the required hard look at impacts within Jefferson National Forest." Pet'rs' Br. 2.[6]

         a. The Hydrologic Report

         In assessing the impacts of erosion and sedimentation that would occur as a result of pipeline construction and operation in the Jefferson National Forest, FERC relied on a report entitled "Hydrologic Analysis of Sedimentation," see J.A. 234-36, which was prepared by MVP and attached to the EIS, see id. at 297-327 (Appendix O-3) (the "Hydrologic Report").

         There were three drafts of the Hydrologic Report. The first was completed on June 7, 2016, and released to the public on July 25, 2016. See J.A. 1311-26. Although that report observed that pipeline construction in the Jefferson National Forest "has potential to introduce temporary excess sediment into waterways . . . which may result in changes to water quality and potentially temporarily impact aquatic biota," id. at 1313, it also noted that the results in the analysis "represent[ed] a worst case scenario" because the first draft did not address erosion and sediment control measures or best management practices ("BMP"s) that would reduce sedimentation effects, id. at 1324. The Forest Service promptly filed comments to the first draft on August 16, 2016. One of its main concerns was that the draft "treats the [sedimentation] disturbance as a single-year occurrence." Id. at 1330. It asked MVP to "estimate when (if ever) sediment yields return to pre-disturbance levels." Id.

         MVP then submitted a second draft of the Hydrologic Report on March 3, 2017. See J.A. 297-327. It addressed the Forest Service's concern and explained that sediment yields would reach a "new sediment equilibrium" within approximately four to five years from the start of the project, which for "the majority of streams" would represent one percent or less increase in sedimentation load over baseline conditions. Id. at 323. But it also predicted a new sediment ...


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