SIERRA CLUB, INC.; APPALACHIAN VOICES; WILD VIRGINIA, INC., Petitioners,
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,
UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. SIERRA CLUB, INC.; APPALACHIAN VOICES; WILD VIRGINIA, INC., Petitioners,
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,
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
Petition for Review of a Decision of the Bureau of Land
Management. (VA-ES-058143; WV-ES-058142)
Petition for Review of a Decision of the United States Forest
Matthews, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Oakland,
California, for Petitioners.
William McArdle, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondents.
Peter Sibley, III, HUNTON ANDREWS KURTH LLP, Richmond,
Virginia, for Intervenor.
Elizabeth Fay Benson, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM,
Oakland, California, for Petitioners Sierra Club, Wild
Virginia, and Appalachian Voices.
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.,
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.
GREGORY, Chief Judge, and TRAXLER, and THACKER, Circuit
THACKER, CIRCUIT JUDGE:
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").
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.
The Pipeline Project and FERC
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.
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
was also required to issue an Environmental Impact Statement
("EIS").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). 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
The Pipeline Project and the BLM
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.
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.
The Pipeline Project and the Forest Service
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
The Pipeline Project and Review of Agency Decisions
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 . . . .").
"'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)).
raise a host of alleged violations of NEPA, the NFMA, and the
MLA. We address each of these Acts and alleged violations in
The National Environmental Policy Act
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).
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
Erosion and Sedimentation
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.
The Hydrologic Report
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").
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.
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 ...