Win for Environmental Advocates from Fourth Circuit on USFS Challenge

UPDATE: Attorneys for the plaintiffs filed a letter with FERC Tuesday, July 31 informing the agency that, as a key condition in MVP’s Certification is no longer satisfied due to the court ruling, the Commission must take action to stop all construction activity on the route.

“Because these mandatory federal authorizations are now lacking, FERC must not allow pipeline construction to continue, not only within the Jefferson National Forest but anywhere along the pipeline route,” the letter read.

Attorneys stated that a work stoppage along the route is necessary to prevent excessive damage in the event of a route change. This is based on the Court’s ruling that the Bureau of Land Management did not adequately consider co-location of the pipeline with other projects. Additionally, it is possible that further evaluation of the project and the environmental conditions through which the company intends to construct will result in the agencies’ decision that MVP cannot construct in the Jefferson National Forest at all.

“If Mountain Valley is allowed to continue construction up to the Jefferson National Forest boundary, this runs the risk that sections of the pipeline that will have been already constructed will need to be moved, adding unnecessary expense and environmental impact,” the letter read. “Nor can Mountain Valley be permitted to inappropriately influence BLM’s “practicality” inquiry by completing construction up to the Jefferson National Forest boundary and arguing that this complete construction renders alternative routes impractical.”

As a result, the attorneys argue that FERC must order a stop to all work on the project until the Bureau of Land Management and the U.S. Forest Service “complete their analyses on remand.”

Attached to the letter was the Court’s ruling on the case. The full letter can be found below with other related documents and statements.

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The US Fourth Circuit Court of Appeals ruled unanimously Friday, July 27 in favor of environmental groups in a legal challenge to the US Forest Service and Bureau of Land Management permits granted to the Mountain Valley Pipeline.

Petitioners in the case were Sierra Club, Appalachian Voices, Wild Virginia, The Wilderness Society, Preserve Craig and Save Monroe. Cherokee Forest Voices, The Clinch Coalition, Georgia Forestwatch, and Mountaintrue filed as Amici Supporting Petitioners.

Summary of the Court’s Opinion

Chief Judge Roger Gregory and Judges William Traxler and Stephanie Thacker, the last of whom wrote the Court’s opinion, unanimously upheld the following of the petitioners’ arguments:

  1. The US Forest Service decision to adopt the Federal Energy Regulatory Commission Final Environmental Impact Statement was arbitrary and capricious because aspects of the decision — including the failure of the agency to “articulate[] a rational connection between the facts found and the choice made” with the adoption of estimates for sediment loads and erosion control efficiencies supplied by MVP after disputing the estimates with no documented justification for the — failed to comply with the National Environmental Policy Act (NEPA).
  2. The US Forest Service amendments to the Forest Plan for the Jefferson National Forest failed to consider the purpose of the amendments made, and rather only considered the effects; thus, the amendments to the Forest Plan that allowed the US Forest Service to approve the crossing of the MVP through the Jefferson National Forest violated the National Forest Management Act (NFMA).
  3. The Bureau of Land Management failed demonstrate that alternatives to the proposed MVP route that would “make greater use of existing right-of-ways were impractical,” and thus did not fulfill its duty under the Mineral Leasing Act (MLA), which has a higher and more specific bar for analysis than NEPA.

As a result, the court vacated and remanded the issued permits back to the US Forest Service and Bureau of Land Management.

MVP’s proposed project would be the largest pipeline of its kind to cross the Jefferson National Forest,” Thacker wrote in the opinion. “American citizens understandably place their trust in the Forest Service to protect and preserve this country’s forests, and they deserve more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forestlands. Citizens also trust in the Bureau of Land Management to prevent undue degradation to public lands by following the dictates of the MLA.”

Statement from Roberta Bondurant, Co-Chair for Protect Our Water Heritage Rights and Representative of Preserve Bent Mountain

“The Fourth Circuit appellate judges heard the concerns regarding the faulty process of the US Forest Service and the Bureau of Land Management in permitting the Mountain Valley Pipeline to cross public lands, and ruled accordingly in favor of environmental advocacy groups. We are grateful to attorneys, activists, the public, and impacted landowners for their determined challenge to agency permits such as the Forest Service and Bureau of Land Management permits. We proceed with guarded optimism as we wait for further judicial decisions, including legal challenges to the Virginia DEQ permitting.

We will vigilantly monitor continued construction activity. We continue to support agency action such as a Stop Work Order from Virginia’s State Water Control Board, consistent with the wisdom of the Fourth Circuit Court of Appeals in protecting our vital resources.

We encourage landowners in affected communities to remain resolute in their protection of our land, water, and private property rights and the wellness of our region. We will continue in dogged protection of our great places and even better people of Virginia and West Virginia.”

Statement from Maury Johnson, Executive Committee Member for Protect Our Water Heritage Rights

“Save Monroe, Preserve Craig and the Wilderness Society were joined by the Sierra Club in contesting the USFS Permit allowing the MVP crossing of Peters Mountain, Jefferson National Forest and the Appalachian Trail.  As a Standing Declarant in this motion, I believe that the Fourth Circuit of Appeals in Richmond, Va saw clearly the USFS acted arbitrarily and did not follow existing law and policy.  I am very relieved that MVP cannot destroy the Appalachian Trail and our beloved Peters Mountain. I feel that when other cases are heard by the Courts we will win these as well and hopefully MVP will just be a bad nightmare.”

Statement from Jim Gore, Member of the Board for Save Monroe

“The 4th Circuit has validated what we have been saying to the Forest Service for almost four years. We are already seeing ongoing degradation of water resources due to erosion and sedimentation caused by MVP construction on our steep slopes and ridges. Save Monroe is gratified that the Court sees it as we do and has acted to protect the forest and its irreplaceable water.”

Statement from Bill Wolf, Co-Chair of Preserve Craig

“The quality of life in our community has already been seriously harmed by MVP and the Forest Service and BLM decisions. If MVP were a responsible company, it would respect this decision and halt all construction activity today.”

Related Documents and Statements

Fourth Circuit Court of Appeals Judgement on USFS Case, Issued 7/27/18

Fourth Circuit Court of Appeals Opinion on USFS Case, Issued 7/27/18

Fourth Circuit Court of Appeals Supporting Documents on USFS Case, Issued 7/27/18

Press Release from Plaintiffs

Sierra Club et al. Letter to FERC, Filed 7/31/18

Media Coverage

Appeals Court Sides With Environmentalists In Pipeline Case [WVTF]

BREAKING: 4th U.S. Circuit Court of Appeals Unanimously Vacates BLM, U.S. Forest Service Permits Allowing Mountain Valley Pipeline to Cut Through Jefferson National Forest [Blue Virginia]

U.S. court vacates two permits for EQT Mountain Valley natgas pipe [CNBC]

Va. appeals court sides with environmentalists in national forest pipeline case [StarTribune]

Federal appeals court delivers blow to Mountain Valley Pipeline [Roanoke Times]

Federal judges in Va. revoke permit for pipeline, saying impact on national forest not fully reviewed [Washington Post]