2020 Environmental Real Estate IssuesOn December 13, 2018, the US Court of Appeals for the 4th Circuit vacated a US Forest Service (USFS) Special Use Permit (SUP) and Record of Decision (ROD) authorizing construction of the Atlantic Coast Pipeline (ACP).  The SUP and ROD would have allowed the pipeline to cross 21 miles through parts of national forests and across the Appalachian National Scenic Trail.

As a result of the decision in Cowpasture River Preservation Association v. Forest Service, the USFS must re-evaluate the SUP and ROD.  Also, work has effectively stopped on the project as the pipeline company seeks clarification to determine what work could proceed as a result of this ruling.

Changes in USFS Positions
The ACP is a proposed 604.5-mile natural gas pipeline from West Virginia to North Carolina.  Several environmental groups challenged the issuance of the SUP and ROD, claiming USFS’s actions did not comply with the National Forest Management Act, the National Environmental Policy Act, and the Mineral Leasing Act.

In vacating the SUP and ROD and sending the matter back to the USFS for re-evaluation, the Court identified changes in USFS positions during the permitting process that the Court concluded lacked adequate basis in the administrative record.  The timing strongly suggests the 2016 election was responsible for key changes in USFS positions.

The case is a reminder that administrative agencies generally must act in accordance with their stated positions, even those stated during a prior administration.

Record Did Not Support USFS’s Project-Specific Amendment
The Court was highly critical of several positions the USFS took.  For instance, to issue the SUP and ROD, the USFS had to issue a project-specific amendment to the plans for the national forests at issue.  The Court determined USFS was arbitrary and capricious in not fully analyzing the effects of the amendment.

The USFS argued it did not need to do such an extensive analysis because a project-specific amendment would rarely if ever cause a substantial effect on a national forest.  The Court criticized the USFS for taking this position regardless of the project’s size and for refusing to say at what point a single project would be large enough to warrant the more thorough analysis.

The Court further concluded the USFS’s determination that the “amendments would not have substantial adverse effects on the forests was arbitrary and capricious.”

For a copy of the opinion http://www.ca4.uscourts.gov/opinions/181144.P.pdf

Happy Holidays!

This will be the last alert until January 8, 2019.  Best to all for the holidays and 2019.