Court Tosses Controversial Pipeline Permits, Rules Forest Service Failed to 'Speak for the Trees'

By John Murawski, The News & Observer

14 December 18

 

federal appeals has thrown out another key permit for the Atlantic Coast Pipeline, increasing the likelihood that work on the 604-mile multi-state project could be held up until this summer if not longer.

The appeals court in Richmond on Thursday invalidated a federal permit for the planned pipeline to cross 21 miles of national forest in Virginia, including a section of the Appalachian Trail. The court said that the U.S. Forest Service ignored federal law and its own agency rules in granting the permit, which will clear a 125-swath of habitat during construction and leave a 50-foot wide lane in perpetuity for maintenance.

The same court last week rejected a permit by the U.S. Fish and Wildlife Service to cut trees and grade land in sensitive habitats that are home to four endangered wildlife species.

The consortium building the $7 billion pipeline, led by Charlotte-based Duke Energy and Richmond-based Dominion Energy, vowed to appeal the ruling and fight to get it reversed. The companies are planning to bring natural gas from fracking fields in Pennsylvania and West Virginia into North Carolina.

They contend the Atlantic Coast Pipeline is “the most thoroughly reviewed infrastructure project in the history of our region,” and noted that 56 oil and gas pipelines have operated across the Appalachian Trail.

They contend that cheap and abundant natural gas will keep down energy costs for decades and will provide a cleaner-burning alternative to coal-burning power plants, which are being phased out.

“If allowed to stand, this decision will severely harm consumers and do great damage to our economy and energy security,” pipeline spokesman Aaron Ruby said in an emailed statement. “Public utilities are depending on this infrastructure to meet the basic energy needs of millions of people and businesses in our region.”

Ruby said it was premature to speculate on how many extra miles of pipeline would have to be built to get around the George Washington National Forest and the Monongahela National Forest. But Nathan Matthews, a lawyer for the Sierra Club, said the workaround could be 50 to 100 miles, assuming new paths were approved by state and federal agencies.

In its ruling Thursday, the U.S. Court of Appeals for the Fourth Circuit quoted the Dr. Seuss classic, “The Lorax,” to summarize its decision. The court noted that the U.S. Forest Service outlined a litany of environmental concerns with the pipeline’s crossing of national forests, then abruptly did an about-face, dropped its objections, and approved the energy project.

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,’ ” the court wrote. “A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.”

The court said, for example, that Forest Service technical staff painted a “grim picture” of the pipeline’s effects on erosion, sedimentation and on threatened and endangered species, including the loss of potential roosting habitat for the little brown bat. But the agency disregarded the warnings and approved two separate permits, in November 2017 and January 2018.

The court ruling was the result of a legal challenge to the permits filed by Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia Inc.

In its 60-page ruling, the court highlighted a number of legal and procedural deficiencies in the permit, but singled out one item in particular for censure.

“Perhaps nothing demonstrates the dangers of the Forest Service’s insufficient analysis of landslide risks clearer than the FEIS’s [Final Environmental Impact Statement’s] use of the Columbia Gas Transmission pipeline as an example of an existing pipeline in the Appalachian Mountains that safely crosses karst (rock) terrain,” the court said.

“Significantly, during the briefing of this case, a landslide in Marshall County, West Virginia, caused the Columbia pipeline — highlighted by the Forest Service for its safety and stability — to rupture and explode.”