Beruflich Dokumente
Kultur Dokumente
No. 18-1144
v.
and
Pursuant to Federal Rule of Appellate Procedure 18(a) and Local Rule 27(e),
Petitioners seek a stay of Forest Service authorizations for the Atlantic Coast
Pipeline, which allows the clearing of trees, blasting, and trenching through miles
of national forests across steep, mountainous terrain of western Virginia and West
Virginia.
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Clearcutting for the pipeline began in March 2018, before stopping that
those restrictions expired weeks ago, most work on the pipeline remained halted
under a “stop work order” issued by the Federal Energy Regulatory Commission
permits by the Fish and Wildlife Service (“FWS”) and National Park Service
authorizations posted to FERC’s docket. 4 Hours later, FERC lifted the stop work
1
Construction continued along cleared portions of the pipeline, primarily in West
Virginia. See Atlantic’s Work Area Stabilization Plan (Aug. 14, 2018) (“ACP
Stabilization Plan”), FERC No. 20180815-5006, Ex. 1. FERC eLibrary Accession
Numbers are provided as “FERC No.”
2
Although the Court vacated the FWS decision on May 15, FERC did not halt
work until the full opinion issued on August 6, 2018, which invalidated the NPS
right-of-way decision. FERC Order (Aug. 10, 2018), FERC No. 20180810-4011,
Ex. 2.
3
See Letter from T. Turpin to M. Bley (Sept. 17, 2018), Ex. 3.
4
FERC Nos. 20180917-3001 (FWS), 20180917-5034 (NPS).
5
See Ex. 3.
2
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Pursuant to Local Rule 27(a), Counsel for Petitioners informed the other
parties of the intent to file this motion. Respondents and Intervenor oppose the
motion.
I. BACKGROUND
The 600-mile Atlantic Coast Pipeline (“ACP”) will carve through the steep
203 [JA0769]. On the national forests, the pipeline will impact over 400 acres, cut
Construction will blast ridgelines to create flat work space for the pipeline. Final
displace massive amounts of soil, FEIS, [JA1608], and overall cross more than
1,500 waterbodies. FEIS, [JA1629, 1655]. National forest lands include sensitive
“karst” terrain, a type of soluble bedrock geology prone to erosion, voids, caves,
FERC authorized the ACP under the Natural Gas Act on October 13, 2017.
See FERC Certificate [JA0690]. The project requires independent approvals from
On June 16, 2016, Atlantic applied for a special use permit to construct and
operate the pipeline on national forest lands. ROD, [JA0010]. Construction will
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cause such significant adverse impacts that it cannot comply with standards
(designed to protect against activities that pose the greatest threat to natural
resources) that govern management of the GWNF and MNF. Instead of requiring
compliance with these standards, the Forest Service waived them in a Record of
Decision (“ROD”) issued November 17, 2017, and a related Special Use Permit
(“SUP”) issued January 23, 2018. Petition for Rev., Ex. A (ECF No. 4-2).
March 15 and the MNF on April 1 under conditions in the ROD and FERC’s
logging until after August 31, 2018.10 Construction continued on portions of the
pipeline where trees had already been felled. See ACP Stabilization Plan, Ex. 1;
4
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pipeline, following this Court’s decision vacating the NPS authorization and
providing its full opinion on vacatur of the FWS permit, which occurred months
earlier. See Ex. 2. In subsequent filings to FERC, Atlantic reported portions of the
right-of-way had been clearcut in the MNF and the GWNF, and felled trees were
left within the right-of-way. See Ex. 1.11 Atlantic represents it was, until August
10, actively constructing the pipeline in locations near the MNF. See id.; Weekly
Status Report (Aug. 10, 2018) (grading and installation of erosion controls in
spread 3A)12; COM Plan, [JA0092] (showing 4.4 miles of MNF in spread 3A).
FERC has now authorized that work to continue by lifting its “stop work
order” pending only “written concurrence from the Forest Service” regarding
This case has been fully briefed and is scheduled for oral argument on
September 28, 2018. By that time, tree-clearing and construction will be well
11
For example, Atlantic’s stabilization plan indicated 59% of trees had been felled
in spread 3A, which includes the MNF and part of the GWNF. See Construction,
Operation, and Maintenance (“COM”) Plan, [JA0092]. As to federal lands, FERC
later clarified that while trees have been cut, “clearing of felled vegetation has not
yet occurred.” Letter from K. Bowman to M. Bley (Aug. 17, 2018), Ex. 8.
12
Ex. 9, FERC No. 20180810-5146.
5
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example, the Mountain Valley Pipeline (“MVP”) cut over 85% of the Jefferson
decision and special use authorization to construct the pipeline. The Forest Service
decision for MVP. See infra 7. Petitioners’ members recreate on and reside near
land that will be harmed by the ACP, and a stay will prevent irreparable injury to
Court’s review.
13
Compare MVP Weekly Status Report 2/24-3/02/18 (Mar. 13, 2018), FERC No.
20180313-5019 (showing 4.53% trees felled in spread G), with Weekly Status
Report 3/31-4/6/2018 (Apr. 17, 2018), FERC No. 20180417-520 (showing 87.32
% trees felled in spread G); see MVP Spread Map, FERC No. 20180405-5058.
MVP-related materials are attached as Ex. 10.
6
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II. ARGUMENT
Whether to issue a stay pending review turns on “consideration of four
factors: ‘(1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.’” Nken
v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770,
The Court reviews forest plan amendments authorized by the ROD under the
Administrative Procedure Act (“APA”). The Court “shall hold unlawful and set
706(2)(A).
The National Forest Management Act (“NFMA”) sets forth substantive and
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and resource management plans [“forest plans”] for units of the National Forest
System.” Id. § 1604(a). All activity on a national forest “shall be consistent with
The Forest Service can amend its forest plan so long as those amendments
The ACP is inconsistent with thirteen standards 14 adopted by the GWNF and
MNF forest plans. Rather than hold Atlantic to these standards, the Forest Service
To amend forest plans, the Forest Service must apply provisions of its
14
Petitioners’ motion relates to 9 of those standards. See infra n. 16.
15
The substantive requirements at §§ 219.8 through 219.11 are the heart of the
2012 Rule. The requirements aim to, for example, “maintain or
restore…ecological integrity,” “reduce soil erosion and sedimentation,” and
“maintain or restore...water quality.” See 36 C.F.R. § 219.8(a).
8
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§ 219.13(b)(5)(i). The agency must “look to both the purpose and effect of the
amendment, and if the substantive requirement at issue (i.e., soil, water) is based
upon or associated with either one, it is directly related.” Sierra Club v. Forest
Serv., 897 F.3d 582, 602 (4th Cir. 2018) (“Sierra Club”). Here, as in Sierra Club,
the Forest Service erred because it “failed to analyze the purpose of the
determined by the need to change the plan.” Id. at 603 (quotation and citations
“the ACP project would not be consistent with some Forest Plan standards related
this Court noted in Sierra Club, the 2012 Rule “sets forth substantive requirements
directly related to…: ‘soil and soil productivity’; ‘water resources’; [and] ‘the
ecological integrity of riparian areas.’ Therefore, there is no question that the 2012
Planning Rule requirements for soil, water, and riparian resources are directly
related to the purpose of the Forest Plan amendment.” Sierra Club, 897 F.3d at
16
The Forest Service amended standards MNF-SW06, SW07, and SW03; GWNF-
FW-5, FW-8, FW-16, FW-17, and 11-003 related to soils and riparian areas; and
standard MNF TE07 related to threatened and endangered species. ROD,
[JA0016-18].
9
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603. (internal citations omitted). The same is true of threatened and endangered
The ROD for the ACP is clear that for the nine standards at issue, the Forest
Service only “considered the…effects analysis for this amendment.” See [JA0039,
Service reasserted its theory that “a proposed amendment is directly related to any
of the substantive rule provisions of [the Rule] based on whether the amendment
for a specific resource or use.’” [JA0688]. Nowhere in the record did the agency
This is clear error. Ignoring the purpose prong “is an improper interpretation
the substantive provisions of the 2012 Rule are directly related to the purpose of
concluding otherwise.” Id. at 603. Compounding its error, the Forest Service
misapplied the effects test, ignoring that ACP will cause substantial adverse effects
219.13(b)(5)(i); see Pet’rs’ Br. 29-30, ECF No. 69; Pet’rs’ Reply 3-5, ECF No. 79.
10
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routes that would avoid blasting through national forests. The management plans
avoiding national forest land, but choose them. The GWNF plan allows “special
uses” like the ACP only if they are “[l]imit[ed] to needs that cannot be reasonably
“special uses of NFS lands – such as…utility corridors” only if they “cannot be
Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1059 (9th Cir.
that would avoid the national forests, based on two separate errors.
First, the Forest Service erred in adopting FERC’s FEIS and accepting the
flawed alternatives analysis with it, which rejected without study the only two
alternatives that avoid national forests and cross the Appalachian National Scenic
11
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recognized, the Forest Service “may adopt FERC’s EIS, but only if the EIS ‘meets
1506.3(a), and only if the agencies undertake ‘an independent review of the
statement’ and determine that their ‘comments and suggestions have been
impacts of alternatives, the Forest Service relied upon FERC’s untested assumption
that longer off-forest routes did “not offer a significant environmental advantage”
over a shorter route through the national forest. ROD, [JA0048]. But the Forest
Service knows shorter routes through sensitive resources can cause more
without study, because “[m]iles of line do not necessarily equate to severity of the
these comments. Without explanation, the Forest Service acquiesced in the ROD,
ROD analyzes only two alternatives – ACP’s preferred route through national
route that avoids national forests. This violates NFMA, too, as the Forest Service
12
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never determined whether the need for the pipeline could “be reasonably met” or
Second, all other off-forest routes were ignored because Atlantic was
determined to cross the Appalachian Trail on land managed by the Forest Service.
[JA3482]. NPS warned Atlantic it could not grant a right-of-way across the AT
under the authority of the Mineral Leasing Act (“MLA”), because the AT is a unit
of the National Park System. [JA3674]. The authority granted by that statute does
not apply to “lands in the National Park System.” 30 U.S.C. § 185(b)(1).18 As this
Court recently concluded, “the MLA and the National Park System simply operate
ANST was located on lands acquired and administered by the FS, which
significantly constrained the pipeline route and severely limits opportunities for
avoiding and/or minimizing the use of NFS lands.” FEIS, [JA1542] (emphasis
17
This Court recently reversed another pipeline authorization based on a similar
error. Sierra Club, 897 F.3d 582 (vacating BLM decision that rejected alternative
routes as “not offer[ing] significant environmental advantage,” without assessing if
routes were “impractical” as required by statute).
18
The Forest Service’s interpretation of the MLA as applied to the AT crossing is
entitled to no Chevron deference because it lacks “the procedural hallmarks of a
legislative-type determination”—it is not precedential or binding on third parties or
the agency. VWC, 899 F.3d at 288.
13
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added). Effectively, this required the pipeline to cross a specific “1.3 mile section
The Forest Service initially protested, insisting that the crossing of the AT
“be based on sound resource and compelling public interest determinations,” not
Forest Service reversed course and adopted Atlantic’s rationale, concluding “[a]
significant factor in siting the ACP was the location at which the pipeline would
cross the ANST.” ROD, [JA0034]. The Forest Service’s failure to consider off-
something the NPS could not: grant a right-of-way to cross the AT using the MLA.
exercise that authority. VWC, 899 F.3d at 289-90 (citation omitted). And the FEIS
and the Forest Service’s own comments are unequivocal: the entire AT, including
the segment across the GWNF, is “land[] in the National Park System.” Id.; see
The National Trails System Act, which created the Appalachian Trail, does
not transfer “any management responsibilities” among the many federal agencies
that manage national trails, 16 U.S.C. § 1246(a)(1)(A) (emphasis added), but for
each trail it designates a single agency to “administer” the trail. The Department of
14
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the Interior “administers” the entire AT, through NPS, rendering it a unit of the
agency charged with overall administration that defines whether land is in the
forest system or the park system. Compare 54 U.S.C. § 100501 (park system lands
is land in the National Park System, the MLA provides no authority for a pipeline
The Forest Service violated NEPA and its management plans by failing to
consider off-forest alternatives in its final decision. Its flawed interpretation of the
impacts entail.” Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir.
15
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Council, 490 U.S. 332, 352 (1989). On review, the Court must “ensure that the
agency has examined the relevant data and articulated a satisfactory explanation
for its action.” Defenders of Wildlife v. N.C.D.O.T., 762 F.3d 374, 396 (4th Cir.
2014) (alterations and quotations omitted). The Forest Service abdicated its duty
here.
high slippage potential, highly erodible soils, and the presence of high-value
that it would prevent landslides with its “best in class” (“BIC”) slope stabilization
The “challenge” with this approach, according to the Forest Service, was
Meeting Notes, [JA3320]. The Forest Service asked that Atlantic provide “site
specific stabilization designs” for ten representative locations at high risk for slope
failure. [JA3379]. At least six more times, the Forest Service reiterated that need
[JA2938-39] (Feb. 17, 2017 meeting), [JA2514-17] (Mar. 24, 2017 meeting),
[JA2304] (May 14, 2017 letter, referencing three other calls). Without site-specific
16
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data, the BIC program provided for nothing more than “selecting from a basket of
controls while in the field,” an “approach” that “the agency is not comfortable
with.” Feb. 2017 Meeting Notes, [JA2939]; see Neighbors of Cuddy Mountain v.
Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998) (listing possible measures
abandoned its position; the FEIS was issued in July 2017 with designs for only two
sites. [JA1608]. The Forest Service issued a single-page letter stating that the
its flip in position. [JA1881]; see also [JA1884] (internal email regarding this
letter, stating Forest Service staff were “having problems with the word
This acquiescence left the agency uninformed of the effects of the action and
falls short of NEPA’s hard look requirement. Even the FEIS concedes that “slope
instability/landslide risk reduction measures have not been completed or have not
been adopted.” [JA1615] (emphasis added). The analysis was so incomplete that
likelihood that their proposed design features and mitigation measures would
minimize the risk of landslides in the project area” at all. FEIS, [JA1616]
(emphasis added).
17
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to the COM plan,” which was itself was “missing and incomplete.” [JA3710–11].
That does not satisfy NEPA. Kern v. BLM, 284 F.3d 1062, 1072 (9th Cir. 2002)
enough that effects “will be analyzed later”); see Nat’l Audubon Soc’y, 422 F.3d at
189 (inadequate site visits “never developed into the careful investigation” of a
hard look).
were so wildly optimistic they invalidate its conclusions, as the Forest Service
recognized. Atlantic asserted that “erosion control devices” would “reduce erosion
The Forest Service knew the inflated predicted efficacy was flawed:
provide “literature references that apply to efficiencies in the field” and to use
18
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This same agency advised another pipeline company that 78% effectiveness
for erosion control was “a vast overestimate” in similar terrain, predicting instead
“equal to or less than 48% containment.” Sierra Club, 897 F.3d at 592.
The Forest Service identified still more major flaws that led it to conclude
Comments, [JA2369].
confirms the Forest Service’s skepticism was warranted. Even with the “stop work
order” in place, FERC approved some construction activities to proceed under the
activities that, in truth, resulted in additional ground disturbance, like trenching and
installing pipeline. See Ex. 1. In recent weeks, even before the hurricane storm
“steep terrain” and a “fast-moving weather system” for the breaches, but these are
exactly the conditions Atlantic asserts its BIC program can counteract. See
Weekly Status Reports (Aug. 31, 2018, at 7 and Sept. 7, 2018, at 3), Ex. 11 and Ex.
12.19 These failings at the earliest stages of construction show that risks to streams
19
FERC Nos. 20180831-5036, 20180907-5076; see also Weekly Status Report
(Sept. 14, 2018), describing “silt laden water” reaching the stream. FERC No.
20180914-5022.
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from constructing the pipeline through steep terrain exceed environmental impacts
Finally, neither the BE nor the FEIS provide a hard look at how increased
sedimentation would impact aquatic habitat and wildlife. Atlantic asserts that
calculation dividing the total sediment that it estimates will erode into a stream in a
year by the volume of water flowing through the stream in that time. Draft BE,
BE Comments, [JA2358].
contention that the predicted 200 to 800% increases in erosion will be “moderate,”
FEIS concedes that “water resource impacts from sedimentation are largely
20
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Despite these flaws, Atlantic failed to make changes requested by the Forest
flawed, issued Atlantic a SUP, and amended its forest plans to accommodate the
requirement.
who regularly use and enjoy the national forests for outdoor recreation, scenery,
hiking and camping. See Declarations, Pet’rs’ Add. 74–227 (ECF No. 70).
For example, Lynn Cameron regularly visits and recreates in the GWNF,
where she hikes, camps, leads groups on outings, and maintains a portion of the
Appalachian Trail. Cameron Decl. ¶ 2-3, 9, 14. Construction activities will have a
Brown’s Pond, a Special Biological Area, where Cameron enjoys observing rare
20
Atlantic submitted an updated sedimentation report in August 2017, after the
FEIS was issued. [JA0903]. This revised report does not correct the flaws the
Forest Service identified; for example, the revised report does not reassess erosion
in light of real-world conditions. Instead it merely adds language doubling down
on its assumption that controls will be implemented perfectly. [JA0908, 0930].
21
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plants. See id. ¶¶ 4, 13-14; FEIS at 4-162 [JA1829]. Impacts to the areas Cameron
Rick Webb and Gary Robinson are both avid fishermen who enjoy
recreational activities like hiking, birding, and fishing in the GWNF and MNF.
Webb Decl. ¶ 4, 11, 15; Robinson Decl. ¶ 16, 18, 23. Their enjoyment will be
harmed by construction of the ACP and its impact on trout streams, biodiversity
and rare communities, and permanent alteration to the landscape and scenic views.
Allen Johnson lives adjacent to MNF, only 650 yards from the pipeline
route. Johnson values the MNF for its stunning scenery, pristine streams, and
where he hikes and hunts numerous times yearly. Id. Construction will harm the
scenic, environmental, and recreational resources that Johnson values in the MNF.
Id. ¶¶ 7, 12.
irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987); Nat’l
harm. Sierra Club v. Clinton, 689 F. Supp. 2d 1123, 1145 (D. Minn. 2010)
22
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(finding irreparable harm where pipeline could harm water-bodies and aquatic
increased runoff and erosion); P.R. Conservation Found. v. Larson, 797 F. Supp.
1066, 1072 (D.P.R. 1992) (“No money damages would be sufficient to compensate
society for the permanent loss of one of our most precious natural resources,
biological diversity.”).
action constitutes irreparable injury. See Idaho Rivers United v. Probert, No. 3:16-
CV-00102-CWD, 2016 WL 2757690, at *17 (D. Idaho May 12, 2016) (finding
irreparable harm is likely to result from additional sedimentation risks that those
activities add to river system); High Sierra Hikers Ass’n v. Blackwell, 390 F.3d
630, 642 (9th Cir. 2004) (“[I]rreparable injury flows from the failure to evaluate
23
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and trenching through steep terrain, karst formations, and sensitive watersheds, far
outweighs any temporary, purely economic harm Atlantic might assert. See
League of Wilderness Defs. v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014)
(finding one-year delay resulting in economic harm to developer does not outweigh
from seasonal restrictions); Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562,
569 (9th Cir. 2000) (finding irreparable harm of cutting old-growth trees
injunctive relief. See Amoco, 480 U.S. at 545 (“If such injury is sufficiently
that unnecessarily uses national forest lands, fails to comply with plan standards,
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streams, and the resulting loss of ecological benefits they provide, constitute injury
III. CONCLUSION
Petitioners request that the Court stay implementation of the ROD and SUP
Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
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CERTIFICATE OF SERVICE
foregoing Motion for Stay on behalf of Petitioners with the Clerk of Court
using the CM/ECF System, which will automatically send e-mail notification
Avi Kupfer
Emily Polacheck
U.S. Department of Justice
P.O. Box 7415
Washington, D.C. 20044
Brooks Smith
Andrew Wortzel
Troutman Sanders LLP
1001 Haxall Point, Suite 1500
Richmond, VA 23219
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