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Sierra Club, Inc. v. United States Forest Serv.

United States Court of Appeals for the Fourth Circuit

May 8, 2018, Argued; July 27, 2018, Decided

No. 17-2399, No. 18-1012, No. 18-1019, No. 18-1036

Opinion

 [*587]  THACKER, Circuit Judge:

In this 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 [**3]  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").

After 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

MVP 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 [**4]  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, 107.1

 [*588]  On 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 [**5]  do not challenge FERC's issuance of the Certificate in this case.

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897 F.3d 582 *; 2018 U.S. App. LEXIS 20915 **; 48 ELR 20134; 86 ERC (BNA) 1997

SIERRA CLUB, INC.; APPALACHIAN VOICES; WILD VIRGINIA, INC., Petitioners, v. 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, v. UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor.SIERRA CLUB, INC.; APPALACHIAN VOICES; WILD VIRGINIA, INC., Petitioners, v. 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, v. 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.

Subsequent History: On rehearing at, Clarified by Sierra Club, Inc. v. United States Forest Serv., 739 Fed. Appx. 185, 2018 U.S. App. LEXIS 28554 (4th Cir., Oct. 10, 2018)

Prior History:  [**1] On Petition for Review of a Decision of the United States Forest Service.

On Petition for Review of a Decision of the United States Forest Service.

On Petition for Review of a Decision of the Bureau of Land Management. (VA-ES-058143; WV-ES-058142).

On Petition for Review of a Decision of the Bureau of Land Management. (VA-ES-058143; WV-ES-058142).

Atl. Coast Pipeline, LLC, 161 F.E.R.C. P61042, 2017 FERC LEXIS 1718 (F.E.R.C., Oct. 13, 2017)

Disposition: PETITIONS FOR REVIEW GRANTED, VACATED AND REMANDED.

CORE TERMS

Forest, sediment, pipeline, Planning, right of way, environmental, soil, Hydrologic, impacts, national forest, effects, regulations, second draft, supplied, agencies, comments, containment, percent, streams, riparian, interior, measures, erosion, pipeline project, siting, proposed route, threshold, route, substantive requirements, existing right

Business & Corporate Compliance, Environmental Law, Assessment & Information Access, Environmental Impact Statements, Environmental Law, Natural Resources & Public Lands, Federal Land Management, Forest Management, Administrative Law, Judicial Review, Standards of Review, Abuse of Discretion, Arbitrary & Capricious Standard of Review, National Environmental Policy Act, Administrative Proceedings & Litigation, Judicial Review, Energy & Utilities Law, Natural Gas Industry, Natural Gas Act, Deference to Agency Statutory Interpretation, Energy & Utilities Law, Mining Industry, Mineral Leasing Act, Pipelines & Transportation, Pipelines, Standards of Review, Easements & Rights of Way