Law School Case Brief
Cowpasture River Pres. Ass'n v. Forest Serv. - 911 F.3d 150 (4th Cir. 2018)
Pursuant to the National Environmental Policy Act (NEPA), when a federal agency proposes to take a major Federal action significantly affecting the quality of the human environment, the agency must prepare a detailed environmental impact statement (EIS) describing the likely environmental effects, adverse environmental effects that cannot be avoided, and potential alternatives to the proposal.
The Atlantic Coast Pipeline (ACP) is a proposed 604.5 mile, 42-inch diameter natural gas pipeline that would stretch from West Virginia to North Carolina. The ACP route approved by the Federal Energy Regulatory Commission (FERC), and for which the Forest Service issued a Special Use Permit, and a Record of Decision. The right of way challenged in this case, crosses 21 miles of national forest land (about 16 miles in the George Washington National Forest (GWNF) and five miles in the Monongahela National Forest (MNF) and crosses the Appalachian National Scenic Trail (ANST) in the GWNF. Construction would involve clearing trees and other vegetation from a 125-foot right of way (reduced to 75 feet in wetlands) through the national forests, digging a trench to bury the pipeline, and blasting and flattening ridgelines in mountainous terrains. Following construction, the project requires maintaining a 50-foot right of way (reduced to 30 feet in wetlands) through the GWNF and MNF for the life of the pipeline.
Did the United States Forest Service (USFS) comply with the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Mineral Leasing Act in issuing a Special Use Permit and Record of Decision authorizing Atlantic Coast Pipeline developer to construct the Atlantic Coast Pipeline?
The USFS's decisions authorizing a developer to construct a gas pipeline through parts of the GWNF and the MNF violated the National Forest Management Act by failing to analyze whether the substantive requirements of the 2012 Forest Planning Rule (including soil and soil productivity, water resources, riparian areas, federally listed species, 36 C.F.R. §§ 219.8, 219.10, and 219.9) were related to the forest plan amendments. USFS's finding that the amendments would not have substantial adverse effects was arbitrary and capricious. USFS failed to independently review the FERC's environmental impact statement before adopting it; thus, the USFS lacked authority to grant a right of way across the ANST, which was part of the National Park System.
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