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The court of appeals may hold unlawful and set aside a federal agency action for certain specified reasons, including whenever the challenged act is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
The Mountain Valley Pipeline, LLC (“MVP”) planned 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. In October 2017, the Federal Energy Regulatory Commission ("FERC") issued a Certificate of Public Convenience and Necessity for MVP's pipeline project ("Certificate") and an Environmental Impact Statement (“EIS”). However, due to the fact that portions of the proposed pipeline route would cross federally owned lands, MVP was also required to obtain rights of way and temporary use permits from the federal government to construct and operate the pipeline on those lands. In October 2017, the Bureau of Land Management (“BLM”) issued a Rule of Decision (“ROD”) granting a 30 year, 50-foot operational right of way and associated temporary use permits across 3.6 miles of the Jefferson National Forest. In addition to the Certificate, EIS, and right of way, MVP was also required to ensure compliance with a Land Resource Management Plan governing the Jefferson National Forest (the "Jefferson Forest Plan"). The proposed pipeline project, however, was not consistent with certain aspects of the Jefferson Forest Plan. Consequently, the Forest Service amended the Jefferson Forest Plan in order for the MVP project to be consistent with the plan; the amendments, however, would only apply to the MVP project. Petitioners sought review of the BLM and Forest Service RODs, asserting that the decisions violated the National Environmental Policy Act ("NEPA"), the Mineral Leasing Act ("MLA"), and the National Forest Management Act ("NFMA")
Should the court vacate the BLM and Forest Service RODs for being violative of the NEPA, MLA, and the NFMA?
The court held that pursuant to National Environmental Policy Act, 42 U.S.C.S. § 4332, the United States Forest Service acted arbitrarily and capriciously in adopting the sedimentation analysis in an Environmental Impact Statement (EIS) because it did not articulate a rational connection between the facts found and the choice it made to amend the Jefferson National Forest Land Resource Management Plan to accommodate a right of way for the construction and operation of a pipeline. Moreover, the court averred that the Bureau of Land Management violated its obligation under the Mineral Leasing Act (MLA) in its grant of the right of way across federal land because it failed to recognize the MLA's direction that the utilization of rights of way in common had to be required to the extent practical, 30 U.S.C. § 185(p). Accordingly, the court granted the petition for review, vacated the decisions, and remanded the matter.