Quoting a Dr. Seuss character, a panel of 4th U.S. Circuit Court of Appeals judges vacated a vital U.S. Forest Service permit developers of the Atlantic Coast Pipeline need to continue work on the 604-mile natural gas transmission line from West Virginia to North Carolina. The matter was returned to the Forest Service for further review.
Chief Judge Roger Gregory, James Wynn, and Stephanie Thacker issued the opinion Thursday, Dec. 13. Gregory was appointed by President George W. Bush, Wynn and Thacker by President Barack Obama.
In ordering the permitting process returned to the Forest Service for a review consistent with the panel’s findings, the judges’ decision quoted from the 1971 Dr. Seuss fable about the Lorax, a character with an environmentalist disposition.
“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,’ ” the order stated.
“A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources,” the order stated. “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.”
Aaron Ruby, spokesman for the pipeline coalition of Virginia-based Dominion Energy, Southern Company Gas, Duke Energy, and Duke affiliate Piedmont Natural Gas, said the energy companies will immediately appeal the decision to the full 4th Circuit.
About 195 miles of the $6.5-billion pipeline would traverse eight North Carolina counties, from the southeastern Virginia border to just south of Lumberton. The pipeline is embroiled in political controversy over whether Gov. Roy Cooper coerced pipeline developers to pay extra money to get a state permit.
“We strongly disagree with the court’s ruling,” Ruby said in a news release. “With this decision, the 4th Circuit has now undermined the judgment of the dedicated, career professionals at nearly every federal agency that has reviewed this project.”
The U.S. Department of Interior, U.S. Department of Agriculture, National Park Service, and Forest Service had agreed the Forest Service can approve the pipeline’s crossing of the Appalachian Trail. Several environmental groups challenged the Forest Service permit.
Ruby noted 56 other oil and gas pipelines have operated across the Appalachian Trail for decades under Democratic and Republican administrations. Thursday’s opinion brings into question whether or not those pipelines can remain in place, he said.
Ruby said opposition legal tactics don’t protect the environment.
“They are only driving up consumer energy costs, delaying access to cleaner energy and making it harder for public utilities to reliably serve consumers and businesses,” Ruby said. The pipeline would carry 1.5 billion cubic feet of West Virginia fracked gas daily.
The Federal Energy Regulatory Commission approved the Forest Service’s pipeline route. The 42-inch pipes would cross 16 miles of the George Washington National Forest, and five miles of the Monongahela National Forest, as well as the Appalachian National Scenic Trail.
The three-judge panel said the Forest Service violated the National Environmental Policy Act and National Forest Management Act, and did not have authority under the Mineral Leasing Act to grant permission to cross the Appalachian National Scenic Trail. The judges remanded the matter to the Forest Service for further proceedings.
D.J. Gerken, senior attorney for the Southern Environmental Law Center, who argued the case before the judges, applauded their decision. He painted a picture of political pressure leading to a faulty Forest Service decision.
“The national forest is a difficult place to build this kind of an industrial use under the best of circumstances, and these are not the best of circumstances,” he said. “Landslide hazards, erosion hazards, rare species. They picked the worst possible route, and counted on political bullying to make it happen.”
Other lawsuits are challenging the pipeline. Gerken expects it will be some time before they all work their way through the courts.