The 4th U.S. Circuit Court of Appeals has thrown out a permit issued by the U.S. Forest Service that would allow the Atlantic Coast Pipeline to cross beneath the Appalachian Trail and 21 miles of steep national forest land in Virginia and West Virginia.
The court on Thursday found that the Forest Service had "abdicated its responsibility to preserve national forest resources" and sent the permit back to the federal agency to correct under the guidance of the 60-page ruling, written by Judge Stephanie D. Thacker of West Virginia.
The decision creates a major barrier for Dominion Energy, lead partner in the project, which had changed the proposed route in early 2015 to cross the Appalachian Trail on Forest Service land expressly to avoid the need for an act of Congress to allow the pipeline to cross the national scenic trail. The original route would have crossed the trail about 8 miles north near Afton, but the Park Service said it had no authority to permit it.
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Dominion's allies in Congress reportedly are considering an amendment to a pending appropriations bill for the Department of Interior that would permit the crossing of the Appalachian Trail and Blue Ridge Parkway near Reed's Gap.
The 4th Circuit found that the Forest Service had no authority to grant the right-of-way for the 604-mile pipeline to cross the national scenic trail, administered by the National Park Service, between Augusta and Nelson counties in the Blue Ridge Mountains above Wintergreen Resort.
The ruling also found that the Forest Service had acted arbitrarily and capriciously by changing its forest management plans to accommodate the project, not fully considering alternative routes that would reduce the pipeline's damage to national forest land, and "failing to take a hard look at the environmental consequences" of the $7 billion project to the George Washington and Monongahela National Forests.
"We trust the United States Forest Service to 'speak for the trees, for the trees have no tongues,' " the court said, reciting Dr. Seuss in a conclusion that cited the agency's own "serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company's deadlines."
The ruling comes more than two months after a hearing before the same three-judge panel in Richmond in which Chief Judge Roger L. Gregory sharply questioned a lawyer for the Forest Service over the agency's apparent change of positions on the risks of landslides on steep slopes that would be crossed by the pipeline, as well as other potential "adverse impacts" posed by the project.
The 4th Circuit already had vacated a permit issued by the Park Service to allow the pipeline to cross the Blue Ridge Parkway, a national scenic byway under its management. The agency subsequently issued a revised permit, which also has been challenged in the federal appeals court by the Southern Environmental Law Center.
"The George Washington National Forest, Monongahela National Forest and the Appalachian Trail are national treasures," Patrick Hunter, an attorney for the center, said in a statement on Thursday that accused President Donald Trump's administration of being "far too eager to trade them away for a pipeline conceived to deliver profit to its developers, not gas to consumers."
"This pipeline is unnecessary and asking natural gas customers to pay developers to blast this boondoggle through our public lands only adding insult to injury,” Hunter said.
Dominion spokesman Aaron Ruby said the company is reviewing the ruling and had no immediate comment.
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