Appeals court throws out permit for Atlantic Coast Pipeline

By Kyla Asbury | Dec 14, 2018

CHARLESTON — The U.S. Court of Appeals for the 4th Circuit vacated a permit that would go across the Appalachian Trail with the three-judge panel criticizing the permit being approved in the first place.

Chief Judge Roger L. Gregory and Judges James A. Wynn Jr. and Stephanie D. Thacker presided over the appeal, with Thacker authoring the Dec. 13 published opinion. 

The panel concluded that the Forest Service’s decisions violate the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) and that it surrendered its responsibility to preserve the national forest resources.

Thacker made mention to Dr. Seuss's "The Lorax" in the opinion, which is a story about taking care of forests.

"We trust the United States Forest Service to 'speak for the trees, for the trees have no tongues," Thacker wrote. "A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources."

The court reached its decision in part by the Forest Service’s "serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines."

"Accordingly, for the reasons set forth herein, we grant the petition to review the Forest Service’s Record of Decision and Special Use Permit, vacate the Forest Service’s decisions, and remand to the Forest Service for proceedings consistent with this opinion," Thacker wrote.

The panel criticized how the U.S. Forest Service had granted the special-use permit to build the natural gas pipeline, which is to be more than 600 miles long, through parts of the George Washington and Monongahela National Forests. It also criticized the Forest Service for granting a right-of-way across the Appalachian Trail.

Thacker wrote that the Forest Service was not the appropriate agency head for the Appalachian Trai.

"The Forest Service’s arguments notwithstanding, the National Trails System Act does not distinguish between various levels of administration of the [Appalachian Trail]; rather, as [National Park Service] explained to [Federal Energy Regulatory Commission], the Act is clear that the Secretary of the Interior administers the entire [Appalachain Trail], while 'other affected State and Federal agencies,' like the Forest Service, manage trail components under their jurisdiction," Thacker wrote.

The panel granted the petition to review the Forest Service's Record of Decision and Special Use Permit and vacated the Forest Service's decisions.

U.S. Court of Appeals for the 4th Circuit Case number: 18-1144

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