PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1144

COWPASTURE RIVER PRESERVATION ASSOCIATION; HIGHLANDERS 

FOR RESPONSIBLE DEVELOPMENT; SHENANDOAH VALLEY 

BATTLEFIELDS FOUNDATION; SHENANDOAH VALLEY NETWORK; 

SIERRA CLUB; VIRGINIA WILDERNESS COMMITTEE; WILD VIRGINIA, 

INC.,

Petitioners,

v.

FOREST SERVICE, an agency of the U.S. Department of the Agriculture; 

KATHLEEN ATKINSON, in her official capacity as Regional Forester of the 

Eastern Region; KEN ARNEY, in his official capacity as Acting Regional 

Forester of the Southern Region,

Respondents,

ATLANTIC COAST PIPELINE LLC,

 Intervenor.

On Petition for Review of a Decision of the United States Forest Service.

Argued: September 28, 2018 Decided: December 13, 2018

Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.

Petition for review granted, vacated and remanded by published opinion. Judge Thacker 

wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.
2

ARGUED: Austin D. Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, 

Asheville, North Carolina, for Petitioners. Avi Kupfer, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Brooks Meredith 

Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor. ON BRIEF:

Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert, 

Jonathan Gendzier, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, 

Virginia, for Petitioners Cowpasture River Preservation Association, Highlanders for 

Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah 

Valley Network, and The Virginia Wilderness Committee. Nathan Matthews, SIERRA 

CLUB ENVIRONMENTAL LAW PROGRAM, Oakland, California, for Petitioners 

Sierra Club and Wild Virginia, Inc. Eric Grant, Deputy Assistant Attorney General, 

Andrew C. Mergen, J. David Gunter II, Environment & Natural Resources Division, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Stephen A. 

Vaden, Principal Deputy General Counsel, Washington, D.C., Jay McWhirter, Sarah 

Kathmann, Office of the General Counsel, UNITED STATES DEPARTMENT OF 

AGRICULTURE, Atlanta, Georgia, for Respondents. Andrea W. Wortzel, 

TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.
3

THACKER, Circuit Judge: 

In this case, we address whether the United States Forest Service (“Forest 

Service”) complied with the National Forest Management Act (“NFMA”), the National 

Environmental Policy Act (“NEPA”), and the Mineral Leasing Act (“MLA”) in issuing a 

Special Use Permit (“SUP”) and Record of Decision (“ROD”) authorizing Atlantic Coast 

Pipeline, LLC (“Atlantic”), the project developer, to construct the Atlantic Coast Pipeline 

(“ACP” or “the pipeline”) through parts of the George Washington and Monongahela 

National Forests (“GWNF” and “MNF,” respectively) and granting a right of way across 

the Appalachian National Scenic Trail (“ANST”). 

For the reasons more fully explained below, we conclude that the Forest Service’s 

decisions violate the NFMA and NEPA, and that the Forest Service lacked statutory 

authority pursuant to the MLA to grant a pipeline right of way across the ANST. 

Accordingly, we grant the petition for review of the Forest Service’s SUP and ROD, 

vacate those decisions, and remand to the Forest Service for further proceedings 

consistent with this opinion.

I.

A.

Background

The 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 the SUP, ROD, and right of way challenged in this case -- crosses 21 miles of 
4

national forest land (about 16 miles in the GWNF and five miles in the MNF) and crosses 

the 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.

Pursuant to 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 which cannot be avoided,” and 

potential alternatives to the proposal. 42 U.S.C. § 4332(C). On April 27, 2015, the 

Forest Service provided scoping comments on FERC’s Notice of Intent to prepare an EIS

for the ACP project. The scoping comments stated, among other concerns, that the EIS 

must analyze alternative routes that do not cross national forest land, and that the EIS 

must address the Forest Service’s policy that restricts special uses on national forest lands 

to those that “cannot reasonably be accommodated on non-National Forest System 

lands.” J.A. 3593;1 see also Forest Serv. Manual, Addendum to Pet’rs’ Br. 65–66. The 

Forest Service’s comments further identified concerns about landslides, slope failures, 

 1 Citations to the “J.A.” refer to the Corrected Deferred Joint Appendix filed by 

the parties in this appeal.
5

sedimentation, and impacts to groundwater, soils, and threatened and endangered species 

that it believed would result from the ACP project.

On September 18, 2015, Atlantic filed its formal application with FERC to 

construct, own, and operate the pipeline. On November 12, 2015, Atlantic applied for the 

SUP from the Forest Service to construct and operate the pipeline across the MNF and 

GWNF. This application was amended in June 2016. 

B.

Review and Comment

As FERC prepared the EIS, the Forest Service reviewed and commented on draft 

environmental resource reports, construction designs, biologic evaluations, and the first 

draft of Atlantic’s Construction, Operation, and Maintenance (“COM”) Plan filed with 

FERC. Additionally, in a letter to Atlantic dated October 24, 2016, the Forest Service 

requested ten site-specific stabilization designs for selected areas of challenging terrain to 

demonstrate the effectiveness of Atlantic’s proposed steep slope stability program, which 

Atlantic called the “Best in Class” (“BIC”) Steep Slopes Program. As the Forest Service 

explained:

Both the [GWNF and MNF] contain Forest Plan standards that limit 

activities in areas that are at high risk for slope and soil instability. To 

facilitate the acceptance of ACP’s [SUP] application for further processing, 

the Forests need to be able to determine that the project is consistent or can 

be made consistent with this Forest Plan direction.

J.A. 3379. The letter further noted that the ten selected sites were “merely representative

sites that have been selected to demonstrate whether stability can be maintained for the 

purpose of making a preliminary determination of Forest Plan consistency. Should the 
6

ACP Project be permitted, multiple additional high hazard areas will need to be addressed 

on a site-specific basis.” Id. 

In a meeting between Atlantic and the Forest Service on November 21, 2016, 

Atlantic presented the first two of these site-specific stabilization designs (identified as 

MNF01 and GWNF02 in the October 24, 2016 letter). According to the meeting notes, 

the MNF Forest Supervisor noted:

[W]hile the BIC program [Atlantic] is proposing is laudable [the MNF 

Forest Supervisor] is skeptical the techniques will work; the Forest Service 

has seen slope failures on lesser slopes and would be able to provide 

examples. [Atlantic] needs to be able to demonstrate that the techniques 

will work in extreme conditions. . . . The [Forest Service] wants to know 

beforehand that these examples have a reasonable chance of working.

J.A. 3319. Additionally, the Forest Service observed that the MNF01 and GWNF02 

“drawings are a step in the right direction but more detail is needed for site specific 

design, the Forest Service needs to see how this lays out on the land.” Id. at 3320.

Thereafter, beginning in December 2016, Atlantic circulated a timeline of “FERC 

and Forest Service Reviews” to the Forest Service, which set the following deadlines for 

the agency’s decisions (as proposed by Atlantic): (1) FERC’s Draft Environmental 

Impact Statement (“DEIS”) to be issued in December 2016; (2) FERC’s Final 

Environmental Impact Statement (“FEIS”) to be issued in June 2017; (3) the Forest 

Service’s draft ROD to be issued also in June 2017; (4) a “Federal Agency Decision 

Deadline” of September 2017 (for issuance of the FERC Certificate of Convenience and 

Public Necessity and the Forest Service’s SUP and ROD); (5) Forest Plan amendments 

completed in October 2017; and (6) the pipeline in service by 2019. See J.A. 3252–53. 
7

In line with Atlantic’s deadlines for the agencies’ decisions, FERC issued the 

DEIS on December 30, 2016. Regarding its analysis of alternative routes, the DEIS

explicitly stated that the ACP was routed on national forest lands in order to avoid the 

need for congressional approval for the pipeline to cross the ANST:

A significant factor in siting ACP was the location at which the pipeline 

would cross the ANST. In the general project area, the ANST is located on 

lands managed by either the [National Park Service (“NPS”)] or [the Forest 

Service]. The NPS has indicated that it does not have the authority to 

authorize a pipeline crossing of the ANST on its lands. Instead, legislation 

proposed by Congress and signed into law by the President would be 

necessary to allow the NPS the authority to review, analyze, and approve a 

pipeline crossing of the ANST on its lands. Because of this legislative 

process, Atlantic considered locations where the ANST was located on 

lands acquired and administered by the [Forest Service], which 

significantly constrained the pipeline route and severely limits opportunities 

for avoiding and/or minimizing the use of [National Forest System] lands.

J.A. 3207–08 (emphasis supplied). Regarding the environmental impact on forest 

resources, the DEIS further stated:

[W]e acknowledge that a shorter pipeline route could conceptually have 

significantly greater qualitative impacts to sensitive resources than a longer 

route, which could make the longer route preferable. In this instance, we 

have not identified or received any information that suggests the shorter 

pipeline route through the National Forests has significantly greater impacts 

to sensitive resources than the alternative, but acknowledge that ground 

resource surveys have not been conducted.

Id. at 3208 (emphasis supplied).

On February 17, 2017, Atlantic and the Forest Service met again to discuss the ten 

requested site-specific stabilization designs. During this meeting, Atlantic informed the 

Forest Service that the two earlier site designs were for demonstration purposes, and the 

remaining eight sites were not currently being designed. The Forest Service stated that it 
8

was “not comfortable” with not seeing the remaining designs, and that it was the Forest 

Service’s understanding that specific designs for all ten sites were still needed. J.A. 

2939. Significantly, the Forest Service stated, it “want[ed] to see actual information, 

including specs on the actual controls and protocol on how they will be installed, not 

conceptual drawings.” Id.

On April 6, 2017, the Forest Service provided comments on FERC’s DEIS. In 

multiple places, the Forest Service’s comments stated that FERC’s conclusions in the 

DEIS were premature given the incomplete information used to make them -- this was 

particularly the case regarding the extent of impacts to national forest resources and the 

effectiveness of mitigation techniques. See, e.g., J.A. 2444 (“This statement [in the 

DEIS] acknowledges deficiencies in information needed to conduct an appropriate effects 

analysis for at least some sensitive species. Given this, the [Forest Service] has serious 

reservations about the conclusions of the analyses up to this point because those 

conclusions have been reached prior to acquiring the necessary information to 

substantiate what must otherwise be presumed to represent judgments based on 

incomplete information.”); id. at 2445 (“There will be irreversible impacts to the soil and 

vegetation resources from construction of the ACP pipeline on [National Forest System] 

lands. No matter how [Atlantic] plans to implement measures to reduce these impacts, 

there will still be an unavoidable irreversible dedication of the soil resource as defined by 

NEPA . . . . The [COM] Plan is currently not complete, and substantial work remains to 

develop and refine measures to avoid, minimize, and mitigate impacts to a variety of 
9

resources on [National Forest System] lands, including steep slopes/sensitive soils; 

threatened, endangered, and sensitive species; and management indicator species.”). 

Further, regarding the DEIS’s analysis of non-national forest alternative routes, the 

Forest Service commented: 

No analysis of a National Forest Avoidance Alternative has been 

conducted, and environmental impacts of this alternative have not been 

considered or compared to the proposed action. Therefore, the Forest 

Service cannot support the recommendation that the National Forest 

Avoidance Alternative be dropped from consideration. In our scoping 

comments, we requested that all alternatives, including a National Forest 

Avoidance Alternative, be fully addressed in regard to their feasibility and 

environmental effects. We hereby reiterate that request.

J.A. 2454 (emphasis supplied). 

The Forest Service’s comments on Atlantic’s draft biologic evaluation, issued on 

April 24, 2017, paint a similarly grim picture of the ACP project’s effects on erosion and 

on threatened and endangered species. For example, Atlantic’s draft biologic evaluation 

contained the following statement: “Construction activities may displace certain sensitive 

species from within and areas adjacent to the right-of-way, but the impact is expected to 

be short-term and limited to the period of construction. After construction, Atlantic will 

restore the right-of-way as near as practicable to preconstruction contours and conditions 

. . . .” J.A. 2324. In response, the Forest Service stated: 

Restoration will consist of erosion control, some NNIS [non-native invasive 

species] control, and some native plant re-introduction, so it will create 

habitat of some sort, but the impact to sensitive species should be expected 

to be long-term. Restoration plantings will take many years to establish 

and flourish, will in most cases consist of different species than were 

present before, and will in many cases not re-create the conditions sensitive 

species need to survive. NNIS introductions, given the current lack of plans 

to conduct treatment along access roads, likely will create long-term 
10

negative impacts to the ecosystem, including potentially to sensitive 

species.

Id. (emphasis supplied). 

Additionally, in response to a statement in the draft biologic evaluation that the 

loss of potential roosting habitat for the little brown bat (caused by construction of the 

pipeline and the resulting permanent right of way) would be “offset,” since the species 

could use the right of way as foraging habitat, the Forest Service stated: 

A potential increase in foraging habitat (which is not really proven here) 

does not offset the long-term loss of good roosting habitat -- they apply to 

different life history needs and an increase in one does not offset loss of the 

other. Also, the loss of forested habitat would be a long-term impact given 

the time period required for recovery.

J.A. 2333. The Forest Service further noted, “Bats utilizing the more open areas (such as 

the [right of way] and road corridors) for foraging are also more vulnerable to predators. 

This offset is counteracted by an increase in potential predation, which negates the [right 

of way] and roads as potentially beneficial to the bat.” Id. at 2332.

C.

Change of Course

Despite the Forest Service’s clearly stated concerns regarding the adverse impacts 

of the ACP project, as Atlantic’s deadlines for the agency’s decisions drew closer, its 

tenor began to change. On May 14, 2017, the Forest Service sent a letter to FERC and

Atlantic in which it stated -- for the first time -- that it would not require the remaining 

eight site-specific stabilization designs before authorizing the project. Specifically, the 

letter stated: “If the ACP project is authorized, the site-specific designs for the remaining 
11

eight sites identified in our October 24, 2016 letter must be reviewed and approved by the 

[Forest Service] before construction at those locations could begin.” J.A. 2307. The 

letter did not acknowledge that the agency was changing its position from its original 

request for all ten site designs prior to granting approval for the ACP nor did it provide

any further explanation regarding the reason for the Forest Service’s change in position. 

On July 5, 2017, the Forest Service sent a letter to Atlantic “acknowledg[ing]” that the 

two site-specific stabilization designs that had so far been provided (MNF01 and 

GWNF02) and the subsequent information about those sites provided by Atlantic “w[ere]

adequate for the purposes of disclosing the environmental effects” associated with the 

ACP project. Id. at 1881. The letter did not provide any explanation as to why the two 

plans were “adequate.”

On July 21, 2017, FERC released the FEIS. On the very same day, and in line 

with Atlantic’s timeline, the Forest Service released its draft ROD proposing to adopt the 

FEIS, grant the SUP, and exempt Atlantic from several forest plan standards. The FEIS’s 

“National Forest Avoidance Route Alternatives” section, which the Forest Service 

commented on previously (as explained above), is identical to the DEIS. Regarding the 

alternatives analysis, the Forest Service’s draft ROD states: “FERC’s evaluation 

concluded that the major pipeline route alternatives and variations do not offer a 

significant environmental advantage when compared to the proposed route or would not 

be economically practical.” Id. at 1411.

Regarding the COM Plan, on October 6, 2017, the Forest Service sent a letter to 

Atlantic stating that Atlantic’s June 30 responses to the Forest Service’s second draft 
12

COM Plan comments “largely addressed our comments except for a limited number of 

items needing further explanation or clarification.” J.A. 847. The letter requested an 

updated COM Plan incorporating these responses. Atlantic filed this third (and final) 

draft of the COM Plan on October 27, 2017.

FERC issued the Certificate of Convenience and Public Necessity to ACP for 

construction of the pipeline on October 13, 2017. 

Shortly after, on October 27, 2017, the Forest Service filed its responses to 

objections to the draft ROD. In response to an objection regarding the range of nonnational forest route alternatives, the Forest Service stated that FERC “adequate[ly] 

consider[ed] the route across the National Forests” and “concluded these alternatives 

would not provide a significant environmental advantage over a shorter route that passes 

through National Forests.” J.A. 676.

On November 16, 2017, the Forest Service sent a letter to Atlantic regarding 

Atlantic’s updated biologic evaluation, which had been filed on August 4, 2017. That 

biologic evaluation stated that the ACP project was likely to result in a “loss of viability” 

for three Regional Forester Sensitive Species (“RFSS”) in the MNF, a conclusion which, 

we note, was in line with the Forest Service’s April 24, 2017 comments on the draft 

biologic evaluation. Nonetheless, in an about-face, the Forest Service’s letter amended 

the updated biologic evaluation to conclude that, in fact, the project was not likely to 

result in a loss of viability to the three RFSS. This conclusion is significant, because the 

Forest Service cannot authorize uses of national forests that are likely to result in a loss of 

viability for a species. See J.A. 64 (“Per [Forest Service Manual] 2670.32, activities or 
13

decisions on [National Forest System] lands ‘must not result in a loss of species viability 

or create significant trends towards federal listing.’”). However, as noted above, the 

Forest Service had already issued its draft ROD proposing to authorize the SUP before 

the updated biologic evaluation was filed.

The Forest Service issued its final ROD on November 17, 2017, and it issued the 

SUP and granted the right of way across the ANST on January 23, 2018. Cowpasture 

River Preservation Association, Highlanders for Responsible Development, Shenandoah 

Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia 

Wilderness Committee, and Wild Virginia, Inc. (collectively, “Petitioners”) filed this 

challenge on February 5, 2018. We possess jurisdiction pursuant to the Administrative 

Procedure Act (“APA”), 5 U.S.C. §§ 701–06, and the Natural Gas Act, 15 U.S.C. 

§ 717r(d)(1).

II.

We 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.’” Sierra Club, Inc. v. 

U.S. Forest Serv., 897 F.3d 582, 589–90 (4th Cir. 2018) (quoting 5 U.S.C. § 706(2)(A)). 

An agency’s decision is arbitrary and capricious if: 

the agency relied on factors which Congress has not intended it to consider, 

entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the 

agency, or is so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise. 
14

Id. at 590 (quoting Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 396 (4th Cir. 

2014)).

III.

Petitioners assert that the Forest Service violated three federal Acts in issuing the 

ROD and SUP: the NFMA, NEPA, and the MLA. We address each of these Acts and 

alleged violations in turn.

A.

National Forest Management Act

The NFMA sets forth substantive and procedural standards that govern the 

management of national forests. See 16 U.S.C. § 1604. As this court recently explained 

in Sierra Club v. Forest Service, the NFMA establishes a procedure for managing 

National Forest System lands using “Forest Plans,” which “provide a framework for 

where and how certain activities can occur in national forests.” Sierra Club, Inc. v. U.S. 

Forest Serv., 897 F.3d 582, 600 (4th Cir. 2018) (quoting Am. Wild Horse Pres. Campaign 

v. Perdue, 873 F.3d 914, 919 (D.C. Cir. 2017); 16 U.S.C. § 1604(a)). First, the NFMA 

directs the Forest Service to “develop, maintain, and, as appropriate, revise” Forest Plans; 

second, it directs the Forest Service to ensure that all activities on national forest lands --

specifically, all “resource plans and permits, contracts, and other instruments for the use 

and occupancy of National Forest System lands” -- are consistent with the Forest Plans. 

Id. (quoting Perdue, 873 F.3d at 919; 16 U.S.C. § 1604(i)). 

The NFMA also charges the Department of Agriculture (through the Forest 

Service, see 36 C.F.R. § 200.3(b)) with “promulgating guidelines for Forest Plans, which 
15

should, inter alia, ‘insure consideration of the economic and environmental aspects of 

various systems of renewable resource management’ and ‘provide for diversity of plant 

and animal communities based on the suitability and capability of the specific land 

area.’” Sierra Club, 897 F.3d at 600 (quoting 16 U.S.C. § 1604(g)(3)(A)–(B)). At issue 

in this case are two Forest Service regulations issued pursuant to this authority: the 2012 

Planning Rule and the 2016 Amendment to the 2012 Planning Rule, both of which deal 

with amendments to Forest Plans.

Petitioners assert that the Forest Service violated the NFMA by: (1) determining 

that amendments to the GWNF and MNF Plans’ standards to accommodate the ACP 

were not “directly related” to the 2012 Forest Planning Rule’s (“2012 Planning Rule’s”) 

substantive requirements; (2) failing to meet public participation requirements in 

amending forest plans; and (3) failing to analyze whether the ACP project’s needs could 

be reasonably met off of national forest land.

1.

2012 Planning Rule

Petitioners assert that the Forest Service violated the NFMA by failing to apply the 

substantive requirements of the 2012 Planning Rule to the amendments of the GNF and 

MNF Plans’ standards. Specifically, Petitioners assert that the amendments are directly 

related to the substantive requirements both in their purpose and their effects.
16

a.

Background

In 2012, the Forest Service updated its Forest Planning Rule, which superseded the 

1982 rule and set forth new, substantive requirements for Forest Plans. See 2012 

Planning Rule, 77 Fed. Reg. 21,162 (U.S. Dep’t of Agric. Apr. 9, 2012). The updated 

substantive requirements in the 2012 Planning Rule apply to Forest Plans developed 

under the 1982 rule in certain circumstances. See 36 C.F.R. §§ 219.8–219.11; Sierra 

Club, 897 F.3d at 600–01. Specifically, as the 2016 Amendment to the 2012 Planning 

Rule clarified, a substantive requirement from the 2012 Planning Rule applies to a Forest 

Plan amendment if that requirement is “directly related to the plan direction being added, 

modified, or removed by the amendment.” Sierra Club, 897 F.3d at 601 (quoting 36 

C.F.R. § 219.13(b)(5) (emphasis supplied in Sierra Club)). 

If the substantive requirement is directly related to the amendment, then the 

responsible official must “apply such requirement(s) within the scope and scale of the 

amendment.” Sierra Club, 897 F.3d at 601 (quoting 36 C.F.R. § 219.13(b)(5)). 

Conversely, if the substantive requirement from the 2012 Planning Rule is not directly 

related to the amendment, the responsible official is not required to apply it to the 

amended Forest Plan. See id. Thus, Petitioners’ arguments on this point turn on whether 

the requirements in the 2012 Planning Rule are directly related to the Forest Service’s 

amendments to the GWNF and MNF Plans.

A substantive requirement is directly related to the amendment when the 

requirement “is associated with either the purpose for the amendment or the effects 
17

(beneficial or adverse) of the amendment.” Sierra Club, 897 F.3d at 602 (quoting 2016 

Amendment to 2012 Rule, 81 Fed. Reg. 90,723, 90,731 (U.S. Dep’t of Agric. Dec. 15, 

2016)); see also 36 C.F.R. § 219.13(b)(5)(i) (“The responsible official’s determination 

must be based on the purpose for the amendment and the effects (beneficial or adverse) 

of the amendment, and informed by the best available scientific information, scoping, 

effects analysis, monitoring data or other rationale.”). Further, regarding the adverse 

effects of an amendment, “[t]he responsible official must determine that a specific 

substantive requirement is directly related to the amendment when scoping or NEPA 

effects analysis for the proposed amendment reveals substantial adverse effects 

associated with that requirement, or when the proposed amendment would substantially 

lessen protections for a specific resource or use.” 36 C.F.R. § 219.13(b)(5)(ii).

b.

GWNF and MNF Plan Amendments: Purpose Analysis

In its ROD, the Forest Service decided to apply project-specific amendments to a 

total of 13 standards in the GWNF and MNF Plans for the purpose of construction and 

operation of the ACP. The amendments exempt the ACP project from four MNF Plan 

standards and nine GWNF Plan standards that relate to soil, water, riparian, threatened 

and endangered species, and recreational and visual resources.

Petitioners assert that the Forest Service violated the NFMA and the 2012 

Planning Rule because it skipped the “purpose” prong of the “directly related” analysis. 
18

Consistent with our decision in Sierra Club, we conclude that Petitioners are correct.2

 

Although the ROD states the rule correctly, see J.A. 36 (“[W]hether a planning regulation 

requirement is directly related to an amendment is based upon the amendment’s purpose 

or its effect (beneficial or adverse).”), it fails to analyze the purpose of the amendments 

and instead moves directly to analyzing the amendments’ effects, see id. at 36–48. This 

omission is particularly striking because the Forest Service specifically identified the 

purpose and need for the amendments in the ROD: 

The purpose of the amendments are [sic] to meet the requirements of the 

NFMA and its implementing regulations that projects authorized on 

[National Forest System] lands must be consistent with the LRMP. 

Without the MNF and GWNF project-specific Forest Plan amendments the 

ACP project would not be consistent with some Forest Plan standards 

related to soil, riparian, threatened and endangered species, utility corridors, 

the ANST, an Eligible Recreational River Area, and scenic integrity 

objectives.

Id. at 31. 

Indeed, this purpose and need is repeated several times throughout the ROD. See, 

e.g., J.A. 27 (“The project-specific amendments to MNF and GWNF LRMP’s [sic] 

approved by this decision are needed to allow the ACP Project to be consistent with 

LRMP standards.”); id. at 37 (“[T]he purpose of the plan amendments is to ensure 

consistency of the ACP Project with the provisions of the two Forest Plans.”). There 

 2 Faced with a nearly identical situation in Sierra Club v. Forest Service, we 

concluded that the Forest Service acted arbitrarily and capriciously by failing to analyze 

the purpose of the amendment in its ROD (and instead focusing on only the effects) when 

“the clear purpose of the amendment [was] to lessen requirements protecting soil and 

riparian resources so that the pipeline project could meet those requirements.” Sierra 

Club, 897 F.3d at 603.
19

would be no need to amend the Forest Plans to “ensure consistency” if the ACP project 

could meet the Forest Plan standards in the first place. In other words, the ROD makes 

clear that the purpose of the amendments was to lessen certain environmental 

requirements in the GWNF and MNF Plans because the ACP project could not meet 

those Plans’ existing requirements.

Accordingly, by failing to analyze whether the substantive requirements of the 

2012 Planning Rule are directly related to the purpose of the amendments, the Forest 

Service “entirely failed to consider an important aspect of the problem.” Defs. of Wildlife 

v. N.C. Dep’t of Transp., 762 F.3d 374, 396 (4th Cir. 2014) (quoting Motor Vehicle Mnfs. 

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). This failure is 

significant, because it is clear that the amendments (intended to lessen protections for 

soils, riparian areas, and threatened and endangered species in the GWNF and MNF 

Plans) are directly related to the 2012 Planning Rule’s substantive requirements for these 

same categories: “soil and soil productivity” (36 C.F.R. § 219.8(a)(2)(ii)); “water 

resources” (id. § 219.8(a)(2)(iv)); “ecological integrity of riparian areas” (id. 

§ 219.8(a)(3)(i)); “ecological integrity of terrestrial . . . ecosystems” (id. § 219.8(a)(1)); 

“appropriate placement and sustainable management of . . . utility corridors” (id. 

§ 219.10(a)(3)); and “recovery of federally listed . . . species” (id. § 219.9(b)). 

c.

Ex Post Facto Statements of Purpose

Notwithstanding the Forest Service’s statements of purpose and need in the ROD, 

in its briefing and at oral argument the Forest Service attempted to recharacterize the 
20

purpose of the amendments as “to relax thirteen planning standards just enough to 

‘authorize [Atlantic] to use and occupy [National Forest System] lands for the [ACP] 

Project’ consistent with the forest plans.” Resp’t’s Br. 18. Meanwhile, Atlantic asserts 

that the Forest Service did “explicitly evaluate[] the purpose of the proposed 

amendments” and determined that “the purpose of ACP is not directly related to any of 

[the 2012 Planning Rule’s] management guidelines.” Intervenor’s Br. 25. Instead, 

according to Atlantic, “the purpose of ACP is to ‘serve the growing energy needs of 

multiple public utilities and local distribution companies, and Virginia and North 

Carolina’ and the ‘purpose and need’ of the ‘proposed action’ is to ‘respond to Atlantic’s 

application for a special use permit.’” Id. (quoting J.A. 10, 37). Quite the contrary -- the 

ROD does not analyze whether the amendments’ purpose is directly related to the 2012 

Planning Rule’s substantive requirements. Rather, the ROD lists the purpose and need of 

the amendments but analyzes only the amendments’ effects. See J.A. 36–48. The Forest 

Service’s and Atlantic’s attempts to recharacterize the purpose of the amendments 

(despite the clear statements of the amendments’ purpose in the ROD) are without merit. 

First, the Forest Service asserts that the true purpose of the amendments was just 

to authorize the ACP project -- not to lessen environmental protections for certain 

resources -- and that “not every amendment with an effect on a particular resource has the 

purpose of adjusting the forest plan’s direction for that resource.” Resp’t’s Br. 18–19 

(emphasis in original). But this contradicts the Forest Service’s own description of the 

amendments’ purpose in both the ROD and in its brief, which begins with the phrase “to 

relax thirteen planning standards.” Id. at 18. Relaxing, lessening, loosening -- regardless 
21

of the Forest Service’s verb preference, the purpose of the Forest Plan amendments is to 

reduce the Plans’ environmental protections for certain resources. 

Further, this is not a situation where a proposed project-specific amendment may 

have an incidental effect on a Forest Plan standard; rather, the amendments’ entire 

purpose is to weaken existing environmental standards in order to accommodate the 

ACP, which cannot meet the current standards. To say that a 2012 Planning Rule 

requirement protecting water resources (as one example) is not “directly related” to a 

Forest Plan amendment specifically relaxing protection for water resources is nonsense.

Meanwhile, Atlantic conflates the purpose of the amendments to the Forest Plans 

with, first, the overall purpose of the ACP project (to “serve the growing energy needs of 

multiple public utilities and local distribution companies, and Virginia and North 

Carolina,” Intervenor’s Br. 25), and second, the Forest Service’s reason for taking action 

at all (to “respond to Atlantic’s application for a special use permit,” id.). Both 

interpretations of “purpose” are facially incorrect applications of the 2012 Planning 

Rule’s “directly related” analysis, and neither address the Forest Service’s purpose for 

amending the GWNF and MNF Plans. First, the purpose of the plan amendment, not the

ACP project, is the focus of this analysis. Second, the Forest Service’s need to respond 

to Atlantic’s application for the SUP is overly broad and does not address the need for 

amending the Forest Plans -- clearly, the Forest Service could have “responded” to 

Atlantic’s application without the amendments.

Finally, both the Forest Service and Atlantic suggest that only amendments 

changing a management standard for the forest as a whole -- and not project-specific 
22

amendments -- can trigger the substantive requirements of the 2012 Planning Rule. See 

Resp’t’s Br. 18–20 (“A substantive requirement is directly related to the purpose for an 

amendment when the amendment’s objective is to adjust the management of the 

corresponding forest resource.”); Intervenor’s Br. 26 (“[T]he proposed amendments for 

ACP did not change any of the generally applicable standards or guidelines in the forest 

plans.”). Neither party offers authority to support this assertion, which is contrary to the 

purpose of the 2012 Planning Rule: to promote consistency in the protections for national 

forest resources across Forest Plans. See 2012 Planning Rule, 77 Fed. Reg. at 21,162. If 

the Forest Service could circumvent the requirements of the 2012 Planning Rule simply 

by passing project-specific amendments on an ad hoc basis, both the substantive 

requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency 

requirement would be meaningless.

Accordingly, in line with our decision in Sierra Club v. Forest Service, we 

conclude that the 2012 Planning Rule requirements for soil, riparian resources, and 

threatened and endangered species are directly related to the purpose of the Forest Plan 

amendments. The Forest Service acted arbitrarily and capriciously in concluding 

otherwise.

d.

Effects Analysis

Although we need not reach the “effects” prong of the analysis in light of our 

conclusion that the purpose of the amendments is directly related to the 2012 Planning 
23

Rule’s substantive requirements, the Forest Service’s assertion that the Plan amendments 

will not have substantial adverse effects warrants additional discussion. 

As noted above, a substantive requirement is directly related to a Forest Plan 

amendment when the requirement “is associated with . . . the effects (beneficial or 

adverse) of the amendment.” Sierra Club, 897 F.3d at 602 (quoting 2016 Amendment to 

2012 Rule, 81 Fed. Reg. at 90,731); see also 36 C.F.R. § 219.13(b)(5)(i). The Forest 

Service asserts that an adverse effect must be “substantial” in order to be directly related 

to a substantive provision in the 2012 Planning Rule.3

 When asked at oral argument how 

the Forest Service defines “substantial adverse effects,” counsel for the Forest Service 

responded:

COUNSEL: [T]he best guidance for that issue can be found in the 

preamble to the 2012 [Planning] Rule where the Forest Service says that 

rarely, if ever, will a project-specific amendment rise to the level of having 

a substantial adverse effect on these resources.

 3 It is not necessary for us to determine whether this characterization of the 

regulations is accurate because, for the reasons explained below, we conclude that the 

Forest Service’s determination that the amendments will not have substantial adverse 

effects was arbitrary and capricious. Nevertheless, we note that the regulation at issue --

36 C.F.R. § 219.13 -- does not define “adverse effects” as including only substantial 

effects; rather, it says that the applicable substantive requirement from the 2012 Planning 

Rule must apply when the effects are substantial. See 36 C.F.R. § 219.13(b)(5)(ii). 

Curiously, there is no corresponding guidance for beneficial effects. In other words, 

under the Forest Service’s interpretation of the regulation, only “substantial” adverse 

effects could trigger application of a substantive requirement, but any beneficial effect at 

all would trigger the same substantive requirement. The Forest Service does not explain 

why the regulations would intend to make it easier to pass amendments that harm the 

environment (by not requiring application of the substantive requirements, which aim to 

protect the environment, unless that harm is substantial) but more difficult to pass 

amendments that benefit the environment. 
24

. . .

COURT: How can that be, rarely if ever will something rise to have a 

substantial adverse effect on the forest? How many trees do you cut down 

before it is a substantial adverse effect? Maybe not one. All of them?

COUNSEL: The way the Forest Service stated it in the 2012 preamble to 

[the Planning] Rule was that it was going to look at the impact of the 

resource over the entire forest.

Oral Argument at 22:55–24:04, Cowpasture River Preservation Ass’n v. Forest Serv., 

No. 18-1144 (4th Cir. Sept. 28, 2018), http://www.ca4.uscourts.gov/oral-argument/listento-oral-arguments (hereinafter “Oral Argument”).

It is nothing short of remarkable that the Forest Service -- the federal agency 

tasked with maintaining and preserving the nation’s forest land -- takes the position that 

as a bright-line rule, a project-specific amendment, no matter how large, will rarely, if 

ever, cause a substantial adverse effect on a national forest. And it is even more 

remarkable that the agency is unable to say what would constitute a substantial adverse 

effect on the forest.

Indeed, counsel’s response did not answer the court’s question, and the Forest 

Service has never explained (in its briefing nor at argument) what makes an adverse 

effect “substantial.” Even more telling, however, is that the “rarely, if ever” language 

used by counsel is nowhere to be found in the preamble to the 2012 Planning Rule, nor in 

any other Forest Service guidance that the court could find. The closest language to 

counsel’s assertion that the court could identify is in the preamble to the 2016 

Amendment to the 2012 Planning Rule, which states, “[i]t is unlikely that a change in land 

allocation for a small area would have substantial adverse effects.” 2016 Amendment to 
25

2012 Rule, 81 Fed. Reg. at 90,728. This language was a response by the Forest Service 

to a public comment which was concerned that the proposed rule (the 2016 Amendment) 

might impose a burden on small changes to land allocation. The Forest Service’s full 

response was as follows:

The 2012 rule did not require that every resource or use be present in every 

area. The Department clarifies in this final rule that directly related specific 

substantive requirements within §§ 219.8 through 219.11 apply within the 

scope and scale of the amendment. Changes in land allocation for a small 

area would likely require a similarly narrow application of the directly 

related substantive requirements, depending on the purpose and effects of 

the changes. It is unlikely that a change in land allocation for a small area 

would have substantial adverse effects.

Id. 

Even assuming that this language from the 2016 Amendment’s preamble is what 

counsel was referring to during argument, it still does not provide any support for the 

Forest Service’s interpretation of “substantial adverse effects.” A “change in land 

allocation for a small area” is plainly not the same as generalizing to any project-specific 

amendment, and “unlikely” is a far cry from “rarely, if ever.” Perhaps this is why 

counsel struggled to define what “rarely, if ever” would mean in this context. 

Thus, we find no basis in the law for the Forest Service’s assertion that “rarely, if 

ever, will a project-specific amendment rise to the level of having a substantial adverse 

effect” on the natural forests. 

In any event, the Forest Service’s application of the “effects” prong of the directly 

related test was still flawed. In each instance in the ROD where the Forest Service 

concluded that the 2012 Planning Rule’s substantive requirements were not “directly 
26

related” to the Plan amendments, the ROD states that the amendment “will not cause 

substantial long-term adverse effects.” J.A. 39, 41, 43 (emphasis supplied). But nowhere 

do the regulations (nor does the ROD, nor does the Forest Service’s brief) state that a 

substantial adverse effect must be long term for the substantive requirement in the 2012 

Planning Rule to be “directly related” to the amendment. 

The Forest Service’s strained and implausible interpretations of “substantial 

adverse effects” are especially striking in light of the significant evidence in the record 

that the GWNF and MNF Plan amendments would cause substantial adverse effects on 

the forests. See, e.g., J.A. 25 (“Sedimentation modeling indicates annual soil loss will be 

200 to 800 percent above baseline erosion during the first year of construction, returning 

to pre-construction levels within 5 years following restoration”); id. at 2320 (“Full 

recovery of forested sites would take many decades.”); id. at 2351 (“It is unsubstantiated 

as to how [erosion] increases of that magnitude are considered moderate and impacts will 

be temporary and minimal.”).

The lengths to which the Forest Service apparently went to avoid applying the 

substantive protections of the 2012 Planning Rule -- its own regulation intended to 

protect national forests -- in order to accommodate the ACP project through national 

forest land on Atlantic’s timeline are striking, and inexplicable. 

Accordingly, we conclude that the Forest Service’s determination that the GWNF 

and MNF Plan amendments would not have substantial adverse effects on the forests was 

arbitrary and capricious. 
27

e.

Remand to the Forest Service

Because the 2012 Planning Rule requirements for soil, riparian resources, and 

threatened and endangered species are directly related to the purpose and effect of the 

GWNF and MNF Forest Plan amendments, the Forest Service must “apply [those] 

requirement[s] within the scope and scale of the amendment.” Sierra Club, 897 F.3d at 

603 (quoting 36 C.F.R. § 219.13(b)(5) (alterations in Sierra Club)). Accordingly, we 

remand to the Forest Service for proper application of the Planning Rule requirements for 

soil, riparian resources, and threatened and endangered species to the Forest Plan 

amendments.

The Forest Service contends that remand is unnecessary because the Plan 

amendments already meet the substantive requirements of the 2012 Planning Rule. Thus, 

the Forest Service asserts, any error in applying the 2012 Planning Rule was harmless. 

We find no basis to support such a conclusion. In fact, the ROD suggests just the 

opposite is true: in its analysis of the amendments’ compliance with the 2012 Planning 

Rule’s substantive requirements, the Forest Service explicitly stated when an amendment 

met the applicable substantive requirement. For example, regarding the GWNF Plan 

amendment for utility corridors, the ROD states: 

The FEIS evaluated a variety of options to transport natural gas and 

adequately analyzed the appropriate placement and sustainable 

management of the ACP. Consequently, I find this amendment meets the 

36 CFR 219.10(a)(3) planning rule requirement. Since the amendment 

meets the rule requirement, there is no need to make a further determination 

as to whether the rule requirement is directly related to it.
28

J.A. 41–42 (emphasis supplied); see also id. at 44, 46, 47, 48 (similarly concluding that 

the Plan amendments for the ANST, scenic integrity objectives, road reconstruction, and 

management of old growth, respectively, meet the 2012 Planning Rule’s substantive 

requirements and thus “there is no need” to determine whether the substantive 

requirement is directly related to the amendment).

Yet, tellingly, the Forest Service specifically did not conclude that the GWNF and 

MNF Plan amendments for soils, riparian areas, and threatened and endangered species 

met the applicable 2012 Planning Rule’s substantive requirement. Instead, it concluded

(incorrectly) that in each case, the substantive requirements were not directly related to 

the applicable Plan amendment. According to the ROD, conducting the directly related

analysis would have been unnecessary if the amendment in fact satisfied the substantive 

requirement: where “the amendment meets the rule requirement, there is no need to make 

a further determination as to whether the rule requirement is directly related to it.” J.A. 

41–42 (emphasis supplied)). Accordingly, the case must be remanded.

2.

Public Participation Requirements

Petitioners further assert that the Forest Service violated the NFMA because it 

provided no opportunity for public comment for four of the amended forest plan 

standards. Even assuming Petitioners are correct (a point the Forest Service disputes), 

Petitioners do not attempt to demonstrate “that the outcome of the process would have 

differed in the slightest had notice been at its meticulous best.” Friends of Iwo Jima v. 

Nat’l Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir. 1999). Without even an 
29

allegation of prejudice, Petitioners fail to carry their burden to prove that any noticerelated deficiency was prejudicial. Accordingly, we reject this argument.

3.

Accommodation of the ACP Project on Non-National Forest Land

Petitioners assert that the Forest Service violated NEPA by failing to consider 

alternatives that avoid national forest land. Relatedly, Petitioners argue that the Forest 

Service violated the GWNF and MNF Plans and the NFMA because it failed to 

demonstrate that the ACP project’s needs could not be reasonably met on non-national 

forest lands.

The GWNF Plan limits “Special Use Authorizations” to “needs that cannot be 

reasonably met on non-[National Forest System] lands or that enhance programs and 

activities.” J.A. 4068 (emphasis supplied). Similarly, an MNF Plan goal states: 

“[p]roposed special uses of [National Forest System] lands . . . are considered that meet 

public needs, are consistent with direction for other Forest resources and management 

prescriptions, and cannot be accommodated off the National Forest.” J.A. 4069 

(emphasis supplied). Finally, the Forest Service’s regulations state: “[a]n authorized 

officer shall reject any proposal . . . if, upon further consideration, the officer determines 

that: . . . the proposed use would not be in the public interest.” 36 C.F.R. 

§ 251.54(e)(5)(ii). The Forest Service Manual provides further guidance on 

§ 251.54(e)(5)(ii), directing that a proposed use should be authorized as “in the public 

interest” “only if . . . the proposed use cannot reasonably be accommodated off of 

National Forest System lands.” Forest Serv. Manual, Addendum to Pet’rs’ Br. 65–66 
30

(emphasis supplied). The Forest Service Manual further directs, “[d]o not authorize the 

use of National Forest System lands solely because it affords the applicant a lower cost or 

less restrictive location.” Id. at 66. 

We agree that the Forest Service violated its obligations under the NFMA and its 

own Forest Plans because it failed to demonstrate that the ACP project’s needs could not 

be reasonably met on non-national forest lands. The Forest Service’s ROD adopted and 

incorporated FERC’s alternative routes analysis in the EIS, but the EIS applied a different 

standard than the one imposed on the Forest Service by the NFMA and its own Forest 

Plans. In the EIS, FERC considered only whether a route alternative “confers a 

significant environmental advantage over the proposed route.” J.A. 1533. This is a 

significantly different standard than whether the proposed use “cannot reasonably be 

accommodated off of National Forest System lands.” Forest Serv. Manual, Addendum to 

Pet’rs’ Br. 65–66 (emphasis supplied); cf. Sierra Club, 897 F.3d at 604–05 (concluding 

that the Bureau of Land Management violated its MLA obligations where it failed to 

analyze whether alternative pipeline routes were “impractical,” as required by the 

Bureau’s regulations, and instead adopted an EIS that considered only whether an 

alternative route offered a “significant environmental advantage”). 

Accordingly, adopting FERC’s EIS was not sufficient for the Forest Service to 

fulfill its obligations under the Forest Service Manual and its own Forest Plans, and the 

Forest Service did not purport to undertake this required analysis anywhere else in the 

ROD.
31

The Forest Service asserts that it “determines project consistency only ‘with 

respect to standards and guidelines,’ not general forest planning ‘goals’ like 

Monongahela LS17.” Resp’t’s Br. 24 (quoting 2012 Planning Rule, 77 Fed. Reg. at

21,241). As an initial matter, the Forest Service regulations and the Forest Service 

Manual apply to both the GWNF and the MNF, so even if the court were to disregard the 

MNF goal cited by Petitioners, the proposed use of national forest land must still fit the 

Forest Service Manual’s definition of “in the public use,” which contains essentially the 

same requirement as the MNF goal: that the proposed use cannot be reasonably 

accommodated outside of the national forest. See Forest Serv. Manual, Addendum to 

Pet’rs’ Br. 65–66.

However, the Forest Service’s assertion about forest planning goals and objectives 

deserves additional discussion. The regulatory guidance quoted by the Forest Service --

from the preamble to the 2012 Planning Rule, 77 Fed. Reg. at 21,241 -- is a response by 

the Forest Service to a public comment regarding the 2012 Planning Rule’s consistency 

requirement, which states: 

The Forest Service policy was that consistency could only be 

determined with respect to standards and guidelines, or just standards, 

because an individual project alone could almost never achieve objectives 

and desired conditions. . . .

The Department continues to believe that the consistency requirement 

cannot be interpreted to require achievement of the desired conditions or 

objectives of a plan by any single project or activity, but we believe that we 

can provide direction for consistency to move the plan area toward desired 

conditions and objectives, or to not preclude the eventual achievement of 

desired conditions or objectives, as well as direction for consistency with 

the other plan components.
32

77 Fed. Reg. at 21,241 (emphasis supplied). In other words, even if the Forest Service is 

not required to conclude that an individual project alone meets a forest planning goal, it is 

not free to disregard the goal entirely -- as the Forest Service apparently wishes to do 

here.

The Forest Service was aware of its obligation to determine that the ACP project 

could not be reasonably accommodated on non-national forest land from the beginning of 

the project. Indeed, the Forest Service specifically cited to the Forest Service Manual and 

Forest Plan requirements in its initial scoping comments in response to FERC’s Notice of 

Intent to Prepare an EIS. See J.A. 3593 (“[T]he analysis must address Forest Service 

Manual direction that restricts special uses to those that cannot reasonably be 

accommodated on non-National Forest System lands (FSM 2703.2).”); id. at 3593–94

(stating that the GWNF Plan requires special use authorizations be “[l]imit[ed] to needs 

that cannot be reasonably met on non-[National Forest System] lands or that enhance 

programs and activities”). The Forest Service’s failure to undertake this analysis violated 

the NFMA. Accordingly, we remand to the Forest Service for proper analysis of whether 

the ACP project’s needs can be reasonably met on non-national forest lands, in 

compliance with the NFMA and the GWNF and MNF Plans.

B.

National Environmental Policy Act

As this court recently explained in Sierra Club v. Forest Service, Congress enacted 

NEPA “to reduce or eliminate environmental damage.” 897 F.3d at 590 (quoting Dep’t 

of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004)). “‘NEPA itself does not mandate 
33

particular results in order to accomplish these ends,’ but rather, ‘imposes only procedural 

requirements on federal agencies with a particular focus on requiring agencies to 

undertake analyses of the environmental impact of their proposals and actions.’” Id. 

(quoting Dep’t of Transp., 541 U.S. at 756–57).

NEPA requires that agencies consider alternatives to the proposed action, 40 

C.F.R. § 1502.14, and “take a hard look at environmental consequences,” Robertson v. 

Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation marks 

omitted). To that end, whenever a federal agency proposes to take a “major Federal 

action[] significantly affecting the quality of the human environment,” the agency must 

prepare a detailed EIS describing the likely environmental effects of the proposal, any 

unavoidable adverse environmental effects, and potential alternatives. 42 U.S.C. 

§ 4332(2)(C). Consideration of alternatives “is the heart of the [EIS].” 40 C.F.R. 

§ 1502.14.

In this case, FERC was the lead agency charged with issuing the EIS, and the 

Forest Service acted as a cooperating agency by assisting FERC to analyze the 

environmental impacts to 430 acres of national forest lands on the proposed ACP route. 

As a cooperating agency, the Forest Service may adopt FERC’s EIS only if it undertakes 

“an independent review of the [EIS]” and “concludes that its comments and suggestions 

have been satisfied.” 40 C.F.R. § 1506.3(c); see also Sierra Club, 897 F.3d at 590. It 

must also ensure that the EIS is “adequate” under NEPA regulations. 40 C.F.R. 

§ 1506.3(a). In reviewing an EIS, the court’s responsibility is to “determine whether the 

[agency] has considered the relevant factors and articulated a rational connection between 
34

the facts found and the choice made.” Sierra Club, 897 F.3d at 594 (quoting Balt. Gas & 

Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)).

Petitioners assert that the Forest Service violated NEPA by (1) failing to study 

alternative off-forest routes, and (2) adopting a FEIS that failed to take a hard look at 

landslide risks, erosion, and degradation of water quality.

1.

Study of Alternative Off-Forest Routes

As noted above, an agency may only adopt an EIS if it “meets the standards for an 

adequate statement” under the applicable regulations. 40 C.F.R. § 1506.3(a). One 

applicable regulation provides: 

If a [DEIS] is so inadequate as to preclude meaningful analysis, the agency 

shall prepare and circulate a revised draft of the appropriate portion. The 

agency shall make every effort to disclose and discuss at appropriate points 

in the draft statement all major points of view on the environmental impacts 

of the alternatives including the proposed action.

Id. § 1502.9(a) (emphasis supplied). Petitioners assert that FERC’s FEIS was inadequate 

because it failed to sufficiently study alternative pipeline routes for the ACP that avoided 

national forest lands. According to Petitioners, the Forest Service violated NEPA 

because it adopted FERC’s inadequate EIS without undertaking the required 

“independent review,” and because the FEIS did not satisfy the Forest Service’s earlier 

comments and suggestions on the DEIS. Id. § 1506.3(c).

In counter, the Forest Service asserts that once FERC had issued the Certificate of 

Convenience and Public Necessity, the choice before the Forest Service was simple: 

either approve the pipeline route as it was authorized by FERC or deny the right of way. 
35

According to the Forest Service, since FERC was responsible for analyzing alternative 

pipeline routes, the Forest Service reasonably relied on that alternatives analysis in 

adopting the FEIS.

The Forest Service frames Petitioners’ argument as an impermissible collateral 

attack on FERC’s actions, but that ignores the Forest Service’s obligation to 

“independent[ly] review” the EIS and ensure its comments and suggestions to the lead 

agency were satisfied before adopting it. 40 C.F.R. § 1506.3(c). Neither the Forest 

Service nor Atlantic points to evidence in the record to demonstrate that the Forest 

Service undertook the required independent review. To the contrary, the record suggests 

that they did not. Instead, the record reflects that at first the Forest Service strenuously 

objected to the lack of non-national forest route alternatives in the DEIS, but it eventually 

reversed course and adopted the FEIS even though the analysis of non-national forest 

alternatives was unchanged from the DEIS -- all in an effort to prevent Atlantic from 

having to obtain congressional approval for the project to cross the ANST.

From the beginning, the Forest Service made clear through its comments to FERC 

and Atlantic that the EIS would need to analyze non-national forest alternative routes and 

justify the necessity of any proposed route crossing of national forest lands. The Forest 

Service’s scoping comments for the ACP project noted:

It is . . . necessary to understand why any proposed routes (preferred or 

alternative) crossing [National Forest System] lands are selected over those 

not crossing [National Forest System] lands. Therefore, the EIS should 

contain a comparison of project effects for routes crossing [National Forest 

System] lands versus routes not crossing [National Forest System] lands. 

Discussions and other relevant information should also be provided to 

justify the necessity of any proposed route crossing [National Forest 
36

System] lands. . . . Comparisons of the alternatives should be based on 

analyses of site-specific impacts to resources potentially affected by the 

proposed project, which may not necessarily be correlated with the 

footprint of the proposed project.

J.A. 3593. 

Then, FERC’s DEIS indicated that “[a] significant factor in siting ACP was the 

location at which the pipeline would cross the ANST.” J.A. 3207. As the DEIS stated, 

crossing the ANST on NPS lands would require congressional approval. “Because of this 

legislative process” -- that is, to avoid obtaining congressional approval to cross the 

ANST on NPS lands -- “Atlantic considered locations where the ANST was located on 

[Forest Service lands], which significantly constrained the pipeline route and severely 

limits opportunities for avoiding and/or minimizing the use of [National Forest System] 

lands.” Id. at 3207–08 (emphasis supplied). Because of this, and even though ground 

resource surveys had not been conducted, FERC concluded that it “ha[d] not identified or 

received any information that suggests the shorter pipeline route through the National 

Forests has significantly greater impacts to sensitive resources than the alternative” that 

avoided national forest lands. Id. at 3208. In response to this analysis of off-forest routes 

in the DEIS, the Forest Service commented:

No analysis of a National Forest Avoidance Alternative has been 

conducted, and environmental impacts of this alternative have not been 

considered or compared to the proposed action. Therefore, the Forest 

Service cannot support the recommendation that the National Forest 

Avoidance Alternative be dropped from consideration. In our scoping 

comments, we requested that all alternatives, including a National Forest 

Avoidance Alternative, be fully addressed in regard to their feasibility and 

environmental effects. We hereby reiterate that request.
37

Id. at 2454. Further, in response to the DEIS’s assertion that in general, as the length of a 

pipeline route increases, the environmental impacts also increase, the Forest Service 

commented: “Miles of line do not necessarily equate to severity of the environmental 

impact. The nature of the resources to be impacted needs to be considered. The Forest 

Service has previously requested that such comparative information on impacts be 

obtained and considered for alternatives to the proposed action.” Id. at 2451.

Despite the Forest Service’s concerns regarding the lack of study of off-forest 

alternatives, the “National Forest Avoidance Route Alternatives” section in the FEIS is 

identical to the DEIS. Nevertheless, on the very same day that FERC issued the FEIS, 

the Forest Service released its draft ROD, which proposed adopting the FEIS (and, 

consequently, the unchanged alternatives analysis). Without explaining the Forest 

Service’s change of position from the scoping comments or its comments on the DEIS, 

the draft ROD states: “FERC’s evaluation concluded that the major pipeline route 

alternatives and variations do not offer a significant environmental advantage when 

compared to the proposed route or would not be economically practical.” J.A. 1411. The 

Forest Service’s discussion on this point was essentially identical in its response to 

objections filed to the draft ROD and in its final ROD.4

 4 The Forest Service’s response to objections filed to the draft ROD stated:

The Project Record shows consideration of alternatives that avoid National 

Forests. One such alternative would have increased the route by 43 miles to the 

south and another would have increased the route by 15 miles to the north. The 

FERC noted, as a general matter, environmental impacts increase as the length of 

a pipeline route increases. Furthermore, the FERC lacked information concluding 

(Continued)
38

The Forest Service asserts, “Petitioners present no record evidence that FERC did 

not” continue to analyze non-national forest alternatives following the Forest Service’s 

comments on the DEIS. Resp’t’s Br. 39. But no such analysis is apparent anywhere in 

the record, and most tellingly, neither the Forest Service nor Atlantic even attempt to 

identify evidence to demonstrate that FERC did anything to address the Forest Service’s 

concerns about off-forest alternative routes. What is apparent from the record is that: (1) 

the Forest Service repeatedly expressed concerns about the need to analyze alternative 

pipeline routes that avoided the national forests (particularly in the scoping comments, 

comments on the draft resource reports, and the DEIS); (2) FERC’s analysis of 

alternative pipeline routes remained unchanged from the DEIS to the FEIS, and there is 

no other evidence apparent from the record that FERC addressed the Forest Service’s 

concerns about off-forest alternative routes; and (3) the Forest Service never explains, in 

 

a shorter overall route through NFS lands would have significantly greater impacts 

on sensitive resources . . . . Therefore, it was concluded these alternatives would 

not provide a significant environmental advantage over a shorter route that passes 

through National Forests.

J.A. 676. Similarly, the final ROD stated:

The proposed crossing of the MNF and GWNF received a considerable amount of 

comment and criticism from stakeholders, and accordingly, resulted in a number 

of evaluated route alternatives and variations. FERC evaluated . . . several 

variations to avoid or minimize crossing of [Forest Service] and [NPS] lands. . . .

FERC’s evaluation concluded the major pipeline route alternatives and variations 

do not offer a significant environmental advantage when compared to the 

proposed route or would not be economically practical.

Id. at 48.
39

the ROD or elsewhere, how its concerns about off-forest alternative routes were 

assuaged. 

The chain of events surrounding the Forest Service’s sudden acquiescence to the 

alternatives analysis in the FEIS is similar to that in Sierra Club v. Forest Service, where 

we determined that the Forest Service had acted arbitrarily and capriciously in adopting 

the sedimentation analysis in the FEIS for a different pipeline project. See Sierra Club, 

897 F.3d at 594–96. Here, like in Sierra Club, “[g]iven the circumstances, we simply 

cannot conclude that the Forest Service undertook an independent review and determined 

that its comments and concerns were satisfied” when it seemingly dropped its demand 

that off-forest alternative routes be studied before the ACP was authorized without any 

further analysis. Id. at 595. In light of this, and particularly considering the Forest 

Service’s earlier skepticism that location decisions for the ACP were made solely to 

avoid congressional approval,5 we hold that adopting the unchanged alternatives analysis 

in the FEIS was arbitrary and capricious.

2.

Analysis of Landslide Risks, Erosion, and Degradation of Water Quality

Petitioners further contend that the Forest Service’s deficient analysis of landslide 

risks, erosion impacts, and water quality degradation from the ACP project violated 

 5 See, e.g., J.A. 3661 (“[T]he report should . . . not base all of the routing decisions for 

the [ANST] crossing on project timeline issues with getting [c]ongressional approval. 

The proposed location for crossing the [ANST] need[s] to be based on sound resource 

and compelling public interest determinations.”).
40

NEPA. Specifically, Petitioners assert that the Forest Service abandoned its request for 

ten site-specific stabilization designs prior to granting the SUP, which it previously stated 

were necessary to evaluate effects under NEPA, and instead accepted the two that 

Atlantic provided as “adequate” without explanation for this change in position. 

Additionally, Petitioners assert that Atlantic’s erosion and sedimentation mitigation plan 

had not been determined at the time the FEIS and ROD were issued. Thus, the Forest 

Service did not know if the mitigation measures it relied on to approve the project would 

actually be successful. As a result, Petitioners argue that the FEIS does not provide “a 

thorough investigation into the environmental impacts of [the] agency’s action.” Pet’rs’ 

Reply Br. 29 (quoting Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir. 

2005)). For its part, the Forest Service contends that it thoroughly analyzed the impacts 

of the proposed route on national forest lands, and that NEPA does not require an agency 

to formulate and adopt a complete mitigation plan before it can act.

As noted above, NEPA does not require the Forest Service to ensure 

“environment-friendly outcomes.” Nat’l Audubon Soc’y, 422 F.3d at 184. Rather, “an 

agency decision is acceptable even if there will be negative environmental impacts 

resulting from it, so long as the agency considered these costs and still decided that other 

benefits outweighed them. ‘NEPA merely prohibits uninformed -- rather than unwise --

agency action.’” Id. (quoting Robertson, 490 U.S. at 350–51 (citations omitted)). 

Nevertheless, an EIS must still “contain a detailed discussion of possible mitigation 

measures.” Robertson, 490 U.S. at 351. Further, NEPA requires “particular care” “when 
41

the environment that may be damaged is one that Congress has specially designated for 

federal protection,” such as national forests. Nat’l Audubon Soc’y, 422 F.3d at 186–87.

We conclude that the Forest Service violated NEPA by failing to take a hard look 

at the environmental consequences of the ACP project. The Forest Service expressed 

serious concerns that the DEIS lacked necessary information to evaluate landslide risks, 

erosion impacts, and degradation of water quality, and it further lacked information about 

the effectiveness of mitigation techniques to reduce those risks. 

Specifically, the record reflects that the Forest Service voiced concerns about (1) 

authorizing the SUP without ten site-specific stabilization designs to demonstrate the 

effectiveness of Atlantic’s BIC program; (2) the overly high efficiency rate of erosion 

control devices used in the sedimentation analysis (96 percent); (3) relying on the use of 

water bars as a mitigation technique, when Atlantic had not analyzed whether water bars 

would mitigate or exacerbate erosion effects during construction; and (4) Atlantic’s use 

of averaged versus episodic sediment calculations to analyze the water resource impacts 

from increases in sedimentation due to the ACP project.

However, the FEIS did not address any of these concerns; rather, it made clear that 

this incomplete and/or inaccurate analysis in the DEIS remained incomplete. The FEIS 

stated (among other examples): “slope instability/landslide risk reduction measures have 

not been completed or have not been adopted,” J.A. 1615; “[Atlantic is] currently 

working to provide documentation of the likelihood that their proposed design features 

and mitigation measures would minimize the risk of landslides in the project area,” id. at 

1616 (emphasis supplied); “specific [erosion] effects are unknown” and “it is unclear if 
42

erosion control and rehabilitation measures would meet the standards of the Forest 

Plan[s],” id. at 1659; and “water resource impacts from sedimentation are largely 

uncertain,” id. at 1663. 

Accordingly, the FEIS could not have satisfied the Forest Service’s concerns that 

the DEIS lacked necessary information to evaluate the environmental consequences of 

the pipeline. Indeed, the FEIS conceded that the Forest Service’s concerns remained 

unresolved. Nevertheless, as Atlantic’s deadlines drew near, the Forest Service 

disregarded these concerns and adopted the FEIS -- including its conclusions that 

landslide risks, erosion impacts, and degradation of water quality remained unknown --

the very same day FERC issued it. To support its decision to approve the project and 

grant the SUP, the Forest Service relied on the very mitigation measures it previously 

found unreliable. This was insufficient to satisfy NEPA, and did not constitute the 

necessary hard look at the environmental consequences of the ACP project.

a.

Landslide Risks

The Forest Service clearly explained its concerns about landslides, erosion, and 

pipeline safety and stability in its October 24, 2016 letter requesting the ten site-specific 

stabilization designs:

The route for the [ACP project] proposed by [Atlantic] would cross 

some very challenging terrain in the central Appalachians. Potentially 

difficult situations include steep slopes, presence of headwater streams, 

geologic formations with high slippage potential, highly erodible soils, and 

the presence of high-value natural resources downslope of high hazard 

areas. These hazards are exacerbated by high annual rates of precipitation 

and the potential for extreme precipitation events.
43

Similar hazards on other smaller pipeline projects in the central 

Appalachians have led to slope failures, erosion and sedimentation 

incidents, and damage to aquatic resources. Therefore, the [Forest Service] 

is concerned that crossing such challenging terrain with a much larger 

pipeline could present a high risk of failures that lead to resource damage.

J.A. 3379.

In addition to highlighting these concerns, the Forest Service’s October 24, 2016 

letter made clear that the ten selected sites were “merely representative sites,” required 

for the Forest Service to determine whether the ACP project could be permitted in the 

GWNF and MNF. J.A. 3379. In other words, the site designs were needed to aid the 

Forest Service in its decision whether to permit the pipeline at all. Accordingly, the 

Forest Service’s later decision to only require the designs prior to construction was not 

simply a question of timing. It meant the Forest Service approved the pipeline without 

information it previously determined was necessary to making its decision, and it did so 

without acknowledging, much less explaining, its change in position.

The Forest Service’s reversal is particularly puzzling considering the reason it 

requested the site-specific stabilization designs in the first place: to demonstrate that 

Atlantic’s BIC program could actually work in particular conditions, rather than simply 

being a “cookbook with generalities.” J.A. 2514. The Forest Service also conducted a 

literature review on Atlantic’s BIC incremental controls to attempt to determine the 

effectiveness of these measures. Far from proving the effectiveness of the BIC program, 

the literature review concluded: “[T]he majority of these BIC incremental controls are 

either too new to provide any real insight to the effectiveness on erosion control, 
44

especially on steep slopes, or there has not been any research to prove the effectiveness of 

these incremental controls for adequate erosion control.” Id. at 3703. 

Thus, despite its own well-documented concerns with Atlantic’s mitigation plans, 

the Forest Service abandoned its request for the eight site-specific stabilization designs 

and adopted the FEIS, all without science-based evidence of the BIC program’s 

effectiveness. This falls far short of NEPA’s hard look requirement, and the Forest 

Service’s brief, conclusory letter stating that the information provided by Atlantic was 

“adequate” is insufficient to show that the Forest Service’s concerns had been addressed 

as NEPA requires. J.A. 1881.

Perhaps nothing demonstrates the dangers of the Forest Service’s insufficient 

analysis of landslide risks clearer than the FEIS’s use of the Columbia Gas Transmission 

pipeline as an example of an existing pipeline in the Appalachian Mountains that safely 

crosses karst terrain. See, e.g., J.A. 1589, 1609 (“There are differences between ACP and 

corridor and the Columbia pipeline project and corridor, and so, there can be more 

potential for project-induced slope failures in the ACP corridor. But the decades of slope 

stability performance of the Columbia pipeline corridor on slopes generally similar to 

those along the ACP pipeline route is relevant information to consider.”). Significantly, 

during the briefing of this case, a landslide in Marshall County, West Virginia, caused the 

Columbia pipeline -- highlighted by the Forest Service for its safety and stability -- to 
45

rupture and explode.6

 Clearly, the Forest Service’s concerns about landslide risks and 

pipeline safety highlighted in its October 24, 2016 letter deserve serious consideration, 

for the protection of both the environment and the public. 

b.

Erosion Impacts and Degradation of Water Quality

In adopting the FEIS and approving the pipeline, the Forest Service concluded that 

because of “mitigation measures, impacts on groundwater and surface waters will be 

effectively minimized or mitigated.” J.A. 25. However, as explained above, the Forest 

Service had previously expressed serious concerns about the extensive erosion and 

sedimentation that the ACP project could cause, and it additionally questioned the 

mitigation techniques that Atlantic relied on to reduce those impacts. This is particularly 

true regarding the overly high efficiency rate of erosion control devices used in the 

sedimentation analysis (96 percent), the use of water bars as a mitigation technique, and 

the use of averaged versus episodic sediment calculations to analyze water resource 

impacts in the sedimentation analysis. Despite these concerns, and the FEIS’s conclusion 

that “specific [erosion] effects [remained] unknown,” id. at 1659, the Forest Service 

 6 See, e.g., Anya Litvak, Landslide Caused West Virginia Pipeline Explosion, 

TransCanada Reports, Pittsburgh Post-Gazette (July 11, 2018), http://www.postgazette.com/business/powersource/2018/07/11/Landslide-caused-pipeline-explosionColumbia-Gas-reported/stories/201807100176. We can take judicial notice of this fact 

because it “is not subject to reasonable dispute” and “can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 

Evid. 201(b).
46

nevertheless relied on the incomplete analysis in the FEIS and disregarded its concerns 

about the effectiveness of the mitigation techniques.

For example, in the draft biologic evaluation, Atlantic asserted that installation of 

erosion control devices would “reduce erosion by about 96 percent.” J.A. 2633. The 

Forest Service criticized this conclusion in its March 10, 2017 comments to the draft 

biologic evaluation, stating, “Use of lab testing and efficiency rates are inappropriate for 

steep slope pipeline construction. Update model with more conservative assumptions 

about containment efficiencies. Document the literature references that apply to 

efficiencies in the field, particularly mountainous terrain in WV and VA.” Id. at 2357. 

However, Atlantic did not comply with the Forest Service’s request, and the 96 

percent erosion control efficiency rate remained in Atlantic’s August 2017 Soil Erosion 

and Sedimentation Modeling Report. See J.A. 909 (“Installation of [erosion control 

devices] was predicted to reduce erosion by about 96 percent.”). We note that this report 

was issued five months after the Forest Service directed Atlantic to update its erosion 

efficiency rate, one month after the Forest Service issued its draft ROD, just two months 

before the final version of the COM Plan was issued, and only three months before the 

Forest Service issued the final ROD. Accordingly, we see no evidence in the record that 

the Forest Service’s concerns regarding the 96 percent erosion control efficiency rate 

were ever resolved; nonetheless, the Forest Service ultimately relied on this figure to 

determine that Atlantic’s proposed mitigation measures would effectively reduce erosion 

and sedimentation impacts from the ACP project.
47

During oral argument, Atlantic claimed that the Forest Service’s concern about the 

96 percent efficiency rate was resolved because Atlantic agreed not to use silt fences as a 

mitigation technique in certain areas, which it claims were the cause of the “overly 

optimistic” efficiency rate. Oral Argument at 37:50–39:41. As counsel for Atlantic 

stated:

The Forest Service never accepted the 96 percent efficiency. Indeed, that 

model was predicated on a standard erosion and sediment control device 

called the silt fence. Instead of debating . . . over the percent effectiveness 

of the silt fence, the Forest Service made a much more direct and 

compelling move, which was to prohibit the use of silt fences in the areas 

over which it had concern. . . Atlantic committed not to use the silt fences 

that were the subject of the overly optimistic erosion sediment model.

Id.

As an initial matter, we note that the Soil Erosion and Sedimentation Modeling 

Report attributes the 96 percent erosion control efficiency rate to all erosion control 

devices “such as silt fences, waterbars, and mulch application,” not just silt fences. J.A. 

929. Additionally, the final draft of the COM Plan is riddled with uses of silt fences as 

proposed mitigation techniques. See, e.g., id. at 303, 409, 473, 475, 586, 587. 

However, even if Atlantic is correct that it committed not to use silt fences in 

certain areas, this is beside the point. The use of silt fences was not the problem. The 

problem, as the Forest Service itself pointed out, was assuming that these devices would 

function nearly perfectly to reduce erosion and sediment, despite a wealth of evidence to 

the contrary. This assumption remained in the August 2017 Soil Erosion and 

Sedimentation Modeling Report. See J.A. 908 n.2 (“The effectiveness predicted by the 

model is influenced by slope, soil, groundcover, and type of erosion control device; the 
48

model assumes perfect installation, soil retention, and maintenance.” (emphasis 

supplied)). This assumption infected the sedimentation model -- the model that produced 

the “200 to 800 percent above baseline erosion” estimate cited in in the ROD. Id. at 25. 

Crucially, we can identify no other more conservative efficiency rate used to 

correct the sedimentation model which drove the Forest Service’s erosion and 

sedimentation analysis. Indeed, the use of the 96 percent efficiency rate in the August 

2017 Soil Erosion and Sedimentation Modeling Report, which was issued only three 

months before the Forest Service’s final ROD, suggests that the Forest Service’s concern 

with Atlantic’s overly high efficiency rate for erosion control devices was never resolved. 

See J.A. 908–09 (“Installation of [erosion control devices] was predicted to reduce 

erosion by about 96 percent.”).

Additionally, the FEIS relied on the use of water bars as a mitigation technique 

that would reduce the environmental impacts of the ACP project. See J.A. 1662 (“The 

use of water bars (i.e., slope breakers) was assumed on long slopes . . . .”). The Forest 

Service had previously stated in its comments on Atlantic’s updated biologic evaluation 

that further analysis was needed to determine whether water bars would be effective: 

“Slope breaker locations relative to pertinent habitat features need to be disclosed[.] It is 

important to be sure that they are not potentially directing water into habitats (in which 

case they would actually do more harm than good).” Id. at 2337. Nevertheless, the FEIS 

candidly acknowledged that this further analysis was never done: 

[W]ater bars create concentrated flows where they discharge adjoining off 

right-of-way areas. The [Forest Service] has stated that Atlantic has not 

assessed how or whether the adjoining areas can receive concentrated 
49

flows, or whether measures would be implemented to allow these areas to 

safely receive and convey the concentrated flows. In addition, the slopes to 

be encountered in the MNF and GWNF would require several water bars to 

be “stacked” along their length, creating multiple points of discharge. The 

[Forest Service] has stated the potential impacts of multiple points of 

concentrated discharges onto the adjoining areas has not been assessed.

Id. at 1663 (emphasis supplied). Once again, the Forest Service adopted the FEIS

(including its use of water bars as a mitigation technique), issued its ROD, and granted 

the SUP based on an erosion and sedimentation analysis using water bars as a mitigation 

technique, despite the clear evidence in the record that (1) the Forest Service had 

concerns with this technique; (2) the Forest Service’s concerns were not resolved in the 

FEIS; and (3) the effectiveness of water bars for this project was never analyzed.

Finally, the record further reflects that the Forest Service believed Atlantic used an 

incorrect calculation to analyze how sedimentation from the ACP project would impact 

aquatic species. In its draft biologic evaluation, Atlantic analyzed the total sediment that 

would erode a stream in a year divided by the volume of water that would flow through 

the stream in a year -- to create an average sediment level over an entire year -- rather 

than analyzing sediment levels in terms of discrete episodic events, where the sediment 

levels vary based on precipitation events that cause larger amounts of erosion to enter the 

stream. In other words, Atlantic employed a simplistic (and unrealistic) calculation that 

made in-stream sedimentation levels look much lower than they would be during 

construction. Of note, the Forest Service sharply criticized this approach in its comments 

on the draft biologic report:

This entire paragraph has false rationale and needs to be deleted or 

modified extensively. Erosion and sediment transport to streams cannot be 
50

averaged evenly over a year, rather it happens in discrete episodic events. 

It is not appropriate to minimize impacts by making a comparison of total 

load evenly spread over time. The point of the load calculation is to 

address impacts to sensitive aquatic species which are impacted by flow 

and timing of sediment during these erosion events. 

J.A. 2358. However, despite the Forest Service’s concerns with Atlantic’s calculations in 

the sedimentation analysis, the record does not indicate that Atlantic ever updated its 

calculation to reflect actual conditions. Nevertheless, the Forest Service adopted 

Atlantic’s updated biologic report and the FEIS, and it concluded that erosion and 

sedimentation from the ACP project would not substantially adversely affect sensitive 

aquatic species.

The Forest Service argues -- correctly -- that NEPA does not require a fully 

formed mitigation plan to be in place. As this court has noted, “it would be inconsistent 

with NEPA’s reliance on procedural mechanisms -- as opposed to substantive, resultbased standards -- to demand the presence of a fully developed plan that will mitigate 

environmental harm before an agency can act.” Robertson, 490 U.S. at 353. However, in 

this case, the Forest Service adopted the FEIS and issued its draft ROD in reliance on a 

mitigation plan that had not been established, and one that, as demonstrated by the Forest 

Service’s own concerns, had not been proven effective. 

To satisfy NEPA in this case, the Forest Service needed to resolve its own 

concerns with the EIS -- which, for the reasons we have explained, it did not do -- and it 

needed to have a reasonable basis for concluding that the mitigation plan, once fully 

formed, would be effective. Here, the Forest Service relied on the generalities of the BIC 

program and other techniques proposed by Atlantic to achieve particular mitigating 
51

results, with neither actual site designs nor science-based evidence demonstrating such 

results were likely. This is precisely the sort of uninformed agency action that NEPA 

prohibits. See Nat’l Audubon Soc’y, 422 F.3d at 184. 

Accordingly, we cannot conclude that the Forest Service took a hard look at the 

environmental consequences of its decision. Rather, the record before us readily leads to 

the conclusion that the Forest Service’s approval of the project “was a preordained

decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this 

outcome,” despite that the Forest Service lacked necessary information about the 

environmental impacts of the project. Nat’l Audubon Soc’y, 422 F.3d at 183 (concluding 

that the U.S. Navy “reverse engineered” its EIS to achieve a particular outcome, and 

although “[t]he deficiencies in each area of the Navy’s analysis would not, on their own, 

be sufficient to invalidate the EIS,” “a review of the various components of the EIS taken 

together indicates that the Navy did not conduct the ‘hard look’ that NEPA requires.”). 

Pursuant to NEPA, we conclude the Forest Service acted arbitrarily and 

capriciously in adopting the FEIS and granting the SUP. Upon remand, the Forest 

Service should explain its decision that receiving only two of the eight site-specific 

stabilization designs was “adequate” to determine the environmental effects of the ACP 

project, and it should also explain how it took a “hard look” at the erosion, sedimentation, 

and water quality issues discussed here considering the Forest Service’s numerous 

concerns that were not addressed in the FEIS. If supplemental analysis is needed, 

particularly regarding the effectiveness of mitigation strategies relied on in the COM 

Plan, the Forest Service should perform that analysis as well.
52

C.

Mineral Leasing Act

1.

The MLA authorizes the “Secretary of the Interior or appropriate agency head” to 

grant gas pipeline rights of way across “Federal lands.” 30 U.S.C. § 185(a). As relevant 

here, “Federal lands” means “all lands owned by the United States except lands in the 

National Park System.” 30 U.S.C. § 185(b)(1) (emphasis supplied). Pursuant to the Park 

Service’s Organic Act, land in the National Park System includes “any area of land and 

water administered by the Secretary [of the Interior]” through NPS. 54 U.S.C. § 100501. 

Congress designated the ANST as a National Scenic Trail administered by the 

Secretary of the Interior, who delegated that duty to NPS. See 16 U.S.C. § 1244(a)(1). 

Accordingly, the ANST is land in the National Park System. The parties are generally in 

agreement about this; after NPS informed FERC that “the entire [ANST] corridor [is] 

part of the ANST park unit” and a “unit” of the National Park System, J.A. 1849, 3186, 

FERC’s FEIS concluded that NPS is “the lead federal agency for the administration of 

the entire ANST” and that the ANST “is a ‘unit’ of the national park system,” J.A. 1794. 

The parties also do not dispute that NPS indicated it does not have authority under the 

MLA to grant pipeline rights of way across the ANST. However, the parties disagree 

about whether the Forest Service has the authority to grant such rights of way across the 

ANST. The FEIS concluded:

The ANST is a unit of the National Park system; however, the lands 

acquired and administered by the [Forest Service] for the ANST are 

[National Forest System] lands and subject exclusively to [Forest Service] 
53

regulations and management authority. . . . [A]n authorization from the 

NPS is not required for Atlantic’s proposed ANST crossing on [National 

Forest System] lands.”

Id. at 1489 (emphasis supplied). 

The Forest Service asserts that the MLA authorizes the Forest Service to grant 

pipeline rights of way on Forest Service land traversed by the ANST. Specifically, the 

Forest Service argues that the National Trails System Act, which provides for the 

administration of national trails like the ANST, distinguishes between the “overall” 

administration of the ANST (with which NPS is charged) and administration of the 

ANST’s underlying lands (most of which are under the jurisdiction of other agencies, like 

the Forest Service). Pursuant to this reading of the National Trails System Act, the Forest 

Service asserts, the MLA authorizes the Forest Service to grant pipeline rights of way on 

portions of the ANST traversing lands administered by the Forest Service.

The Forest Service largely relies on the following language from the National 

Trails System Act to support this argument:

The Secretary of the Interior or the Secretary of Agriculture as the case 

may be, may grant easements and rights-of-way upon, over, under, across, 

or along any component of the national trails system in accordance with the 

laws applicable to the national park system and the national forest system, 

respectively: Provided, That any conditions contained in such easements 

and rights-of-way shall be related to the policy and purposes of this chapter.

16 U.S.C. § 1248(a) (emphasis supplied). The MLA, the Forest Service asserts, prevents 

NPS from authorizing pipeline rights of way across components of the ANST on 

National Park System lands, but it does not prevent the Forest System from authorizing 

pipeline rights of way across components of the ANST on National Forest System lands. 
54

In any event, the Forest Service concedes that its position on this issue is entitled to no 

judicial deference. See Resp’t’s Surreply Br. 12–13.

The problem with the Forest Service’s argument is it misreads both the MLA and 

the National Trails System Act. The MLA specifically excludes lands in the National 

Park System from the authority of the Secretary of the Interior “or appropriate agency 

head” to grant pipeline rights of way. See 30 U.S.C. §§ 185(a), 185(b)(1). In other 

words, the MLA concerns the land, not the agency. The FEIS concluded, and the parties 

agree, that the ANST is a unit of the National Park System. Accordingly, even if the 

Forest Service were the “appropriate agency head” in this instance, it could not grant a 

pipeline right of way across the ANST pursuant to the MLA. Interpreting the MLA as 

the Forest Service argues would give the Forest Service more authority than NPS on 

National Park System land. This defies logic.

Further, the Forest Service is not the “appropriate agency head” for the ANST. 

The Forest Service’s arguments notwithstanding, the National Trails System Act does not 

distinguish between various levels of administration of the ANST (“overall” versus by 

“jurisdiction”); rather, as NPS explained to FERC, the Act is clear that the Secretary of 

the Interior administers the entire ANST, while “other affected State and Federal 

agencies,” like the Forest Service, manage trail components under their jurisdiction. See 

16 U.S.C. §§ 144(a), 1246(a). Indeed, 16 U.S.C. § 1246(a) clearly distinguishes between 

trail administration and management:

The Secretary charged with the overall administration of a trail pursuant to 

section 1244(a) of this title shall, in administering and managing the trail, 

consult with the heads of all other affected State and Federal agencies. 
55

Nothing contained in this chapter shall be deemed to transfer among 

Federal agencies any management responsibilities established under any 

other law for federally administered lands which are components of the 

National Trails System.

§ 1246(a)(1)(A) (emphasis supplied). 

Section 1248(a) of the Act does not transfer administration responsibilities of the 

ANST to the Forest Service simply because the Forest Service manages land underlying 

components of the ANST. Although it is true that § 1248(a) does permit the Secretary 

charged with overall administration of a national trail -- “[t]he Secretary of the Interior or 

the Secretary of Agriculture as the case may be” -- to grant easements and rights of way 

in accordance with the laws applicable to either the National Park System or the National 

Forest System, in this case, the applicable administrator is the Secretary of the Interior, 

not the Secretary of Agriculture, and the applicable laws are those of the National Park 

System. See 16 U.S.C. § 1244(a)(1) (“The Appalachian Trail shall be administered 

primarily as a footpath by the Secretary of the Interior, in consultation with the Secretary 

of Agriculture.”). Other national trails are administered by the Secretary of Agriculture 

and are subject to laws applicable to the National Forest System -- the ANST is simply 

not one of those trails. See, e.g., § 1244(a)(2), (5), (13), (14), (27), (30) (charging the 

Secretary of Agriculture with overall administration of the Pacific Crest Trail, the 

Continental Divide National Scenic Trail, the Florida National Scenic Trail, the Nez 

Perce National Historic Trail, the Arizona National Scenic Trail, and the Pacific 

Northwest National Scenic Trail). 
56

The Forest Service’s arguments to the contrary are unavailing, and the Forest 

Service does not have statutory authority to grant pipeline rights of way across the ANST 

pursuant the MLA. The Forest Service’s ROD and SUP granting this right of way are, 

accordingly, vacated.

2.

The Forest Service also argues that Petitioners have no standing to bring this 

challenge because they allege no harm traceable to the right of way grant. For the 

reasons this court explained in Sierra Club v. U.S. Department of the Interior, this 

standing argument fails. See 899 F.3d 260, 282–85 (4th Cir. 2018). Petitioners’ alleged 

injuries are fairly traceable to the Forest Service because “without [the Forest Service’s] 

grant of a right of way, the pipeline could not have been authorized in its currently 

proposed form. It therefore cannot be said that Petitioners’ injuries are ‘the result of the 

independent action of some third party not before the court.’” Id. at 284 (quoting Bennett 

v. Spear, 520 U.S. 154, 168–69 (1997)).

Furthermore, the Forest Service asserts that Petitioners waived their argument that 

the Forest Service lacks statutory authority to grant rights of way across the ANST 

because Petitioners failed to adequately raise that argument before the Forest Service. In 

comments on the draft ROD, Petitioners objected to the agency’s failure to consider nonnational forest routes for the pipeline and the viability of Atlantic’s proposed method for 

crossing the ANST. Petitioners did not challenge the Forest Service’s authority to issue 

the right of way in the first instance.
57

Those challenging agency actions, such as Petitioners here, are generally required 

to raise their arguments to the agency during the administrative review process and to 

exhaust their administrative remedies before this Court may consider their arguments. 

See 7 U.S.C. § 6912(e). Nonetheless, the draft ROD -- to which the Forest Service 

claims that Petitioners should have lodged their MLA objection -- nowhere mentions that 

the Forest Service was contemplating granting right of way through lands administered 

by NPS, or the ANST, in particular. To the contrary, the draft ROD characterizes the 

decision to be made as “[W]hether to authorize the use and occupancy of NFS lands for 

[Atlantic] to construct, operate, maintain, and eventually decommission a natural gas 

pipeline that crosses NFS lands administered by the MNF and GWNF.” J.A. 1378 

(emphasis added). 

Because (1) the draft ROD purported to be considering granting right of way 

through only Forest Service “lands administered by the MNF and GWNF” and (2) the 

FEIS, upon which the draft ROD relied, stated that NPS “administered” the entire ANST 

and that the entire ANST is a “unit” of the National Park System, there was no reason for 

Petitioners, or any other public commenter, to believe that the ROD or the SUP would 

grant right of way across the ANST. To be sure, Petitioners may have been on notice 

from the FEIS that the pipeline would require a right of way across the ANST from some 

agency at some point, but Petitioners had no way to know that such right of way would 

be granted by the Forest Service through the ROD. Indeed, the plain language of the 

SUP authorizes Atlantic “to use or occupy” only “National Forest System lands in the 

[MNF] and the [GWNF] of the National Forest System.” Put simply, the Forest Service 
58

never notified the public that it intended to grant Atlantic right of way through a unit of 

the National Park System like the ANST.

Furthermore, and significantly, the draft ROD nowhere mentions that the Forest 

Service intended to rely on the MLA as the basis of its authority to grant the right of way 

across the ANST. Indeed, regarding the MLA, the FEIS stated only that separate, 

congressional approval would be required if NPS were the agency issuing the right of 

way. See, e.g., Bowen v. City of New York, 476 U.S. 467, 482–87 (1986) (refusing to 

enforce exhaustion requirement when plaintiffs could not have been expected to 

administratively “attack a policy they could not be aware existed” (internal quotation 

marks omitted)); Beth V. v. Carroll, 87 F.3d 80, 83 (3d Cir. 1996) (excepting plaintiff 

from statutory exhaustion requirement when he “was given no prior notice or opportunity 

to object” and requiring exhaustion would be “futile”).

Moreover, the question of whether the MLA authorized the Forest Service to issue 

the SUP is a purely legal question that this Court may answer without the benefit of the 

Forest Service’s expertise. Our sister courts have recognized an exception to the 

administrative exhaustion requirement for such legal issues. See Bartlett v. U.S. Dep’t of 

Agric., 716 F.3d 464, 474 (8th Cir. 2013); Vt. Dep’t of Pub. Serv. v. United States, 684 

F.3d 149, 159–60 (D.C. Cir. 2012); Beth V., 87 F.3d at 88. Under the legal question 

exception, a party’s failure to exhaust administrative remedies is excused if the issues 

“are legal questions which are not suitable for administrative resolution and are more 

properly resolved by the courts.” Bartlett, 716 F.3d at 474 (citation omitted). This 

exception is narrow. See id.; 7 West’s Fed. Admin. Prac. § 8226 (2018) (“[C]ourts have 
59

plenary power over questions of law, but usually legal questions must first be presented 

to the agency.”). Nonetheless, when the agency has no expertise in the issue, and no 

factual disputes must be resolved, the question may be ripe for judicial review 

notwithstanding a party’s failure to exhaust its administrative remedies. See Ace Prop. 

and Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 1001 (8th Cir. 2006); see also 

EEOC v. Seafarers Int’l Union, 394 F.3d 197, 201 (4th Cir. 2005) (discussing exhaustion 

exception for legal issues and stating that “courts have limited it to issues that are 

quintessentially legal and fail to implicate the agency’s expertise in any meaningful 

manner” (citation omitted)).

The issue of whether the Forest Service had authority under the MLA to issue a 

right of way across the ANST is a question of statutory interpretation. Such a question is 

the peculiar province of the courts. Indeed, “[t]he judiciary is the final authority on 

issues of statutory construction . . . .” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 

Inc., 467 U.S. 837, 843 n.9 (1984). And the Forest Service has pointed to no factual 

disputes that must otherwise be resolved before the Court may determine the scope of the 

agency’s authority under the MLA.

Accordingly, because (1) Petitioners were not put on notice that the right of way 

across the ANST would be granted by the Forest Service through the ROD; (2) the Forest 

Service gave no hint of the legal authority that it would claim in issuing the SUP during 

the administrative review process; and (3) the Forest Service’s authority to issue rights of

way pursuant to the MLA is a purely legal question, we decline to find that Petitioners 
60

were required to exhaust their administrative remedies in connection with their MLA 

argument.

IV.

We trust the United States Forest Service to “speak for the trees, for the trees have 

no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the 

necessary conclusion that the Forest Service abdicated its responsibility to preserve 

national forest resources. 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. 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.

PETITION FOR REVIEW GRANTED,

VACATED AND REMANDED