A federal appeals court in Virginia dealt a serious blow late last week to a pipeline looking to cross the Appalachian Trail. The judge, out of Virginia’s U.S. Court of Appeals for the 4th Circuit, wrote a withering decision to reject a permit to cross the scenic pathway, and accused the Forest Service, the agency that issued the permit, of forgetting to do its job. The judge even added a pithy Dr. Seuss quote.
“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,’” the U.S. Court of Appeals for the 4th Circuit wrote in its decision. (You might remember that quote from Dr. Seuss’ The Lorax.) The decision was scathing, and practically accused the Forest Service of working on the pipeline’s behalf. The case also opened a fascinating peephole into how the agencies we count on to protect wild lands are looking the other way when it comes to energy profits.
The Atlantic Coast Pipeline is a $7 billion project, led by Dominion Energy. It would bury a 605-mile line from around Clarksburg, West Virginia, over the AT and south toward Fayetteville, North Carolina, crossing two national forests along the way. As it breached the Appalachian mountains, it would climb steep ridgelines that would need to be blasted flat. Through the George Washington and Monongahela national forests, crews would also need to cut a 125-foot wide tunnel of forest, 50 feet of which would have to be kept clear for as long as the gas flowed. And on the AT, as hikers tried to lose themselves in Virginia’s wilderness, they would see the bare corridor of trees below and walk beside a stubby yellow marker that cautioned, “Warning, Gas Pipeline.”
For all those reasons, going back to 2015, the Forest Service seemed hesitant to sign off on the project. Then earlier this year it had a sudden change of heart. So what changed?
That’s what the judge wondered, too.
Back in 2016 the Forest Service appeared to think it was nearly impossible to lay the 42-inch diameter natural gas line safely over the mountains. “The Forest Service has seen slope failures on lesser slopes and would be able to provide examples,” the agency told owners in 2016.
Along with the safety of the project, the Forest Service worried about the contamination of local aquifers, destroying sensitive wetlands, and the animal habitat in the pipeline’s path. One of those was home to the northern long-eared bat, which is protected by the Endangered Species Act. The Atlantic Coast builders reasoned that the permanent gully of cleared trees could make for good bat feeding grounds. The Forest Service didn’t seem too amused with this theory: “A potential increase in foraging habitat (which is not really proven here) does not offset the long-term loss of good roosting habitat… .” In short, nice try.
There was also the question of whether or not the Forest Service had the right to permit the pipeline to cross the AT. It’s a National Scenic Trail, which means it’s part of the National Park System. At certain points, the Forest Service does manage the trail, but it’s still technically NPS ground. And because pipelines are outlawed in national parks, to run one across NPS land should take an act of Congress.
In October 2016, the Forest Service told pipeline builders they’d need to submit ten alternative routes. The company only submitted two. And to dismiss concerns about slides, the owners pointed to another project, the Columbia Gas Transmission Pipeline, a 12,000-mile network that also cross the Appalachians in West Virginia.
No matter, though, because in the spring of 2017 the Forest Service said it didn’t need to see the alternative routes. Atlantic Coast Pipeline would have its permit to cross the AT through George Washington and Monongahela national forests.
What seemed to have changed, most obviously, was the administration soon to be occupying the White House. Two days after the 2016 election, Atlantic Coast’s vice president of construction reached out in an email to the U.S. Department of Agriculture, which oversees the Forest Service, saying: “Thank you very much for your offer to identify the appropriate point of contact within the new Administration. We think that would be very helpful … .”
Then the company paid the Forest Service a visit. An internal agency email chain, provided to Outside by the Southern Environmental Law Center, which brought the suit against the pipeline, shows how that played out.
On December 20, 2016, the Forest Service Associate Deputy Chief Glenn Casamassa wrote: “Last Wednesday the folks from Dominion and their counsel came in to visit me on ACP. They were interested in the syncing up process timelines. Most significant concern was related to route location and concerns around soil instability… .”
A doubtful supervisor at Monongahela National Forest wrote back, saying that all the slope analysis he’d seen didn’t look so good. “The intent is to demonstrate that we can actually permit a pipeline on these slopes and have a reasonable chance of keeping the pipeline on the mountain and keep the mountain on the mountain.” He added: “I'm not optimistic.”
The next day the pipeline builders emailed to the Forest Service its desired construction and permitting timeline. By the end of that day, the Forest Service’s Eastern Regional Director, Kathleen Atkinson, had chimed in on the email chain, seeming a bit confused by the sudden change.
“I know it doesn’t sync up with esa process,” Casamasas wrote Atkinson that afternoon. “We’ll have to set up some time next week to discuss further.”
And just like that a pipeline was born.
The Southern Environmental Law Center, along with several other nonprofits, sued to reject the permit. And after seeing this email chain and the Forest Service’s about face, a judge called the agency’s decision sudden and mysterious, made to “meet a private pipeline company’s deadlines.” During the case, there was also a coincidence almost too perfect. A portion of the Columbia Gas Transmission Pipeline, the example held up by Atlantic Coast as a great success, ruptured and exploded because of a landslide. You can almost see the griping Lorax look down from a hill above, shaking his head in smug disappointment.
The pipeline builders have appealed the court’s decision to reject the permit. A spokesman wrote to Outside saying, “We are confident we will prevail.”
A senior attorney with the Southern Environmental Law Center, DJ Gerken, tells Outside that winning this kind of appeal is very unlikely. “It doesn’t matter what an administration’s priorities are,” Gerken says. “There are still rules Forest Service has to follow.”
Perhaps. But as long as the Forest Service is speaking up for the energy industry instead of trees, the pipeline will have it all that much easier.