A three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments last Friday, September 28, on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP). The first case challenged the December 13 decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act). The second case challenged the decisions of the U.S. Forest Service (NFS) to amend the Forest Plans of the Monongahela National Forest (MNF) and the George Washington National Forest (GWNF) and to accordingly issue a Special Use Permit for the ACP to cross the two forests. The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the challenges appeared in the September 21 ABRA Update and includes links to each brief filed with the Court.
In the Forest Service case, the presiding judge noted that the Forest Service had been challenging ACP’s ability to prove it could build the pipeline across steep mountain terrain without causing serious erosion problems. He noted that the record of correspondence and emails preceding the NFS decision indicated that a satisfactory response from the company had not been forthcoming. Then, suddenly in July 2017, the NFS issued a draft amendment to the Forest Plans of the MNF and GWNF and proceeded to approve the requested Special Use Permit. The judge inquired repeatedly of the attorney representing the NFS what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge re-ask the question repeatedly, finally to thundering: “Who’s running the train station? Is it the private company?” It was a riveting moment. For more, see the two Richmond Times Dispatch articles by Michael Martz, linked below in In the News.
A recording of last Friday’s oral arguments is available on the Court’s website. For the Forest Service case, click here; for the 401 case, click here.