Wild Va. v. U.S. Forest Serv.

24 F.4th 915

WILD VIRGINIA; Sierra Club; Appalachian Voices; Wilderness Society; Preserve Craig ; Save Monroe; Indian Creek Watershed Association, Petitioners,

v.UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Jim Hubbard, in his official capacity as Under Secretary for Natural Resources and Environment, United States Department of Agriculture ; Ken Arney, in his official capacity as Regional Forester of the Southern Region, Respondents,Mountain Valley Pipeline, LLC, Intervenor.

Cherokee Forest Voices ; Georgia ForestWatch; MountainTrue; The Clinch Coalition ; Virginia Wilderness Committee, Amici Supporting Petitioner.

American Forest Resource Council; Black Hills Forest Resource Association; Colorado Timber Industry Association; Federal Forest Resource Coalition ; Intermountain Forest Association; Montana Wood Products Association, Amici Supporting Respondent.

Wild Virginia; Sierra Club; Appalachian Voices; The Wilderness Society; Preserve Craig ; Save Monroe; Indian Creek Watershed Association, Petitioners,

v.United States Bureau of Land Management, an agency of the U.S. Department of Interior; Deb Haaland, in her official capacity as Secretary of the Interior; Mitchell Leverette, in his official capacity as State Director, Bureau of Land Management, Eastern States, Respondents,Mountain Valley Pipeline, LLC, Intervenor.

Cherokee Forest Voices ; Georgia ForestWatch; MountainTrue; The Clinch Coalition ; Virginia Wilderness Committee, Amici Supporting Petitioner,

American Forest Resource Council; Black Hills Forest Resource Association; Colorado Timber Industry Association; Federal Forest Resource Coalition ; Intermountain Forest Association; Montana Wood Products Association, Amici Supporting Respondent.

No. 21-1039

No. 21-1082

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2021

Decided: January 25, 2022

ARGUED: Nathan Matthews, SIERRA CLUB, Oakland, California, for Petitioners. Brian C. Toth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Donald B. Verrilli, Jr., MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Intervenor. ON BRIEF: Ankit Jain, SIERRA CLUB, Washington, D.C.; Derek O. Teaney, Benjamin Luckett, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg, West Virginia, for Petitioners Wild Virginia, Sierra Club, Appalachian Voices, The Wilderness Society, Preserve Craig, Save Monroe, and Indian Creek Watershed Association. William J. Cook, Special Counsel, CULTURAL HERITAGE PARTNERS, PLLC, Washington, D.C., for Petitioner Monacan Indian Nation. Jean E. Williams, Acting Assistant Attorney General, Todd Kim, Acting Assistant Attorney General, Justin D. Hemminger, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael D. Smith, Office of the Solicitor, UNITED STATES DEPARTMENT OF THE INTERIOR, Washington, D.C.; Sarah Kathmann, Office of the General Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE, Washington, D.C., for Respondents. George P. Sibley, III, J. Pierce Lamberson, Brian R. Levey, HUNTON ANDREWS KURTH LLP, Richmond, Virginia; Sandra A. Snodgrass, HOLLAND & HART LLP, Denver, Colorado; Thomas C. Jensen, Stacey M. Bosshardt, PERKINS COIE LLP, Washington, D.C., for Intervenor. J. Patrick Hunter, Asheville, North Carolina, Spencer Gall, Kristin Davis, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for Amici Cherokee Forest Voices, Georgia ForestWatch, MountainTrue, The Clinch Coalition, and Virginia Wilderness Committee. Lawson E. Fite, AMERICAN FOREST RESOURCE COUNCIL, Portland, Oregon, for Amici American Forest Resource Council, Black Hills Forest Resource Association, Colorado Timber Industry Association, Federal Forest Resource Coalition, Intermountain Forest Association, and Montana Wood Products Association.

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

Petitions granted in part and denied in part, vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.

THACKER, Circuit Judge

In these two consolidated cases, several environmental advocacy organizations -- Wild Virginia, the Sierra Club, Appalachian Voices, the Wilderness Society, Preserve Craig, Save Monroe, and the Indian Creek Watershed Association (collectively, "Petitioners") -- seek review of the renewed decisions of the United States Forest Service (the "Forest Service") and the Bureau of Land Management (the "BLM") to allow the Mountain Valley Pipeline (the "Pipeline"), an interstate natural gas pipeline system, to cross three and a half miles of the Jefferson National Forest in Virginia and West Virginia. This is the second time Petitioners have challenged the agencies' approval of the Pipeline. We previously vacated the agencies' records of decision ("RODs") because the Forest Service and the BLM failed to comply with the National Environmental Policy Act ("NEPA"), the National Forest Management Act (the "NFMA"), and the Mineral Leasing Act (the "MLA"). We directed the agencies to re-evaluate certain aspects of the Pipeline's potential environmental impact. Sierra Club, Inc. v. U.S. Forest Serv. , 897 F.3d 582 (4th Cir. 2018).

Petitioners contend that the agencies' renewed RODs after remand also violate NEPA, the NFMA, and the MLA. As more fully explained below, we agree with Petitioners in part, so we grant their petitions as to three errors, deny the petitions with regard to Petitioners' remaining arguments, vacate the RODs of the Forest Service and the BLM, and remand for further proceedings consistent with this opinion.

I.

A.

Governing Statutory and Regulatory Framework

1.NEPA

NEPA is a federal environmental protection statute that "declares a national policy of protecting and promoting environmental quality" and requires federal agencies to scrutinize the potential environmental impacts of their projects. Hughes River Watershed Conservancy v. Glickman , 81 F.3d 437, 443 (4th Cir. 1996) ; see 42 U.S.C. § 4331. Notably, NEPA does not require the agencies to reach particular substantive results. Hughes River , 81 F.3d at 443. Rather, NEPA imposes procedural requirements that obligate federal agencies "to undertake analyses of the environmental impact of their proposals and actions." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756–57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (citing Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349–50, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ). In order to accomplish this objective, NEPA mandates that federal agencies prepare an environmental impact statement ("EIS") as part of "every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The primary purpose of an EIS is "to ensure agencies consider the environmental impacts of their actions in decision making." 40 C.F.R. § 1502.1. Accordingly, the EIS must analyze the proposed project's "significant environmental impacts" and discuss "reasonable alternatives that would avoid or minimize adverse impacts or enhance the quality of the human environment."

Id. Of note, "if significant new information or environmental changes come to light after the agency prepares an EIS," the agency must prepare a supplemental EIS to address them. Save Our Sound OBX, Inc. v. N.C. Dep't of Transp. , 914 F.3d 213, 218 (4th Cir. 2019) (citing 40 C.F.R. § 1502.9 ).

"Multiple agencies may cooperate to issue an EIS, but a ‘lead agency’ is usually designated." Sierra Club, Inc. v. U.S. Forest Serv. , 897 F.3d 582, 588 (4th Cir. 2018) (citing 7 C.F.R. § 3407.11(a) ). The Federal Energy Regulatory Commission ("FERC") is the lead NEPA agency when the proposed project involves an interstate gas pipeline. Id. (citing 15 U.S.C. § 717n(b)(1) ; EarthReports, Inc. v. FERC , 828 F.3d 949, 953 (D.C. Cir. 2016) ).

"[A]fter the agency makes a decision regarding the action [based on its consideration of the proposal's environmental impacts laid out in the EIS], it must publish a [ROD], at which point it may then finalize its action." Webster v. U.S. Dep't of Agric. , 685 F.3d 411, 418 (4th Cir. 2012) (citing Nat'l Audubon Soc'y v. Dep't of the Navy , 422 F.3d 174, 185 (4th Cir. 2005) ); see 40 C.F.R. § 1505.2.

2.The NFMA

The NFMA provides substantive and procedural guidance to the Forest Service for the management of National Forest System lands. Pursuant to the NFMA, the Forest Service "develops land and resource management plans" -- known as forest plans -- "and uses [them] to ‘guide all natural resource management activities’ " within the national forests. Ohio Forestry Ass'n v. Sierra Club , 523 U.S. 726, 729, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). To that end, "the Forest Service must ensure that 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." Sierra Club , 897 F.3d at 600 (alteration and internal quotation marks omitted); see 16 U.S.C. § 1604(i). When a proposed project is not consistent with the applicable forest plan, the Forest Service must decide whether to modify the project to ensure consistency with the forest plan, reject the proposal or terminate the project, or amend the forest plan to accommodate the project. 36 C.F.R. § 219.15(c).

In 2012, pursuant to the NFMA, the Forest Service promulgated a rule governing amendments to forest plans (the "2012 Planning Rule"). See National Forest System Land Management Planning, 77 Fed. Reg. 21,162 (Apr. 9, 2012) (to be codified at 36 C.F.R. pt. 219). The 2012 Planning Rule imposes "substantive requirements" for sustainability, diversity of plant and animal communities, multiple land uses, and timbering that are intended to "maintain or restore" ecological integrity and ecosystem diversity in national forests while preserving those forests for multiple uses. Id. ; see 36...