Jackson Kelly PLLC

Energy and Environment Monitor

"Strangled by Process"

August 15, 2018

By: Blair M. Gardner

          The U.S. Court of Appeals for the Fourth Circuit decided a case involving the Mineral Leasing Act of 1920 (MLA), an event sufficiently unusual that it merited a reading of the case. The MLA is the federal statute that governs the leasing of federal minerals, normally coal and oil and gas, on the public lands that the Bureau of Land Management (BLM) administers, primarily in the Western U.S. The BLM has become entangled in the Environmental Impact Statement (EIS) prepared for the Mountain Valley Pipeline under construction in Virginia and West Virginia, not because it administers any federal land affected by the project, but purely because of an obscure provision of the MLA.

          Most readers are probably familiar the controversy associated with the Mountain Valley Pipeline. It has been granted a certificate of convenience by the Federal Regulatory Energy Commission (FERC) to construct, operate, and maintain approximately 303.5 miles of new underground, 42-inch diameter pipeline extending from Wetzel County, West Virginia, to Pittsylvania County, Virginia. According to the Fourth Circuit’s opinion, “[t]he trench for the pipeline will be at least 54 inches wide and 5.5 to 9 feet deep. Construction will involve “remov[ing] trees, shrubs, brush, roots, and large rocks” and will initially require a 75-foot to 125-foot right of way for construction purposes, and a subsequent 50-foot right of way for at least 30 years to accommodate the pipeline’s operation.” (Op. at 6.)

          To grant the certificate, FERC also needed to prepare an EIS to comply with the National Environmental Policy Act (NEPA). FERC was the “lead” agency in developing the EIS because it was the agency whose action prompted the NEPA review. It owns or administers no land in the right-of-way path of the pipeline, but two other federal agencies do. “The proposed right of way will cross land managed by two different agencies -- the Forest Service (3.6 miles or approximately 83 acres of the Jefferson National Forest in West Virginia and Virginia) and the Army Corps of Engineers (60 feet of the Weston and Gauley Bridge Turnpike Trail in Braxton County, West Virginia).” (Op. at 8.) It is this 60 feet of an obscure trail that ultimately hooked in the Bureau of Land Management in the case, and also created an additional claim brought by the environmental plaintiffs.

          The MLA at 30 U.S.C. § 185(c)(2) provides that “Where the surface of the Federal lands involved is administered by . . . two or more Federal agencies, the Secretary [of the Interior] is authorized, after consultation with the agencies involved, to grant or renew rights-of-way or permits through the Federal lands involved.” When oil and gas pipeline rights of way are at issue, the BLM is the delegated agency to make the decisions including decisions about the EIS needed. Of the four federal agencies involved, FERC was defending its decision, and had technical control over the EIS, the Corps had a miniscule interest, the Forest Service had to identify and determine what the environmental effects would be over its 83 acres in two states, and the BLM had to decide which right of way route was preferable.

          Environmental litigants do one thing almost better than anyone else: exploit ambiguity in the administrative processes of agencies. They sued the Forest Service but not FERC or the Corps, over the Forest Service’s analysis used to identify the sedimentation effects of the pipeline as part of its NEPA review and its duties under the National Forest Management Act. It also sued the BLM claiming that it failed to demonstrate that the right-of-way it granted was not the most practical in utilizing the existing utility corridors in the Jefferson National Forest. Accordingly, BLM failed to fulfill its obligation under 30 U.S.C. § 185(p). (Op. at 41.)

          Ultimately, the Fourth Circuit ruled that decisions made by the Forest Service and BLM were merely inadequate, not wrong.  It concluded that the Forest Service failed to explain adequately why the sedimentation effects of the project that it had once questioned were ultimately acceptable. In the case of the BLM, it simply failed to consider why the route that was approved, but which failed to consider an existing right-of-way, was impractical. Both supposed deficiencies can be remedied once the agencies revisit their respective issues as the court ordered.

          The case is Sierra Club v. United States Forest Service, No. 17-2399, U.S. Court of Appeals for the Fourth Circuit (July 27, 2018).



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