Amicus Curiae Brief — United States Forest Service, et al., Petitioners v. Cowpasture River Preservation Association, et al.

Supreme Court briefJan 22, 2020

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Nos. 18-1584 & 18-1587

In the Supreme Court of the United States

---------------------------------

UNITED STATES FOREST SERVICE, ET AL., PETITIONERS,

COWPASTURE RIVER PRESERVATION ASSOCIATION, ET AL.

---------------------------------

ATLANTIC COAST PIPELINE, LLC, PETITIONER,

COWPASTURE RIVER PRESERVATION ASSOCIATION, ET AL.

--------------------------------ON WRIT OF CERTIORARI TO

THE FOURTH CIRCUIT COURT OF APPEALS

--------------------------------BRIEF AMICUS CURIAE OF VIRGINIA

IN SUPPORT OF RESPONDENTS

--------------------------------MARK R. HERRING

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

DONALD D. ANDERSON

Deputy Attorney General MARTINE E. CICCONI

MICHELLE S. KALLEN

Deputy Solicitors General

JESSICA M. SAMUELS

Assistant Solicitor General

ZACHARY R. GLUBIAK

Attorney

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

solicitorgeneral@oag.state.va.us

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

Table of Authorities .............................................

Interest of the Amicus Curiae .............................

Summary of Argument ........................................

Argument .............................................................

II.

III.

The Pipeline Threatens Virginia’s Natural

Resources Without Clear Corresponding

Benefits ......................................................

The Challenged Permitting Decision Violated Numerous Federal Statutes and

Regulations ................................................

The Writ of Certiorari Should Be Dismissed ........................................................ 15

Conclusion............................................................ 19

TABLE OF AUTHORITIES

Page

Cases:

Black v. Cutter Laboratories,

351 U.S. 292 (1956) .................................................15

In re: Va. Elec. & Power Co.’s

Integrated Resource Plan filing,

No. PUR-2018-00065,

2018 WL 6524202 (Va. SCC 2018) ............................6

Sierra Club v. U.S. Dep’t of the Interior, et al.,

899 F.3d 260 (4th Cir. 2018) ....................................10

Constitutions, Statutes, Regulations, and Rules:

Va. Const., art. XI, § 1 ...................................................1

16 U.S.C. § 1246(a)(1) ...................................................9

16 U.S.C. § 1604(i) ................................................. 14, 16

36 C.F.R. §§ 219.8–219.11 ...........................................13

40 C.F.R. § 1500.2(b) ...................................................16

42 U.S.C. § 4332(C)(iii) ......................................... 14, 16

Planning Rule,

77 Fed. Reg. 21,162

(U.S. Dep’t of Agric. April 9, 2012) ..........................13

Mineral Leasing Act,

30 U.S.C. § 181 et seq..................................... 3, 15, 17

iii

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous:

Atlantic Coast Pipeline,

Abbreviated Application for a Certificate of

Public Convenience and Necessity and

Blanket Certificates, Resource Report 1:

General Project Description (Sept. 18, 2015) ............4

Blue Ridge Parkway,

National Park Service ...............................................8

Dissent on Order Issuing Certificates and

Granting Abandonment Authority (Mountain

Valley Pipeline and Atlantic Coast Pipeline),

Commissioner Cheryl A. LaFleur

(Oct. 13, 2017) ...........................................................5

George Washington and Jefferson National Forests,

U.S. Forest Service ....................................................8

George Washington and Jefferson National Forests:

A Weeks Act Profile,

Nationalforest.org .....................................................8

George Washington and Jefferson National Forests,

Virginia.org ...............................................................7

Institute for Energy Economic

and Financial Analysis,

The Vanishing Need for the Atlantic Coast

Pipeline: Growing Risk That the Pipeline Will

Not Be Able to Recover Costs From Ratepayers

(Jan. 2019) ............................................................. 6, 7

TABLE OF AUTHORITIES—Continued

Page

Robert Zullo,

Atlantic Coast Pipeline’s Projected

Price Tag Swells By Up To $1.5 Billion,

Richmond.com (Feb. 22, 2018) ..................................7

U.S. Energy Information Administration,

Annual Energy Outlook 2017 ...................................5

Virginia’s Appalachian Trail,

Virginia.org ...............................................................9

What We Believe,

U.S. Forest Service .............................................. 9, 18

INTEREST OF THE AMICUS CURIAE

This case impacts Virginia more than any other

State. 301 miles of the proposed Atlantic Coast Pipeline—50% of the pipeline’s total length—would be

located in Virginia and carve a path directly through

some of the Commonwealth’s most valuable natural resources. One of those resources is the Appalachian

Trail, which gently winds across Virginia for more

than 500 of its 2,000 miles—a greater percentage than

any other State.

Virginia thus has a strong interest in the Court’s

consideration and resolution of this matter. Conserving natural resources and historical sites is critically

important to Virginians and is enshrined in the state

Constitution. See Va. Const. art. XI, § 1. But for Virginia’s natural resources to be adequately protected,

federal agencies charged with administering federal

lands within its borders must fulfill their statutory

obligations. The Forest Service did not do so here, to

the detriment of Virginians and others who enjoy the

natural treasures in the pipeline’s path. The Commonwealth likewise has an interest in ensuring the

Court is presented with an accurate picture of need

for the pipeline, its (purported) benefits, and the burdens it would impose on Virginians and others.

SUMMARY OF ARGUMENT

The Atlantic Coast Pipeline is a proposed 600mile-long natural gas pipeline that would begin in

West Virginia and terminate in two different locations

in North Carolina and Virginia. The pipeline would bisect Virginia from its northwestern corner to its

southern border before splitting in two and turning

northeast towards the Atlantic Ocean. Along its proposed route, the pipeline would run directly through

several of Virginia’s most cherished places—the

George Washington National Forest, the Blue Ridge

Parkway, and the Appalachian Trail.

The pipeline company (Atlantic) claims the project

is necessary to address an unmet and growing demand

for natural gas in Virginia and North Carolina. But

that claim does not withstand scrutiny. Indeed, recent

analyses indicate that the demand for natural gas will

remain flat or decrease for the foreseeable future and

can be met with existing infrastructure.

Beyond offering dubious benefits, the pipeline unquestionably threatens some of Virginia’s most valued

natural sites. The George Washington National Forest,

the Blue Ridge Parkway, and the Appalachian Trail are

woven into the fabric of Virginia’s history, offering solitude and recreation to Virginians and visitors for generations, bringing tourism and its corresponding

benefits to the neighboring communities.

Despite the undisputed (and indisputable) value

of the natural resources in the pipeline’s path, the

United States Forest Service failed to conduct the meticulous review of Atlantic’s permit application called

for by the Service’s governing statutes and regulations.

Instead, the permitting process was rushed and slipshod and driven by Atlantic’s arbitrary deadlines.

Given the chaotic nature of the agency proceedings, it

is unsurprising that the Fourth Circuit invalidated the

permit on three separate grounds that are entirely independent of the question whether the Forest Service

has authority to grant Atlantic permission to cross the

Appalachian Trail.

Atlantic and the Forest Service challenge none of

those alternative holdings. As a result, the challenged

permit will be invalid regardless of how the Court resolves the question on which it granted review. What

is more, the Fourth Circuit’s decision specifically requires the Service to consider alternative routes that

do not cross National Forest land. For that reason, it is

highly unclear if the issue before this Court—whether

the Mineral Leasing Act would authorize the Forest

Service to issue a pipeline right-of-way across the Appalachian Trail—will re-emerge. The Forest Service’s

arguments to the contrary betray its intent to repeat

the shoddy review conducted the first time around, ignoring its statutory and regulatory mandate to give

due consideration to alternative routes for the pipeline.

This Court should not indulge the agency’s abdication

of its critical responsibilities.

Virginia agrees with the arguments made by respondents and their other State amici and urges this

Court to affirm if it reaches the question presented. In

the alternative, Virginia asks the Court to dismiss the

writ of certiorari given the Fourth Circuit’s (entirely

correct) conclusion that the challenged permit fails for

numerous other reasons. Because respondents and

their other State amici aptly present the arguments for

affirming on the specific question on which this Court

granted review, this brief focuses on the Fourth Circuit’s alternative grounds for invalidating the challenged permit.

ARGUMENT

The Pipeline Threatens Virginia’s Natural

Resources Without Clear Corresponding

Benefits

1. In their effort to garner public and political

support for the pipeline project, Atlantic and its allies

have insisted that it will address a growing and unmet

demand for natural gas from customers in Virginia and

North Carolina. See, e.g., West Virginia Amicus Br. 23

(invoking the interests of “[r]esidents of North Carolina and Virginia”). But there is reason to doubt those

claims.

In its application for a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (FERC), Atlantic cited studies

forecasting that “demand for natural gas for power

generation in Virginia and North Carolina [will]

grow 6.3 percent annually between 2014 and 2035.”1

Atlantic Coast Pipeline, Abbreviated Application for a

Certificate of Public Convenience and Necessity and Blanket Certificates, Resource Report 1: General Project Description, Federal

Energy Regulatory Commission Case No. CP15-554, September

18, 2015, p. 1–6.

Its pipeline, Atlantic argues, is needed to meet the

growing energy demands of these customers. See Atlantic Br. 1 (referencing “consumers in Virginia and

North Carolina”).2

Atlantic’s argument, however, rests on a faulty

premise. In 2017, for example, a federal agency

charged with collecting information to promote sound

energy policymaking projected that demand for natural gas for electricity would actually decrease between

2015 and 2020—and not return to 2015 levels until

2034.3

The numbers for Atlantic have not improved since

then. In its most recent long-term Integrated Resource

Plan (IRP), the electric utility affiliate of Dominion Energy—the majority stakeholder in the pipeline joint

venture—modeled five scenarios for meeting electricity demand through 2033. All but one of the models

As Atlantic’s filing indicates, FERC has responsibility for

determining whether there is a market need for the pipeline. Although FERC answered that question affirmatively, it focused

narrowly on Atlantic’s gas-transportation contracts with affiliated utilities without addressing the likelihood that demand for

natural gas would remain flat or decrease in coming years. Cf.

Dissent on Order Issuing Certificates and Granting Abandonment Authority (Mountain Valley Pipeline and Atlantic Coast

Pipeline), Commissioner Cheryl A. LaFleur (Oct. 13, 2017) (“I believe that evidence of the specific end use of the delivered gas

within the context of regional needs is relevant evidence that

should be considered as part of our overall needs determination.”).

See U.S. Energy Information Administration, Annual Energy

Outlook 2017, at 70, available at, https://www.eia.gov/outlooks/

aeo/pdf/0383(2017).pdf. This estimate assumes that the Clean

Power Plan, which the Trump administration has rescinded, is

not implemented.

showed no significant increase in natural gas consumption, and the only model that included annual

consumption numbers actually showed a decrease at

the end of that time frame.4

Even these estimates may be overstated. In 2018,

Virginia’s State Corporation Commission rejected Dominion’s annual IRP, expressing “considerable doubt

regarding the accuracy and reasonableness of the

Company’s load forecast.”5 For one thing, the Commission pointed out that Dominion’s forecasted load

growth exceeded the forecast of the regional transmission organization by more than 50%. Id. The Commission also criticized Dominion for consistently failing to

meet expectations, observing that “[t]he record . . . reflects that the load forecasts contained in the Company’s past IRPs have been consistently overstated,

particularly in years since 2012, with high growth expectations despite generally flat actual results each

year.” Id.

Complicating matters further, natural gas is increasingly at a competitive disadvantage due to technical advances and cost reductions in renewable

See Institute for Energy Economic and Financial Analysis

(IEEFA), The Vanishing Need for the Atlantic Coast Pipeline:

Growing Risk That the Pipeline Will Not Be Able to Recover Costs

From Ratepayers, at 5 (Jan. 2019) (IEEFA Analysis), available at,

https://ieefa.org/wp-content/uploads/2019/01/Atlantic-Coast-Pipeline_

January-2019.pdf (estimating consumption for four models based

on information provided in IRP).

In re: Va. Elec. & Power Co.’s Integrated Resource Plan filing, No. PUR-2018-00065, 2018 WL 6524202, at *5 (Va. SCC Dec.

7, 2018).

energy. IEEFA Analysis at 10. Unfortunately for Virginians, regardless of the need for the pipeline (and

whether it is ultimately completed), the ever-rising

costs of building it will be passed on to consumers by

the companies that have contracted with Atlantic to

carry gas through the pipeline—all of which are affiliates of the pipeline’s sponsors, Dominion, Duke Energy,

and Southern Company. See Robert Zullo, Atlantic

Coast Pipeline’s Projected Price Tag Swells By Up To

$1.5 Billion, Richmond.com (Feb. 22, 2018).6

2. Although demand for the pipeline may be

questioned, there is no debate about the value of the

natural resources it will invariably impact. In Virginia

alone, the proposed route crosses three celebrated natural features: the George Washington National Forest,

the Blue Ridge Parkway, and the Appalachian Trail.

a. The George Washington National Forest. Combined with the adjacent Jefferson National Forest, the

George Washington National Forest spans more than

1.6 million acres, extending along the Appalachians

and following Virginia’s northwest border with Kentucky and West Virginia.7 Together, the two forests “afford virtually every type of outdoor recreation activity

. . . imagin[able],” including “[h]iking, mountain biking,

Available at, https://www.richmond.com/business/atlanticcoast-pipeline-s-projected-price-tag-swells-by-up/article_bd8f073df563-511e-8988-b93cb1874a05.html; see also IEEFA at 2 (explaining that “all of the[ ] transportation contracts are with regulated

utility companies affiliated with the three ACP-LLC partners”).

George Washington and Jefferson National Forests, Virginia.org,

available at, https://www.virginia.org/gwjnf.

camping, . . . fishing . . . bird watching, horseback riding, photography, orienteering, and cross-country skiing.”8 Given their natural beauty and varied offerings,

it is not surprising the forests attract three million visitors per year.9

b. The Blue Ridge Parkway. The Blue Ridge

Parkway runs for nearly 500 miles through Virginia

and North Carolina, following the Blue Ridge Mountains and linking the Shenandoah National Park to the

Great Smoky Mountains National Park. It was the

product of numerous public works projects undertaken

in the 1930s, which helped the Appalachian region

climb out of the Great Depression. Labeled “America’s

[f ]avorite [d]rive,” the Parkway boasts “stunning longrange vistas and close-up views of the rugged mountains and pastoral landscapes of the Appalachian

Highlands.”10 According to the National Park Service,

the Parkway “protect[s] a diversity of plants and animals, and provid[es] opportunities for enjoying all that

makes this region of the country so special.” Id.

c. The Appalachian Trail. The Appalachian Trail

stretches from Maine to Georgia, with more than a

George Washington and Jefferson National Forests, U.S. Forest

Service, available at, https://www.fs.usda.gov/recmain/gwj/recreation.

George Washington and Jefferson National Forests: A

Weeks Act Profile, Nationalforest.org, available at, https://www.

nationalforests.org/blog/a-weeks-act-profile.

Blue Ridge Parkway, National Park Service, available at,

https://www.nps.gov/blri/index.htm.

quarter of its 2,000 miles traversing Virginia.11 The

trail has a rich history, both in its creation nearly 100

years ago and in the public-private partnerships that

have stewarded its preservation through the years. See

16 U.S.C. § 1246(a)(1) (entrusting private landowners

with the responsibility to manage the portions of the

Trail on their lands); see also Appalachian Trail Conservancy Amicus Br. 27–29 (describing role of local governments and conservancy groups in managing the

Trail). Virginia is home to several of the Trail’s most

visited sites, including Grayson Highlands and Mount

Rogers. These and other highlights draw countless visitors each year to enjoy the solitude and natural

beauty of the Trail—the same attributes that led Congress to designate the Trail as one of the first two scenic trails under the National Trails System Act more

than fifty years ago.

II.

The Challenged Permitting Decision Violated

Numerous Federal Statutes and Regulations

Because it planned to cross National Forest land,

Atlantic needed a permit from the United States Forest Service—an agency that describes its own mission

as “Caring for the Land and Serving People.”12

Virginia’s Appalachian Trail, Virginia.org, available at,

https://www.virginia.org/appalachiantrail/.

What We Believe, U.S. Forest Service, available at,

https://www.fs.usda.gov/about-agency/what-we-believe.

Unfortunately, the Service’s evaluation of the permit

fell far short of that promise.13

1. a. Initially, the Forest Service appeared skeptical of the pipeline project and prepared to conduct the

type of rigorous review envisioned by its governing

statutes and regulations.

In October 2016, the Service expressed concern

about Atlantic’s plan to construct the pipeline on the

steep slopes of the George Washington and Monongahela National Forests. Because the project would need

to be consistent with “Forest Plan standards that

limit activities in areas that are at high risk for slope

and soil instability,” the Service explained that it

needed further evidence before it could continue processing Atlantic’s permit application. Pet. App. 4a.

Specifically, the Forest Service requested plans for ten

sites that could demonstrate that Atlantic’s technology

would meet stabilization requirements. Id. Those

plans would be “merely representative,” the Service

cautioned: “Should the ACP project be permitted, multiple additional high hazard areas [would] need to be

addressed on a site-specific basis.” Id. at 5a. Months

later, in February 2017, the Forest Service confirmed

that all ten site-specific stabilization designs would

be required, informing Atlantic that it was “not

The Forest Service was not alone in failing to meet its statutory and regulatory obligations when it reviewed the pipeline

project. The permit review the U.S. Park Service conducted before

allowing Atlantic to cross the Blue Ridge Parkway was similarly

flawed. See Sierra Club v. U.S. Dep’t of the Interior, et al., 899

F.3d 260, 290–94 (4th Cir. 2018).

comfortable” with proceeding with the permit without

seeing the plans. Id. at 7a.

In December 2016, Atlantic circulated a timeline

for FERC and the Forest Service’s review, looking to

complete the administrative process by October 2017.

Consistent with that timeline, FERC completed its

draft Environmental Impact Statement (EIS) in late

2016. In April 2017, the Forest Service commented on

the draft, noting repeatedly that FERC lacked adequate information to draw the conclusions it reached,

particularly about sensitive soils and steep slopes.

Pet. App. 9a. Most significantly, the Forest Service

commented that “[n]o 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.” Id. at

38a. The Service explained that it “[could not] support

the recommendation that the National Forest Avoidance Alternative be dropped from consideration” and

“reiterate[d]” its request for evaluation of such an alternative. Id. at 39a.

Around the same time, the Forest Service provided

critical comments on Atlantic’s draft biological evaluation. In particular, the Service cautioned that Atlantic’s

plans would “likely . . . create long-term negative impacts to the ecosystem,” including detrimental impacts

on “potentially sensitive species.” Pet. App. 9a–10a.

b. Just a month later, however, the Forest Service

abruptly changed course. Without acknowledging its

change of position, the Service now told Atlantic that

the eight additional site-specific exemplars it had

requested would not be required and the two previously provided designs would be adequate to proceed

with the permit review. Pet. App. 11a.

In line with Atlantic’s timeline, the Forest Service

released its draft Record of Decision, which proposed

granting the permit and exempting the pipeline from

a number of forest plan standards. Directly contradicting its prior position, the Forest Service agreed to drop

its request for an analysis of alternatives that did not

cross National Forest land, stating that such alternatives—never analyzed—“[would] not offer a significant

environmental advantage when compared to the proposed route or would not be economically practical.”

Pet. App. 11a–12a. In response to comments, the Service stated that FERC had “adequate[ly] consider[ed]”

alternatives and “concluded these alternatives would

not provide a significant environmental advantage

over a shorter route that passes through National Forests.” Id. at 12a. In a similar about-face, the Service responded to Atlantic’s updated biological evaluation by

amending its previous conclusion to find that the pipeline would not result in a loss of sensitive species. Id.

at 13a.

2. Given the Forest Service’s whiplash-inducing

approach to Atlantic’s permit, it is hardly surprising

that the Fourth Circuit invalidated its decision on a

number of separate grounds.

a. Observing that the National Environmental

Policy Act (NEPA) requires “particular care” when a

proposed project would cross a National Forest, the

court of appeals found that the Service had failed to

offer a “detailed discussion” of steps Atlantic could take

to mitigate landslide risks, erosion impacts, and waterquality degradation. Pet. App. 43a. The court recognized that the Forest Service had expressed numerous

concerns in its comments on FERC’s draft EIS and

had insisted that the permit should not be issued unless Atlantic provided ten site-specific designs to

demonstrate that its technology would be effective at

mitigating the risks posed by steep slopes. Id. Given

statements made in the final EIS—including that

“slope instability/landslide risk reduction measures

have not been completed or have not been adopted”—

the court determined that the final EIS could not have

addressed the Service’s concerns. Pet. App. 44a. In

other words, “[t]o support its decision to approve the

project and grant the [permit], the Forest Service relied on the very mitigation measures it previously

found unreliable.” Id. In the Fourth Circuit’s view, that

was “insufficient to satisfy NEPA, and did not constitute the necessary hard look at the environmental consequences of the ACP project.” Id. at 45a.

b. The Fourth Circuit also found that the Service

had not complied with its Planning Rule when it applied project-specific amendments to 13 standards, including nine amendments related to the plan for the

George Washington National Forest. Pet. App. 18a;

see also Planning Rule, 77 Fed. Reg. 21,162 (U.S. Dep’t

of Agric. April 9, 2012); 36 C.F.R. §§ 219.8–219.11.

Those amendments relaxed forest plan standards for

soil, water, riparian, threatened and endangered species, and recreational and visual resources. Despite

acknowledging that the purpose of the amendments

was to allow Atlantic to meet the requirements of the

National Forest Management Act (NFMA) and accompanying regulations (because it could not meet those

standards without amendments), the Service “fail[ed]

to analyze whether the substantive requirements of

the 2012 Planning Rule [were] directly related to the

purpose of the amendments.” Pet. App. 19a. As the

Fourth Circuit explained: “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.” Pet. App. 27a.

c. Finally, the court of appeals found that the

Forest Service had violated NEPA and other governing

laws by failing to consider alternatives that did not

cross National Forest land. See 42 U.S.C. § 4332(C)(iii)

(requiring consideration of alternatives); see also

16 U.S.C. § 1604(i) (requiring compliance with forest

plans, which require non-National Forest alternatives). In the court’s view, it was improper for the Service to rely on FERC’s final EIS for several reasons:

First, the standard FERC applied to determine

whether an alternative route should be used was different from the standard imposed on the Forest Service. Pet. App. 31a. Second, despite expressing

concerns about the lack of study of off-forest alternatives in the draft EIS, the final EIS the Service adopted

included a discussion of “National Forest Avoidance

Route Alternatives” that was identical to the draft. Pet

App. 39a. The court “simply [could not] 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

41a (internal quotation marks omitted). The court thus

determined that the Service had acted “arbitrarily and

capriciously.” Id. at 41a–42a.

III. The Writ of Certiorari Should Be Dismissed

It is undisputed that this Court’s decision will not

change the outcome of this case. See Gov’t Cert. Reply

8; Atlantic Cert. Reply 9. As just described, the Fourth

Circuit determined that the Forest Service violated its

statutory and regulatory obligations in three different

ways that are separate and apart from its authority

under the Mineral Leasing Act to issue a pipeline

right-of-way crossing the Appalachian Trail. Atlantic

and the Service challenge none of those holdings and

each is independently sufficient to invalidate the permit. Because “[t]his Court . . . reviews . . . judgments,

not statements in opinions,” Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956), that fact alone provides

a sufficient basis to dismiss the writ of certiorari.

The reasons Atlantic and the Forest Service offer

for deciding the question presented now are both unpersuasive and betray a fundamentally misguided

(and troubling) understanding of the Service’s task on

remand. Focusing on the Fourth Circuit’s holding that

the Service was required to consider non-forest alternatives, the government doubles down on the very

reasoning the court rejected—that FERC’s final EIS

properly analyzed all non-forest alternatives and there

is nothing left for the Forest Service to do. See Gov’t

Cert. Reply 10–11. But as the Fourth Circuit explained, that argument fails on multiple levels, including that the Service was required to undertake an

independent review to determine whether FERC had

addressed its concern that “[n]o analysis of a National

Forest Avoidance Alternative ha[d] been conducted,

and environmental impacts of [that] alternative ha[d]

not been considered or compared to the proposed action.” Pet. App. 41a. By promising to repeat its blind

adherence to FERC’s analysis on remand, the government endorses nothing less than an abdication of the

Forest Service’s responsibilities.

Atlantic’s arguments are even more dismissive of

the Forest Service’s important statutory and regulatory mandate. Atlantic insists that “even if it were

somehow possible to divert the pipeline to permissibly

cross the Trail on State or private land, that diversion

would involve additional unnecessary cost, cause

needless delay, and make no sense.” Atlantic Cert. Reply 10. But diverting the pipeline away from National

Forest land where appropriate is precisely what the

statutes and regulations were intended to accomplish,

and what they require of the Forest Service. See, e.g.,

16 U.S.C. § 1604(i); 42 U.S.C. § 4332(C)(iii); 40 C.F.R.

§ 1500.2(b). Atlantic’s suggestion that doing what existing law demands would impose costs and “make no

sense” is an argument for changing the law, not ignoring it as the Service did here.14

Even more striking, Atlantic characterizes respondents’ effort to defer review of the question presented

until after remand (if necessary) as “particularly disingenuous given the Fourth Circuit’s apparent discomfort with pipelines.” Atlantic Cert. Reply 12. According

to Atlantic, this Court should ignore a United States

court of appeals’ unanimous analysis and the multiple

independent reasons it found for remand because a

private petitioner asserts that court cannot fairly decide an entire category of cases. Instead, Atlantic asks

this Court to join it and the federal government in

their all-out push to see that a particular pipeline is

constructed when, where, and how the pipeline company wants it to be. But as the Fourth Circuit appropriately recognized, the Service’s statutory and

Respondents and their other State amici demonstrate why

this Court should reject the government and Atlantic’s alternative argument that immediate resolution is needed because the

Fourth Circuit’s decision has sweeping implications. See e.g.,

Resp. Br. 46–48; Vermont Amicus Br. 17–25 (explaining that few

trails would be covered by the Fourth Circuit’s decision on the

Mineral Leasing Act and the decision would not affect existing

pipeline crossings and utility easements). It is telling that, in response to respondents’ argument that no federal agency had

granted a right-of-way under the Mineral Leasing Act until 2017,

the government could muster only a single permit authorized in

2013, where the Forest Service knew that the Appalachian Trail

was scheduled to be re-routed away from the proposed construction. Gov’t Cert. Reply 7. That single example hardly suggests an

urgent need to conclusively resolve whether the Fourth Circuit

was correct about a single (non-outcome determinative) threshold

holding.

regulatory obligations are not optional, nor are they

speed bumps to be hurried over and driven around if

necessary.

The requirements the Forest Service ignored

when it granted Atlantic’s permit were crafted by Congress with an eye towards protecting the National Forests for generations to come. Virginians rightly should

be able to count on the Forest Service to fulfil its congressionally mandated obligations—not to mention its

self-professed mission of “Caring for the Land and

Serving People.”15 This Court should not endorse the

dismissive attitude the Service and Atlantic demonstrate towards the Forest Service’s critical responsibilities by prematurely deciding a question whose

resolution will not impact the outcome of this case.

What We Believe, U.S. Forest Service, available at,

https://www.fs.usda.gov/about-agency/what-we-believe.

CONCLUSION

The judgment of the Fourth Circuit should be affirmed. In the alternative, the writ of certiorari should

be dismissed.

Respectfully submitted.

MARK R. HERRING

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

DONALD D. ANDERSON

Deputy Attorney General MARTINE E. CICCONI

MICHELLE S. KALLEN

Deputy Solicitors General

JESSICA M. SAMUELS

Assistant Solicitor General

ZACHARY R. GLUBIAK

Attorney

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

solicitorgeneral@oag.state.va.us

JANUARY 2020

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