Stay Motion To 4th Cir

Appeal: 18-1144 Doc: 97-1 Filed: 09/18/2018 Pg: 1 of 28
No. 18-1144
IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
COWPASTURE RIVER PRESERVATION ASSOCIATION, et al.

Petitioners,
v.
FOREST SERVICE, et al.

Respondents,
and
ATLANTIC COAST PIPELINE, LLC

Intervenor.
PETITIONERS’ MOTION TO STAY

U.S. FOREST SERVICE’S DECISIONS
Pursuant to Federal Rule of Appellate Procedure 18(a) and Local Rule 27(e),
Petitioners seek a stay of Forest Service authorizations for the Atlantic Coast
Pipeline, which allows the clearing of trees, blasting, and trenching through miles
of national forests across steep, mountainous terrain of western Virginia and West
Virginia.
Clearcutting for the pipeline began in March 2018, before stopping that
same month under seasonal restrictions to protect migratory birds.1 Although
those restrictions expired weeks ago, most work on the pipeline remained halted
under a “stop work order” issued by the Federal Energy Regulatory Commission
(“FERC”) on August 10, 2018, in response to this Court’s opinion invalidating
permits by the Fish and Wildlife Service (“FWS”) and National Park Service
(“NPS”). 2 Rushed reauthorizations from both agencies were issued on September
11, 2018, by FWS and on September 14 by NPS. 3 On September 17, both
authorizations posted to FERC’s docket. 4 Hours later, FERC lifted the stop work
order, allowing construction activities previously authorized to proceed.5 An
immediate stay is now necessary to prevent imminent and irreparable harm to
Petitioners’ members from the Forest Service’s erroneous decisions.
1
Construction continued along cleared portions of the pipeline, primarily in West
Virginia. See Atlantic’s Work Area Stabilization Plan (Aug. 14, 2018) (“ACP
Stabilization Plan”), FERC No. 20180815-5006, Ex. 1. FERC eLibrary Accession
Numbers are provided as “FERC No.”
2
Although the Court vacated the FWS decision on May 15, FERC did not halt
work until the full opinion issued on August 6, 2018, which invalidated the NPS
right-of-way decision. FERC Order (Aug. 10, 2018), FERC No. 20180810-4011,
Ex. 2.
3
See Letter from T. Turpin to M. Bley (Sept. 17, 2018), Ex. 3.
4
FERC Nos. 20180917-3001 (FWS), 20180917-5034 (NPS).
5
See Ex. 3.
2
Pursuant to Local Rule 27(a), Counsel for Petitioners informed the other
parties of the intent to file this motion. Respondents and Intervenor oppose the
motion.
I. BACKGROUND
The 600-mile Atlantic Coast Pipeline (“ACP”) will carve through the steep
mountains of the George Washington National Forest (“GWNF”) and
Monongahela National Forest (“MNF”). ROD, [JA0009-10]; FERC Certificate, ¶
203 [JA0769]. On the national forests, the pipeline will impact over 400 acres, cut
in access roads, and require 21 miles of right-of-way clearing. ROD, [JA0009-10].
Construction will blast ridgelines to create flat work space for the pipeline. Final
Environmental Impact Statement (“FEIS”), [JA1515, 1606]. Trenching will
displace massive amounts of soil, FEIS, [JA1608], and overall cross more than
1,500 waterbodies. FEIS, [JA1629, 1655]. National forest lands include sensitive
“karst” terrain, a type of soluble bedrock geology prone to erosion, voids, caves,
and instability. ROD, [JA0023].
FERC authorized the ACP under the Natural Gas Act on October 13, 2017.
See FERC Certificate [JA0690]. The project requires independent approvals from
other agencies, including the Forest Service.
On June 16, 2016, Atlantic applied for a special use permit to construct and
operate the pipeline on national forest lands. ROD, [JA0010]. Construction will
3
cause such significant adverse impacts that it cannot comply with standards
(designed to protect against activities that pose the greatest threat to natural
resources) that govern management of the GWNF and MNF. Instead of requiring
compliance with these standards, the Forest Service waived them in a Record of
Decision (“ROD”) issued November 17, 2017, and a related Special Use Permit
(“SUP”) issued January 23, 2018. Petition for Rev., Ex. A (ECF No. 4-2).
On February 5, 2018, Petitioners filed this challenge. On March 2, 2018, the
Forest Service granted Atlantic permission to begin clearcutting in the right-of-
way. 6 Petitioners asked the Forest Service to administratively stay its
authorizations on March 2, which the agency denied. 7 FERC issued its
authorization to proceed on March 9, 2018. 8 Tree-felling halted on the GWNF on
March 15 and the MNF on April 1 under conditions in the ROD and FERC’s
Certificate 9 designed to protect migratory birds. The ROD’s conditions restricted
logging until after August 31, 2018.10 Construction continued on portions of the
pipeline where trees had already been felled. See ACP Stabilization Plan, Ex. 1;
Webb Decl., Ex. 7.

6
See Letter from Regional Foresters to L. Hartz (Mar. 2, 2018), FERC No.
20180305-5362, attached as part of Ex. 4.
7
See Ex. 5 (containing the reasoning given by the agency).
8
FERC Notice to Proceed (Mar. 9, 2018), FERC No. 20180309-3008, Ex. 6.
9
FERC Certificate ¶ 242, [JA0784].
10
ROD, [JA0055]; see also Migratory Bird Plan, [FS-0052754].
4
On August 10, 2018, FERC ordered Atlantic to stop constructing the
pipeline, following this Court’s decision vacating the NPS authorization and
providing its full opinion on vacatur of the FWS permit, which occurred months
earlier. See Ex. 2. In subsequent filings to FERC, Atlantic reported portions of the
right-of-way had been clearcut in the MNF and the GWNF, and felled trees were
left within the right-of-way. See Ex. 1.11 Atlantic represents it was, until August
10, actively constructing the pipeline in locations near the MNF. See id.; Weekly
Status Report (Aug. 10, 2018) (grading and installation of erosion controls in
spread 3A)12; COM Plan, [JA0092] (showing 4.4 miles of MNF in spread 3A).
FERC has now authorized that work to continue by lifting its “stop work
order” pending only “written concurrence from the Forest Service” regarding
FWS’s revised biological opinion. See Ex. 3.
This case has been fully briefed and is scheduled for oral argument on
September 28, 2018. By that time, tree-clearing and construction will be well
underway, if Atlantic is allowed to resume activities in the national forests. For
11
For example, Atlantic’s stabilization plan indicated 59% of trees had been felled
in spread 3A, which includes the MNF and part of the GWNF. See Construction,
Operation, and Maintenance (“COM”) Plan, [JA0092]. As to federal lands, FERC
later clarified that while trees have been cut, “clearing of felled vegetation has not
yet occurred.” Letter from K. Bowman to M. Bley (Aug. 17, 2018), Ex. 8.
12
Ex. 9, FERC No. 20180810-5146.
5
example, the Mountain Valley Pipeline (“MVP”) cut over 85% of the Jefferson
National Forest right-of-way (3.5 miles) in the short span of a month. 13
Therefore, Petitioners request a stay of the Forest Service’s right-of-way
decision and special use authorization to construct the pipeline. The Forest Service
authorizations contain multiple errors requiring vacatur, including one that is
controlled by this Court’s decision vacating the right-of-way under a similar
decision for MVP. See infra 7. Petitioners’ members recreate on and reside near
land that will be harmed by the ACP, and a stay will prevent irreparable injury to
their environmental, aesthetic, and recreational interests pending completion of the
Court’s review.
13
Compare MVP Weekly Status Report 2/24-3/02/18 (Mar. 13, 2018), FERC No.
20180313-5019 (showing 4.53% trees felled in spread G), with Weekly Status
Report 3/31-4/6/2018 (Apr. 17, 2018), FERC No. 20180417-520 (showing 87.32
% trees felled in spread G); see MVP Spread Map, FERC No. 20180405-5058.
MVP-related materials are attached as Ex. 10.
6
II. ARGUMENT
Whether to issue a stay pending review turns on “consideration of four
factors: ‘(1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.’” Nken
v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770,
776 (1987)). Petitioners meet all four factors.
A. Petitioners Are Likely to Succeed on the Merits

1. Amendments to Forest Plans Unlawfully Bypassed
Requirements of the National Forest Management Act
The Court reviews forest plan amendments authorized by the ROD under the
Administrative Procedure Act (“APA”). The Court “shall hold unlawful and set
aside agency action, findings and conclusions found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §
706(2)(A).
The National Forest Management Act (“NFMA”) sets forth substantive and
procedural standards that govern management of national forests. See, e.g., 16
U.S.C. § 1604(g)(3)(E)(i). Congress directed the Forest Service to promulgate
regulations implementing those standards. Id. § 1604(g). The Forest Service
implements NFMA and these regulations at the local level by “develop[ing]…land
7
and resource management plans [“forest plans”] for units of the National Forest
System.” Id. § 1604(a). All activity on a national forest “shall be consistent with
the land management plans.” Id. § 1604(i) (emphasis added).
The Forest Service can amend its forest plan so long as those amendments
comply with NFMA and implementing regulations. Plan amendments cannot
cause protections to fall below the floor set by NFMA.
The ACP is inconsistent with thirteen standards 14 adopted by the GWNF and
MNF forest plans. Rather than hold Atlantic to these standards, the Forest Service
amended its forest plans to exempt the project.
To amend forest plans, the Forest Service must apply provisions of its
NFMA-implementing regulation, the 2012 Forest Planning Rule (“2012 Rule”),
which requires the Forest Service to:
Determine which specific substantive requirement(s) within

§§ 219.8 through 219.11[ 15] are directly related to the plan
direction being added, modified, or removed by the amendment
and apply such requirement(s) within the scope and scale of the
amendment.
36 C.F.R. § 219.13(b)(5) (emphasis added).
The “directly related” determination turns on: 1) “the purpose of the
14
Petitioners’ motion relates to 9 of those standards. See infra n. 16.
15
The substantive requirements at §§ 219.8 through 219.11 are the heart of the
2012 Rule. The requirements aim to, for example, “maintain or
restore…ecological integrity,” “reduce soil erosion and sedimentation,” and
“maintain or restore...water quality.” See 36 C.F.R. § 219.8(a).
8
amendment,” or 2) “the effects (beneficial or adverse) of the amendment.” Id.
§ 219.13(b)(5)(i). The agency must “look to both the purpose and effect of the
amendment, and if the substantive requirement at issue (i.e., soil, water) is based
upon or associated with either one, it is directly related.” Sierra Club v. Forest
Serv., 897 F.3d 582, 602 (4th Cir. 2018) (“Sierra Club”). Here, as in Sierra Club,
the Forest Service erred because it “failed to analyze the purpose of the
amendment. Instead, it only analyzed the effects of the amendment.” Id.
Without question, the purposes of these amendments are directly related to
substantive provisions of the 2012 Rule. “[T]he purpose of the amendment…is
determined by the need to change the plan.” Id. at 603 (quotation and citations
omitted). The purpose of these amendments is to change plan standards because
“the ACP project would not be consistent with some Forest Plan standards related
to soil, riparian, [and] threatened and endangered species.” ROD, [JA0031]. 16 As
this Court noted in Sierra Club, the 2012 Rule “sets forth substantive requirements
directly related to…: ‘soil and soil productivity’; ‘water resources’; [and] ‘the
ecological integrity of riparian areas.’ Therefore, there is no question that the 2012
Planning Rule requirements for soil, water, and riparian resources are directly
related to the purpose of the Forest Plan amendment.” Sierra Club, 897 F.3d at
16
The Forest Service amended standards MNF-SW06, SW07, and SW03; GWNF-
FW-5, FW-8, FW-16, FW-17, and 11-003 related to soils and riparian areas; and
standard MNF TE07 related to threatened and endangered species. ROD,
[JA0016-18].
9
603. (internal citations omitted). The same is true of threatened and endangered
species. See 36 C.F.R. § 219.9(b)).
The ROD for the ACP is clear that for the nine standards at issue, the Forest
Service only “considered the…effects analysis for this amendment.” See [JA0039,
0041, 0043]. In response to Petitioners’ administrative objections, the Forest
Service reasserted its theory that “a proposed amendment is directly related to any
of the substantive rule provisions of [the Rule] based on whether the amendment
would have ‘substantial adverse effects’ or would ‘substantially lessen protections
for a specific resource or use.’” [JA0688]. Nowhere in the record did the agency
consider the “purpose” test.
This is clear error. Ignoring the purpose prong “is an improper interpretation
of a decidedly unambiguous regulation.” Sierra Club, 897 F.3d at 602. Because
the substantive provisions of the 2012 Rule are directly related to the purpose of
these amendments, “[t]he Forest Service acted arbitrarily and capriciously in
concluding otherwise.” Id. at 603. Compounding its error, the Forest Service
misapplied the effects test, ignoring that ACP will cause substantial adverse effects
that independently trigger the substantive requirements of the Rule. 36 C.F.R. §
219.13(b)(5)(i); see Pet’rs’ Br. 29-30, ECF No. 69; Pet’rs’ Reply 3-5, ECF No. 79.
10
2. The Forest Service Erred by Adopting a Flawed Alternatives

Analysis and Issuing an Invalid Right-of-Way
The Forest Service gave no more than cursory consideration to pipeline
routes that would avoid blasting through national forests. The management plans
governing these forests require an agency to not only consider alternatives
avoiding national forest land, but choose them. The GWNF plan allows “special
uses” like the ACP only if they are “[l]imit[ed] to needs that cannot be reasonably
met on non-NFS” lands. [JA4068]. The MNF plan allows consideration of
“special uses of NFS lands – such as…utility corridors” only if they “cannot be
accommodated off the National Forest.” [JA4069]. NFMA requires every
decision to be consistent with governing forest plans. 16 U.S.C. § 1604(i).
NEPA also requires agencies to “[r]igorously explore and objectively
evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a); see Southeast Ala.
Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1059 (9th Cir.
2011) (failing to examine a viable and reasonable alternative violates NEPA).
Ignoring these requirements, the Forest Service summarily dismissed routes
that would avoid the national forests, based on two separate errors.
First, the Forest Service erred in adopting FERC’s FEIS and accepting the
flawed alternatives analysis with it, which rejected without study the only two
alternatives that avoid national forests and cross the Appalachian National Scenic
Trail (“AT” or “ANST”) on private or state-owned land. As this Court recently
11
recognized, the Forest Service “may adopt FERC’s EIS, but only if the EIS ‘meets
the standards for an adequate statement’ under pertinent regulations, 40 C.F.R. §
1506.3(a), and only if the agencies undertake ‘an independent review of the
statement’ and determine that their ‘comments and suggestions have been
satisfied.’” Sierra Club, 899 F.3d at 590.
Instead of undertaking the necessary analysis to compare on-the-ground
impacts of alternatives, the Forest Service relied upon FERC’s untested assumption
that longer off-forest routes did “not offer a significant environmental advantage”
over a shorter route through the national forest. ROD, [JA0048]. But the Forest
Service knows shorter routes through sensitive resources can cause more
environmental damage and previously said as much. [JA1542]. In official
comments, the Forest Service objected to the dismissal of off-forest alternatives
without study, because “[m]iles of line do not necessarily equate to severity of the
environmental impact” and “[t]he nature of the resources to be impacted needs to
be considered.” [JA2452-54]. No changes were made to the FEIS in response to
these comments. Without explanation, the Forest Service acquiesced in the ROD,
embracing the same rationale it previously rejected. [JA0676]. As a result, the
ROD analyzes only two alternatives – ACP’s preferred route through national
forests or no action, [JA0049] – leaving unexamined the alternative of a pipeline
route that avoids national forests. This violates NFMA, too, as the Forest Service
12
never determined whether the need for the pipeline could “be reasonably met” or
“accommodated” off national forests, as required by its forest plans.17
Second, all other off-forest routes were ignored because Atlantic was
determined to cross the Appalachian Trail on land managed by the Forest Service.
[JA3482]. NPS warned Atlantic it could not grant a right-of-way across the AT
under the authority of the Mineral Leasing Act (“MLA”), because the AT is a unit
of the National Park System. [JA3674]. The authority granted by that statute does
not apply to “lands in the National Park System.” 30 U.S.C. § 185(b)(1).18 As this
Court recently concluded, “the MLA and the National Park System simply operate
in separate spheres.” Sierra Club, Va. Wilderness Committee v. Dep’t of the
Interior, 899 F.3d 260, 289 (4th Cir. 2018) (“VWC”).
Atlantic responded by limiting route alternatives to “locations where the
ANST was located on lands acquired and administered by the FS, which
significantly constrained the pipeline route and severely limits opportunities for
avoiding and/or minimizing the use of NFS lands.” FEIS, [JA1542] (emphasis
17
This Court recently reversed another pipeline authorization based on a similar
error. Sierra Club, 897 F.3d 582 (vacating BLM decision that rejected alternative
routes as “not offer[ing] significant environmental advantage,” without assessing if
routes were “impractical” as required by statute).
18
The Forest Service’s interpretation of the MLA as applied to the AT crossing is
entitled to no Chevron deference because it lacks “the procedural hallmarks of a
legislative-type determination”—it is not precedential or binding on third parties or
the agency. VWC, 899 F.3d at 288.
13
added). Effectively, this required the pipeline to cross a specific “1.3 mile section
of USFS lands.” [JA3458].
The Forest Service initially protested, insisting that the crossing of the AT
“be based on sound resource and compelling public interest determinations,” not
“timeline issues with getting Congressional approval.” [JA3480]. Ultimately, the
Forest Service reversed course and adopted Atlantic’s rationale, concluding “[a]
significant factor in siting the ACP was the location at which the pipeline would
cross the ANST.” ROD, [JA0034]. The Forest Service’s failure to consider off-
forest alternatives was based on an erroneous legal theory that it could do
something the NPS could not: grant a right-of-way to cross the AT using the MLA.
[JA3570]. But the MLA does not “authorize[]…grants of rights-of-way across
lands in the National Park System,” regardless of which agency purports to
exercise that authority. VWC, 899 F.3d at 289-90 (citation omitted). And the FEIS
and the Forest Service’s own comments are unequivocal: the entire AT, including
the segment across the GWNF, is “land[] in the National Park System.” Id.; see
also Pet’rs’ Reply 19-20, ECF. No. 79.
The National Trails System Act, which created the Appalachian Trail, does
not transfer “any management responsibilities” among the many federal agencies
that manage national trails, 16 U.S.C. § 1246(a)(1)(A) (emphasis added), but for
each trail it designates a single agency to “administer” the trail. The Department of
14
the Interior “administers” the entire AT, through NPS, rendering it a unit of the
National Park System. Id. §1244(a)(1). And it is Congress’ designation of the
agency charged with overall administration that defines whether land is in the
forest system or the park system. Compare 54 U.S.C. § 100501 (park system lands
defined as land “administered” by Interior through NPS) with 16 U.S.C. § 1609(a)
(forest system defined as land “administered” by Forest Service). Because the AT
is land in the National Park System, the MLA provides no authority for a pipeline
right-of-way across it.
The Forest Service violated NEPA and its management plans by failing to
consider off-forest alternatives in its final decision. Its flawed interpretation of the
MLA compounds that error by granting a special use authorization to Atlantic
without statutory authority.
3. The FEIS Failed to Take a Hard Look at Landslide Risks and

Erosion Impacts
NEPA requires agencies to take a hard look at the environmental
consequences of an action, including a “thorough investigation into the
environmental impacts” and “candid acknowledgment of the risks that those
impacts entail.” Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir.
2005). This “hard look” requires that steps to mitigate environmental
consequences be “discussed in sufficient detail to ensure that environmental
consequences have been fairly evaluated.” Robertson v. Methow Valley Citizens
15
Council, 490 U.S. 332, 352 (1989). On review, the Court must “ensure that the
agency has examined the relevant data and articulated a satisfactory explanation
for its action.” Defenders of Wildlife v. N.C.D.O.T., 762 F.3d 374, 396 (4th Cir.
2014) (alterations and quotations omitted). The Forest Service abdicated its duty
here.
The Forest Service long-recognized that landslides posed a substantial risk
because of “steep slopes, presence of headwater streams, geologic formations with
high slippage potential, highly erodible soils, and the presence of high-value
natural resources downslope of high hazard areas.” [JA3379]. Atlantic asserted
that it would prevent landslides with its “best in class” (“BIC”) slope stabilization
and erosion control program. Id.; FEIS, [JA1596].
The “challenge” with this approach, according to the Forest Service, was
“documenting how effective the controls are to determine the likelihood of
something not working so the agency can make a determination of effect.”
Meeting Notes, [JA3320]. The Forest Service asked that Atlantic provide “site
specific stabilization designs” for ten representative locations at high risk for slope
failure. [JA3379]. At least six more times, the Forest Service reiterated that need
in order to evaluate landslide risks or the likely efficacy of mitigation. See
[JA2938-39] (Feb. 17, 2017 meeting), [JA2514-17] (Mar. 24, 2017 meeting),
[JA2304] (May 14, 2017 letter, referencing three other calls). Without site-specific
16
data, the BIC program provided for nothing more than “selecting from a basket of
controls while in the field,” an “approach” that “the agency is not comfortable
with.” Feb. 2017 Meeting Notes, [JA2939]; see Neighbors of Cuddy Mountain v.
Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998) (listing possible measures
without examining effectiveness is inadequate).
Although Atlantic never provided this information, the Forest Service
abandoned its position; the FEIS was issued in July 2017 with designs for only two
sites. [JA1608]. The Forest Service issued a single-page letter stating that the
limited information provided by Atlantic was now “adequate,” without explaining
its flip in position. [JA1881]; see also [JA1884] (internal email regarding this
letter, stating Forest Service staff were “having problems with the word
‘adequate’” and requesting discussion of “alternative wording.”).
This acquiescence left the agency uninformed of the effects of the action and
falls short of NEPA’s hard look requirement. Even the FEIS concedes that “slope
instability/landslide risk reduction measures have not been completed or have not
been adopted.” [JA1615] (emphasis added). The analysis was so incomplete that
“Atlantic and DETI [were] currently working to provide documentation of the
likelihood that their proposed design features and mitigation measures would
minimize the risk of landslides in the project area” at all. FEIS, [JA1616]
(emphasis added).
17
As Forest Service staff commenting on an advanced copy of FERC’s FEIS
complained, “effects cannot be determined” because so many EIS sections “refer[]
to the COM plan,” which was itself was “missing and incomplete.” [JA3710–11].
That does not satisfy NEPA. Kern v. BLM, 284 F.3d 1062, 1072 (9th Cir. 2002)
(NEPA “require[s]…analysis as soon as it can reasonably be done;” it is not
enough that effects “will be analyzed later”); see Nat’l Audubon Soc’y, 422 F.3d at
189 (inadequate site visits “never developed into the careful investigation” of a
hard look).
Moreover, the assumptions underlying Atlantic’s sedimentation analysis
were so wildly optimistic they invalidate its conclusions, as the Forest Service
recognized. Atlantic asserted that “erosion control devices” would “reduce erosion
by about 96 percent,” and “function perfectly throughout their duration.” Draft
Biological Evaluation (“BE”), [JA2645, 2666].
The Forest Service knew the inflated predicted efficacy was flawed:
It is naive to assume highly effective measures particularly in remote

and steep sections of pipeline ROW. A more conservative and
realistic approach is to assume 55% effectiveness or less….
[JA2365] (emphasis added); see BE Comments, [JA2357] (instructing Atlantic to
provide “literature references that apply to efficiencies in the field” and to use
“more conservative assumptions about containment efficiencies”).
18
This same agency advised another pipeline company that 78% effectiveness
for erosion control was “a vast overestimate” in similar terrain, predicting instead
“equal to or less than 48% containment.” Sierra Club, 897 F.3d at 592.
The Forest Service identified still more major flaws that led it to conclude
Atlantic “likely…underestimated” erosion and sedimentation from the project. BE
Comments, [JA2369].
Recent failure of Atlantic’s erosion control measures on steep slopes
confirms the Forest Service’s skepticism was warranted. Even with the “stop work
order” in place, FERC approved some construction activities to proceed under the
guise of stabilizing the rights-of-way. See Ex. 8. This “stabilization” included
activities that, in truth, resulted in additional ground disturbance, like trenching and
installing pipeline. See Ex. 1. In recent weeks, even before the hurricane storm
front, Atlantic disclosed sediment-laden runoff reaching streams. Atlantic blamed
“steep terrain” and a “fast-moving weather system” for the breaches, but these are
exactly the conditions Atlantic asserts its BIC program can counteract. See
Weekly Status Reports (Aug. 31, 2018, at 7 and Sept. 7, 2018, at 3), Ex. 11 and Ex.
12.19 These failings at the earliest stages of construction show that risks to streams
19
FERC Nos. 20180831-5036, 20180907-5076; see also Weekly Status Report
(Sept. 14, 2018), describing “silt laden water” reaching the stream. FERC No.
20180914-5022.
19
from constructing the pipeline through steep terrain exceed environmental impacts
disclosed in the NEPA analysis.
Finally, neither the BE nor the FEIS provide a hard look at how increased
sedimentation would impact aquatic habitat and wildlife. Atlantic asserts that
increases of in-stream sediment levels will be de minimis, based on a simplistic
calculation dividing the total sediment that it estimates will erode into a stream in a
year by the volume of water flowing through the stream in that time. Draft BE,
[JA2645]. The Forest Service criticized this approach:
This entire paragraph has false rationale and needs to be

deleted or modified extensively. Erosion and sediment
transport to streams cannot be averaged evenly over a
year, rather it happens in discrete episodic events. It is
not appropriate to minimize impacts by making a
comparison of total load evenly spread over time.
BE Comments, [JA2358].
The Forest Service accordingly rejected as “unsubstantiated” Atlantic’s
contention that the predicted 200 to 800% increases in erosion will be “moderate,”
with “temporary and minimal” impacts. BE Comments [JA2350-53]. And the
FEIS concedes that “water resource impacts from sedimentation are largely
uncertain.” [JA1663] (emphasis added).
20
Despite these flaws, Atlantic failed to make changes requested by the Forest
Service.20 Instead, the Forest Service accepted reports it recognized as deeply
flawed, issued Atlantic a SUP, and amended its forest plans to accommodate the
project. See BE Comments, [JA2369]. This violated NEPA’s hard look
requirement.
B. Petitioners Will Be Irreparably Injured Absent a Stay of the

Permit
Construction of the ACP will cause imminent, significant, and permanent
harm to the recreational, environmental, aesthetic, and property interests of
Petitioners’ members. Petitioners have submitted declarations from their members
who regularly use and enjoy the national forests for outdoor recreation, scenery,
hiking and camping. See Declarations, Pet’rs’ Add. 74–227 (ECF No. 70).
For example, Lynn Cameron regularly visits and recreates in the GWNF,
where she hikes, camps, leads groups on outings, and maintains a portion of the
Appalachian Trail. Cameron Decl. ¶ 2-3, 9, 14. Construction activities will have a
detrimental impact on scenery, rare communities, and biodiversity, including
Brown’s Pond, a Special Biological Area, where Cameron enjoys observing rare
20
Atlantic submitted an updated sedimentation report in August 2017, after the
FEIS was issued. [JA0903]. This revised report does not correct the flaws the
Forest Service identified; for example, the revised report does not reassess erosion
in light of real-world conditions. Instead it merely adds language doubling down
on its assumption that controls will be implemented perfectly. [JA0908, 0930].
21
plants. See id. ¶¶ 4, 13-14; FEIS at 4-162 [JA1829]. Impacts to the areas Cameron
values would deter regular visits. Cameron Decl. ¶¶ 4, 10-11.
Rick Webb and Gary Robinson are both avid fishermen who enjoy
recreational activities like hiking, birding, and fishing in the GWNF and MNF.
Webb Decl. ¶ 4, 11, 15; Robinson Decl. ¶ 16, 18, 23. Their enjoyment will be
harmed by construction of the ACP and its impact on trout streams, biodiversity
and rare communities, and permanent alteration to the landscape and scenic views.
Webb Decl. ¶ 4; Robinson Decl. ¶¶ 20, 22, 24.
Allen Johnson lives adjacent to MNF, only 650 yards from the pipeline
route. Johnson values the MNF for its stunning scenery, pristine streams, and
water quality. Johnson Decl. ¶¶ 7, 9. The pipeline would occupy a ridgeline
where he hikes and hunts numerous times yearly. Id. Construction will harm the
scenic, environmental, and recreational resources that Johnson values in the MNF.
Id. ¶¶ 7, 12.
Environmental harm, “by its nature, can seldom be adequately remedied by
money damages and is often permanent or at least of long duration, i.e.,
irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987); Nat’l
Audubon Soc’y, 422 F.3d at 201.
Harm to aquatic ecosystems and biological diversity constitutes irreparable
harm. Sierra Club v. Clinton, 689 F. Supp. 2d 1123, 1145 (D. Minn. 2010)
22
(finding irreparable harm where pipeline could harm water-bodies and aquatic
ecosystems through increased sedimentation, degradation of aquatic habitat,
increased runoff and erosion); P.R. Conservation Found. v. Larson, 797 F. Supp.
1066, 1072 (D.P.R. 1992) (“No money damages would be sufficient to compensate
society for the permanent loss of one of our most precious natural resources,
biological diversity.”).
So too, failure to evaluate the environmental impacts of a major federal
action constitutes irreparable injury. See Idaho Rivers United v. Probert, No. 3:16-
CV-00102-CWD, 2016 WL 2757690, at *17 (D. Idaho May 12, 2016) (finding
irreparable harm is likely to result from additional sedimentation risks that those
activities add to river system); High Sierra Hikers Ass’n v. Blackwell, 390 F.3d
630, 642 (9th Cir. 2004) (“[I]rreparable injury flows from the failure to evaluate
the environmental impact….”).
Even FERC acknowledges these harms are irreparable. FEIS, [JA1653]
(acknowledging permanent effects on soil resources that cannot be mitigated);
[JA1662] (describing risk of substantial, long-term harm to water quality).
C. A Stay Will Not Substantially Injure the Forest Service or

Atlantic
A stay will not harm the Forest Service, which will continue to manage
ordinary activities on the national forests. Likewise, a stay is unlikely to result in
substantial injury to Atlantic. The irreparable harm from tree-clearing, blasting,
23
and trenching through steep terrain, karst formations, and sensitive watersheds, far
outweighs any temporary, purely economic harm Atlantic might assert. See
League of Wilderness Defs. v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014)
(finding one-year delay resulting in economic harm to developer does not outweigh
irreparable environmental harm faced by plaintiffs); Bair v. Cal. Dep’t of Transp.,
No. C 10-04360 WHA, 2011 WL 2650896, at *8 (N.D. Cal. July 6, 2011)
(determining irreparable harm to redwoods outweighed cost of one-year delay
from seasonal restrictions); Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562,
569 (9th Cir. 2000) (finding irreparable harm of cutting old-growth trees
outweighed financial harm to Forest Service, companies, and local communities).
D. A Stay Is in the Public Interest.

In cases involving injury to the environment, which by its nature is “often
permanent” or of “long duration,” the balance of harms favors the grant of
injunctive relief. See Amoco, 480 U.S. at 545 (“If such injury is sufficiently
likely...the balance of harms will usually favor the issuance of an injunction to
protect the environment.”).
The combination of errors by the agency here resulted in a pipeline route
that unnecessarily uses national forest lands, fails to comply with plan standards,
and fails to analyze the environmental consequences of that decision. Impacts
from tree-felling and construction to forests, habitat, species, scenic views,
24
streams, and the resulting loss of ecological benefits they provide, constitute injury
to the public interest in protecting natural resources.
III. CONCLUSION
Petitioners request that the Court stay implementation of the ROD and SUP
pending completion of the Court’s review.
Dated: September 18, 2018,
Respectfully submitted,
/s/ Amelia Y. Burnette
Amelia Y. Burnette (N.C. Bar No. 33845)

Austin D. Gerken, Jr. (N.C. Bar No. 32689)
J. Patrick Hunter (N.C. Bar No. 44485)
Southern Environmental Law Center
48 Patton Avenue, Suite 304
Asheville, NC 28801
Telephone: 828-258-2023
Facsimile: 828-258-2024
Email: aburnette@selcnc.org;
djgerken@selcnc.org; phunter@selcnc.org
Gregory Buppert (V.A. Bar No. 86676)

Jonathan Gendzier (V.A. Bar No. 90064)
Southern Environmental Law Center
201 West Main Street, Suite 14
Charlottesville, VA 22902
Telephone: 434-977-4090
Facsimile: 434-977-1483
Email: gbuppert@selcva.org;
jgendzier@selcva.org
Counsel for Cowpasture River Preservation

Association; Highlanders for Responsible
25
Development; Shenandoah Valley Battlefields

Foundation; Shenandoah Valley Network; Virginia
Wilderness Committee
/s/ Nathan Matthews
Nathan Matthews (C.A. Bar No. 264248)

Sierra Club Environmental Law Program
2101 Webster Street, Suite 1300
Oakland, CA 94612
Telephone: 415-977-5695
Email: nathan.matthews@sierraclub.org
Counsel for Sierra Club and Wild Virginia, Inc.
26
CERTIFICATE OF COMPLIANCE
1. This motion complies with the type-volume limitation of Fed. R. App. P.

27(d)(2)(A) because this motion contains 5,198 words, excluding the parts
of the motion exempted by Fed. R. App. P. 27(d)(2) and Fed. R. App. P.
27(a)(2)(B).
2. This motion complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this motion has been prepared in a proportionally spaced typeface using
Microsoft Word in Times New Roman 14-point font.
Dated: September 18, 2018

Amelia Y. Burnette
27
CERTIFICATE OF SERVICE
I hereby certify that on September 18, 2018, I electronically filed the
foregoing Motion for Stay on behalf of Petitioners with the Clerk of Court
using the CM/ECF System, which will automatically send e-mail notification
of such filing to all counsel of record.
Avi Kupfer
Emily Polacheck
U.S. Department of Justice
P.O. Box 7415
Washington, D.C. 20044
Brooks Smith
Andrew Wortzel
Troutman Sanders LLP
1001 Haxall Point, Suite 1500
Richmond, VA 23219

Counsel for Petitioners
28

Stay Motion To 4th Cir

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Appeal: 18-1144 Doc: 97-1 Filed: 09/18/2018 Pg: 1 of 28

IN THE UNITED STATES COURT OF APPEALS

COWPASTURE RIVER PRESERVATION ASSOCIATION, et al.

FOREST SERVICE, et al.

ATLANTIC COAST PIPELINE, LLC

PETITIONERS’ MOTION TO STAY

same month under seasonal restrictions to protect migratory birds.1 Although

(“FERC”) on August 10, 2018, in response to this Court’s opinion invalidating

(“NPS”). 2 Rushed reauthorizations from both agencies were issued on September

11, 2018, by FWS and on September 14 by NPS. 3 On September 17, both

order, allowing construction activities previously authorized to proceed.5 An

immediate stay is now necessary to prevent imminent and irreparable harm to

Petitioners’ members from the Forest Service’s erroneous decisions.

mountains of the George Washington National Forest (“GWNF”) and

Monongahela National Forest (“MNF”). ROD, [JA0009-10]; FERC Certificate, ¶

in access roads, and require 21 miles of right-of-way clearing. ROD, [JA0009-10].

Environmental Impact Statement (“FEIS”), [JA1515, 1606]. Trenching will

and instability. ROD, [JA0023].

other agencies, including the Forest Service.

On February 5, 2018, Petitioners filed this challenge. On March 2, 2018, the

Forest Service granted Atlantic permission to begin clearcutting in the right-of-

way. 6 Petitioners asked the Forest Service to administratively stay its

authorizations on March 2, which the agency denied. 7 FERC issued its

authorization to proceed on March 9, 2018. 8 Tree-felling halted on the GWNF on

Certificate 9 designed to protect migratory birds. The ROD’s conditions restricted

Webb Decl., Ex. 7.

On August 10, 2018, FERC ordered Atlantic to stop constructing the

FWS’s revised biological opinion. See Ex. 3.

underway, if Atlantic is allowed to resume activities in the national forests. For

National Forest right-of-way (3.5 miles) in the short span of a month. 13

Therefore, Petitioners request a stay of the Forest Service’s right-of-way

authorizations contain multiple errors requiring vacatur, including one that is

controlled by this Court’s decision vacating the right-of-way under a similar

their environmental, aesthetic, and recreational interests pending completion of the

776 (1987)). Petitioners meet all four factors.

A. Petitioners Are Likely to Succeed on the Merits

aside agency action, findings and conclusions found to be arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §

procedural standards that govern management of national forests. See, e.g., 16

U.S.C. § 1604(g)(3)(E)(i). Congress directed the Forest Service to promulgate

regulations implementing those standards. Id. § 1604(g). The Forest Service

implements NFMA and these regulations at the local level by “develop[ing]…land

the land management plans.” Id. § 1604(i) (emphasis added).

comply with NFMA and implementing regulations. Plan amendments cannot

cause protections to fall below the floor set by NFMA.

amended its forest plans to exempt the project.

NFMA-implementing regulation, the 2012 Forest Planning Rule (“2012 Rule”),

which requires the Forest Service to:

Determine which specific substantive requirement(s) within

36 C.F.R. § 219.13(b)(5) (emphasis added).

The “directly related” determination turns on: 1) “the purpose of the

amendment,” or 2) “the effects (beneficial or adverse) of the amendment.” Id.

amendment. Instead, it only analyzed the effects of the amendment.” Id.

Without question, the purposes of these amendments are directly related to

substantive provisions of the 2012 Rule. “[T]he purpose of the amendment…is

omitted). The purpose of these amendments is to change plan standards because

to soil, riparian, [and] threatened and endangered species.” ROD, [JA0031]. 16 As

species. See 36 C.F.R. § 219.9(b)).

0041, 0043]. In response to Petitioners’ administrative objections, the Forest

would have ‘substantial adverse effects’ or would ‘substantially lessen protections

consider the “purpose” test.

of a decidedly unambiguous regulation.” Sierra Club, 897 F.3d at 602. Because

these amendments, “[t]he Forest Service acted arbitrarily and capriciously in