Roger L. Gregory, chief judge of the 4th U.S. Circuit Court of Appeals, had a one-word question he wanted a lawyer for the U.S. Forest Service to answer — “When?”
Gregory asked the question twice more for emphasis in a Richmond courtroom last week. He sought an answer for the timing of what he called a “reversal” in the federal agency’s position on the risks posed by the Atlantic Coast Pipeline, planned through two national parks on steep mountain slopes prone to landslides.
Environmentalists say the answer can be found in a series of emails exchanged in late 2016 — just after the presidential election — among officials of the U.S. Forest Service, responsible for managing the George Washington National Forest in Virginia and the Monongahela National Forest in West Virginia.
Political, or practical?
The emails show a top executive of Dominion Energy, lead developer of the $6.5 billion project, trying to coordinate regulatory action by the Forest Service, despite skepticism from agency officials about the timeline and the company’s ability to safely build a 42-inch-wide natural gas pipeline on steep, unstable slopes.
“The intent is to demonstrate that we can actually permit a pipeline on these slopes and have a reasonable chance of keeping the pipeline on the mountain and keep the mountain on the mountain,” Clyde Thompson, Monongahela forest supervisor, wrote on Dec. 20, 2016. “Based on what I’m hearing ... I’m not optimistic.”
A week later, Glenn Casamassa, then associate deputy chief of the national forest system, informed Eastern Region forest supervisor Kathleen Atkinson that “Dominion’s intent” was for the agency to publish its findings on the project at the same time that the Federal Energy Regulatory Commission issued its final environmental impact statement.
“Draft decision would be based on the present pipeline alignment,” Casamassa said in the email on Dec. 27, 2016. “I would anticipate that direction to be coming our way in as early as end of January.”
For environmentalists, the reason was political, coming between Donald Trump’s election and inauguration as president.
“The professionals got overruled by the politicians,” said D.J. Gerken, attorney for the Southern Environmental Law Center. It is challenging Forest Service approval of permits for the 600-mile natural gas pipeline to cross more than 21 miles of national forestland.
But for Dominion, the reason for the correspondence between the company and the Forest Service was purely practical.
“Agencies and applicants are supposed to work together to try to resolve issues that are of concern,” spokesman Aaron Ruby said Monday.
One of the biggest concerns of the Forest Service was the stability of steep mountain slopes, with highly erodible soils subject to heavy rains, that would be crossed by a pipeline in a 10-foot-deep trench and a 125-foot-wide construction right of way.
The Forest Service wanted the pipeline company to show how it would protect 10 examples of high-risk slopes from landslides and damage to streams or other environmentally sensitive areas of the national forests.
The agency had first asked for those designs in a letter to Dominion on Oct. 24, 2016, and repeated the request over the winter and into spring of 2017.
However, in a letter to federal energy regulators on July 5, Thompson said the information the company provided in response “was adequate for the purposes of disclosing the environmental effects associated with the proposed construction of the Atlantic Coast Pipeline on steep slope sites on the Monongahela National Forest and George Washington National Forest.”
Less than three weeks later, on July 21, 2017, the Federal Energy Regulatory Commission issued its final environmental impact statement approving the pipeline with conditions for its construction.
The same day, the Forest Service issued its draft “record of decision,” which proposed to adopt the environmental impact statement, grant a special-use permit and amend national forest management plans with 13 changes to accommodate the project.
The agency issued the final record of decision in November, a month after FERC granted a certificate to build the pipeline. By then, Dominion had completed designs for stabilizing slopes on just two of the 10 sites the Forest Service had required.
“The Forest Service wanted to have that information before it made its decision,” Gerken said Monday.
Brooks Smith, a Richmond lawyer for the pipeline company, told the appeals court panel that Dominion had completed the designs for the other sites by the time the Forest Service issued a final special-use permit for the project on Jan. 23, 2018.
The Forest Service “never relented” on its concerns about steep slopes, Smith said.
In a brief to the court in July, lawyers for the Forest Service said the appeal environmental groups filed “is premised on the erroneous assertion ... that the service changes its mind during the environmental review process regarding the need for the 10 site-specific construction designs.”
“The record simply does not support that characterization of the service’s position,” the lawyers said.
They addressed the emails, which the law center obtained through the Freedom of Information Act, in a footnote that called the messages “deliberative emails” that were not part of the record “that formed the basis of the agency’s decision.”
But Gregory, the judge who wrote an opinion in August that vacated two other federal permits for the project, asked, “Who’s running the train station? Is it the private company?”
Ruby, in a statement after the court hearing on Friday, said, “This is not a political process; it’s a collaborative process that has resulted in meaningful improvements to the project and important protections for the environment.”