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Guest Column: Judge Says Forest Service must ‘Speak for the Trees’ – The Courts See the Wisdom of The Lorax

Last week, a three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled that the U.S. Forest Service violated federal law by issuing permits for a gas pipeline to cross through the George Washington National Forest, the Monogahela National Forest, and the Appalachian National Scenic Trail. The ABA Journal, NPR, The Washington Post, and numerous other outlets have all provided coverage.

While Great Rivers was not involved in the case, Great Rivers’ staff and volunteers were excited to read about the ruling and the court’s reference to The Lorax by Dr. Seuss.

The case revolves around a gas pipeline project, led by Dominion Energy, that would run through the national forests and the Appalachian Trail. In late 2017, the Forest Service issued a “special use permit” and formal decision alaska-67304_960_720authorizing the project. Construction would involve “clearing trees and other vegetation from a 125-foot right of way (reduced to 75 feet in wetlands) through the national forests, digging a trench to bury the pipeline, and blasting and flattening ridgelines in mountainous terrains.” Once completed, the project would require “maintaining a 50-foot right of way (reduced to 30 feet in wetlands)” through the national forests for the life of the pipeline.

In February, Southern Environmental Law Center and the Sierra Club challenged the permits and right of way on behalf of environmental groups. The court had to decide whether the Forest Service violated the National Forest Management Act, the National Environmental Policy Act, and/or the Mineral Leasing Act in issuing the permits.

The court found that the Forest Service lessened certain environmental protections simply because the company could not meet those requirements, and doing so violated the National Forest Management Act:

“[t]he 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 [pipeline] project through national forest land on [the gas company’s] timeline are striking, and inexplicable.”

Cowpasture River Pres. Ass’n v. Forest Serv., No. 18-1144, 2018 U.S. App. LEXIS 35060, at *80 (4th Cir. Dec. 13, 2018) (emphasis added), available online here.

According to the court, the Forest Service violated the National Environmental Policy Act by failing to “take a hard look at the environmental consequences of the project.” Specifically, the Forest Service abandoned its request for ten site-specific studies to analyze landslide, erosion, and water quality risks.

It also violated the National Forest Management Act and the National Environmental Policy Act by not analyzing whether there were reasonable alternative routes off of national forest lands. The court seemed especially skeptical since the Forest Service had initially requested—and re-requested—that the Federal Energy Regulatory Commission perform a full analysis of alternative routes, but it later abandoned—without explanation—the request. The court believed this was done to circumvent congressional approval.

The court also said the Forest Service had no statutory authority under the Mineral Leasing Act to grant pipeline rights of way across the Appalachian Trail.

The court concluded its 60-page decision with a Dr. Seuss quote:

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’ Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.”

Interestingly, this is not the first time a court has quoted The Lorax. On Earth Day in 2015, an Iowa Court of Appeals judge cited The Lorax in a footnote when it considered Lackman v. Muff—a case about the value of trees.

TomInOrangeGRELCtshirtLike these courts, Great Rivers and its leaders know that it’s important to “speak for the trees.” That’s why environmental steward and former Great Rivers board member, Tom “Yusha” Sager, used to read The Lorax to children at Columbia’s annual Earth Day Festival and would conclude by telling the children that Great Rivers Environmental Law Center is like the Lorax, and speaks for the trees.

Great Rivers is glad to see members of the bench find wisdom in Dr. Seuss’s words, and we encourage everyone to read and implement the message of The Lorax.

After all, “unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.” Dr. Seuss, The Lorax (1971).

Written by Rachel Harris, a member of Great Rivers' Young Professionals Board

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