Posted on January 8, 2019 by Eileen Millett
Last month, in Cowpasture River Preservation Association v. Forest Service a panel of the 4th Circuit rejected the U.S. Forest Service approval of a pipeline development that would have crossed 21 miles of national forest land, and the Appalachian National Scenic Trial. In scolding the Forest Service for not adequately protecting the trees, the court cited Dr. Seuss’ classic The Lorax, saying, “We trust the United States Forest Service to ‘speak for the trees,’ for the trees have no tongues.” More on the case in a moment, but I find that quote to be particularly heartwarming.
Some years ago, when I left the tree lined streets of Ditmas Park, Brooklyn for the state capital, to join the New York State Department of Environmental Conservation, my boss presented me with a welcoming gift, though it was actually for my young son. The book was The Lorax with an inscription that read “Dear Elliott, ask your mommy to read this book to you and you will learn why she goes to work every day.” The Lorax like Rachel Carson’s Silent Spring, reminds us that our birds, trees and natural resources, air, water had no one to speak for them, and needed to rely on us to protect them.
Dr. Seuss’s book resonated with me in a huge way, since my house abutted the Albany Pine Bush, the home of the Karner blue butterfly, an endangered species. I had left one “Park” area for an area even more verdant. The Pine Bush is one of the best remaining examples of an inland pine barrens ecosystem in the world. It has come to be seen as a historical, cultural, and environmental asset to the Capital District and Hudson Valleyregions of New York. Yet, despite a valiant fight by a local conservation group, the City of Albany allowed the rezoning enabling the Crossgate mall development adjoining the butterfly habitat.
I had chosen to decamp to Guilderland, a town west of Albany, when the feelings about the then newly built Crossgates mall were still raw. My tree protectionist stance made it impossible for me to ever shop at what is now the 3rd largest mall in NY State. In gifting me The Lorax, my boss helped a young boy understand what his mom did, why she loved what she did, and made it impossible for me not to connect with the trees in the Pine Bush nearby. I have always loved the fact that Dr. Seuss’ book had given the trees a mouthpiece, the Lorax. Like Aaron speaking for Moses, the Lorax spoke for the trees. “I am the Lorax, I speak for the trees.”
So imagine my validation reading Cowpasture when a three judge panel of the 4th Fourth Circuit blocked the Atlantic Coast Pipeline from a critical crossing of the Appalachian National Scenic Trail through the Blue Ridge Mountains near Wintergreen Resort. The Federal Energy Regulatory Commission had approved the pipeline route for which the Forest Service issued a Special Use Permit. In rejecting the U.S. Forest Service authorization for the $7 billion Atlantic Coast gas pipeline to cross national forests, the court said the agency’s violations of federal environmental and forest management laws would disappoint even the Lorax, and further found that the National Forest Service had abdicated its responsibility in not speaking for the trees. The court went further saying that “it is nothing short of remarkable that the Forest Service — the federal agency tasked with maintaining and preserving the nation’s forest land — takes the position that . . . a project specific amendment, no matter how large, will rarely, if ever, cause a substantial adverse effect on a national forest.” The panel went on to say that “ . .[i]t is even more remarkable that the agency is unable to say what would constitute a substantial adverse effect on the forest.”
The pipeline would have stretched 605 miles through three states from West Virginia to North Carolina. The ruling also found that the Forest Service had acted arbitrarily and capriciously by changing its forest management plans to accommodate the project and by not fully considering alternative routes that would reduce the pipeline’s damage to national forest land, and violated NEPA by “failing to take a hard look at the environmental consequences” to the national forests it would cross.
This decision demonstrates that agencies cannot simply ignore environmental concerns that were previously raised simply because there is a new federal administration that is more supportive of a development than the previous one. The court said that based on the sequence of events, the decision to grant the permit appeared to be “pre-ordained” rather than subject to a serious environmental review. So, at least the 4th Fourth circuit has acknowledged that the Lorax is still speaking for the trees.