March 8, 2019
Mr. P. Daniel Smith
National Park Service
1849 C Street NW
Washington, DC 20240
Dear Mr. Smith:
The Coalition to Protect America’s National Parks (“Coalition”) is writing with regard to the National Park Service’s (“NPS”) environmental review of the proposed Atlantic Coast Pipeline (“Pipeline”) that will cross the Blue Ridge Parkway (“Parkway”), a National Park System unit, and a segment of the Appalachian National Scenic Trail (“ANST”) that the Fourth Circuit recently held falls under NPS’s jurisdiction. On January 16, 2019, NPS moved for a voluntary remand of the right-of-way permit and special use permit (collectively, “ROW”) issued to Atlantic Coast Pipeline, LLC (“ACP”) authorizing the construction of the Pipeline across the Parkway to allow NPS to “further consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the Parkway is appropriate.” See Fed. Resp’ts’ Unopposed Mot. for Voluntary Remand at 5, Sierra Club v. U.S. Dep’t of the Interior, No. 18-2095 (4th Cir. Jan. 16, 2019), ECF No. 50. The Fourth Circuit granted NPS’s motion on January 23, 2019. See Order, Sierra Club v. U.S. Dep’t of the Interior, No. 18-2095 (4th Cir. Jan. 23, 2019), ECF No. 51. The Coalition writes to draw NPS’s attention to particular issues in the agency’s environmental analysis and recommend the course of action on voluntary remand that is not only legally required, but also in furtherance of the purposes of the Parkway and the ANST, and the public interest.
A. The Coalition To Protect America’s National Parks’ Interest In NPS’s Decision.
With more than 1,600 members, the Coalition consists mainly of retired NPS officials, including: former NPS directors; associate and regional directors; superintendents; rangers, and specialists with expertise in subject matter areas such as the NPS Organic Act, National Environmental Policy Act (“NEPA”) compliance; historic, natural, and cultural resource preservation; and natural resource management and science. These NPS experts, all of whom serve on a volunteer basis, formed the Coalition in 2003 to advance the preservation and protection of America’s national park areas and the central mission of NPS—the “conservation mandate” of the NPS Organic Act. See Coal. to Protect Am. Nat’l Parks, About the Coalition, https://protectnps.org/membership-2/who-we-are/. The Coalition collectively represents nearly 40,000 years of professional stewardship experience in protecting America’s most precious and important natural and historic places. See id.
The Coalition has long supported NPS in its efforts to uphold its “conservation mandate,” and has worked with the agency to decry any attempt to recast that mandate as one where non-conservation interests are balanced against conservation concerns. For example, in National Parks Conservation Ass’n v. U.S. Department of the Interior, after the district court suggested that NPS was allowed to prioritize recreation over preservation under the principle of “multiple use management,” see 46 F. Supp. 3d 1254, 1283 (M.D. Fla. 2014), the Coalition filed an amicus brief arguing that the district court erred in applying the phrase “multiple use management”—a term of art in federal land management used in reference to most lands managed by the Bureau of Land Management and the Forest Service in accordance with those agencies’ multiple use mandates—to NPS because “multiple use management” is incompatible with the conservation mandate that applies to all National Parks. In its brief, the Department of Justice agreed, stating:
In the view of the federal appellees, the district court’s use of the term “multiple use management” was infelicitous and is susceptible to misinterpretation. “Multiple use management” is generally understood to be a term of art under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §1701 et seq. The court’s citation to Norton v. S. Utah Wilderness Alliance suggests that the court used the term “multiple use management” in the FLPMA sense. If so, the court erred. FLPMA governs the management of public lands administered by the Secretary of the Interior through the Bureau of Land Management, not the Secretary’s management of the National Park System through NPS. Id. §1702(e). Moreover, NPS generally does not interpret the enabling legislation for an individual unit of the National Park System to alter (“tweak”) the Organic Act’s conservation mandate in 16 U.S.C. § 1. See 2006 Management Policies 1.4.1.
Answering Br. for the Fed. Defs.-Appellees, Nat’l Parks Conservation Ass’n v. U.S. Dep’t of the Interior, 835 F.3d 1377 (11th Cir. 2016) (Nos. 14-15326, 15-11599). Ultimately, the Eleventh Circuit agreed with this position, holding that “[a]gency decisions that fail to promote conservation over recreation run contrary to the express directives of Congress and cannot be upheld.” Nat’l Parks Conservation Ass’n, 835 F.3d at 1386.
The Coalition’s participation in the Pipeline review and litigation and the precedent cited above is important not only as an affirmation of the mission of NPS in its management of the National Park System, but also as the guiding principle for remand. Up to this point, NPS’s actions to issue the ROW has not been in furtherance of its conservation mission, but have instead given short shrift to its statutory duties in favor of enabling the Pipeline to cross the Parkway and the ANST in a manner and at a location that serve the interests of the ACP and not the American public or their protected resources held in trust by NPS. Through this letter, the Coalition is recommending a course of action that will return NPS to its traditional and legally-required role of conservation and fulfillment of the values and purposes of the areas under its jurisdiction. As discussed in this letter, NPS can achieve this objective through compliance with NEPA and the identification of alternatives for final action that will provide the Pipeline with viable options that do not adversely impact the Parkway or the ANST.
The Chair of the Coalition is Philip A. Francis, who is a former superintendent of the Parkway and oversaw completion of the Parkway’s 2013 General Management Plan (“GMP”). When NPS relied upon a Categorical Exclusion (“CE”) to issue a ROW for the Pipeline to cross the Parkway, Mr. Francis wrote to NPS on behalf of the Coalition and urged NPS not to grant the ROW because of the serious adverse effects that the Pipeline will have on the Parkway and to engage in additional public review under NEPA. See Coal., Coalition Voices Concern About Atlantic Coast Pipeline, https://protectnps.org/coalition-voices-concern-about-atlantic-coast-pipeline/ (“Francis Ltr.”). That letter is attached and incorporated by reference herein. See Attach. A.
NPS’s issuance of a ROW to ACP authorizing the Pipeline’s construction across the Parkway was challenged in Sierra Club v. National Park Service, No. 18-2095 (4th Cir. Sept. 20, 2018). Because of their experience in safeguarding the National Park System, and specifically the Parkway, together with the National Parks Conservation Association, the Coalition submitted an amicus brief on behalf of Petitioners explaining how NPS neglected its duties under the NPS Organic Act and NEPA to ensure that its actions will leave the National Park System unimpaired for future generations and to assess fully the environmental impacts of actions that will have significant, adverse effects on the National Park System. The amicus brief is attached and incorporated by reference herein. See Attach. B.
B. Legal Challenges To The Pipeline Leading To A Voluntary Remand.
In Cowpasture River Preservation Association v. U.S. Forest Service, a case challenging the U.S. Forest Service’s issuance of a special use permit to ACP authorizing the construction of the Pipeline through parts of the George Washington and Mongahela National Forests (“GWNF” and “MNF,” respectively) and granting a right of way across the ANST, the Fourth Circuit determined that the ANST “is land in the National Park System” that is to be administered by NPS, and thus, the Forest Service lacked authority under the Mineral Leasing Act to issue pipeline rights-of-way across lands on the Appalachian Trail, even though the Forest Service manages land underlying components of the ANST. See Cowpasture River Preservation Association v. U.S. Forest Service, 911 F.3d 150, 179 (4th Cir. 2018).
In light of the Fourth Circuit’s vacatur of the Forest Service’s permit in Cowpasture, NPS moved for a voluntary remand of its ROW decision in Sierra Club—the case challenging NPS’s issuance of a ROW and CE to ACP for the Pipeline’s crossing of the Parkway—so that it could reconsider its authority to issue pipeline permits to cross the ANST and the Parkway. Fed. Resp’ts’ Unopposed Mot. for Voluntary Remand, supra at 5. NPS further argued that remand was “appropriate because, in light of new arguments presented in Petitioners’ opening brief regarding NEPA and NHPA, the Park Service must reconsider its determinations regarding the impact of the right-of-way on the environmental and cultural resources of the Parkway.” Id. at 5-6. NPS reported that Petitioners and Intervenors consented to its motion. Id. at 1. The Fourth Circuit granted NPS’s motion on January 23, 2019.
On January 28, 2019, ACP submitted a Petition for Rehearing En Banc to the Fourth Circuit of the panel decision in Cowpasture River. See Petition for Rehearing En Banc, Cowpasture River Preservation Ass’n v. U.S. Forest Serv., No. 18-1144 (4th Cir. Jan. 28, 2019), ECF No. 114. Particularly relevant here, ACP argued that the Fourth Circuit panel “erred in converting much . . . of the Appalachian Trail into National Park System land that a pipeline cannot cross under without congressional authorization.” Id at 8. On February 11, 2019, the Forest Service also filed a Petition for En Banc and Panel Rehearing, arguing that “[r]ehearing is warranted because the panel’s holding ‘involves a question of exceptional importance’ regarding the government’s ability to authorize pipeline and other infrastructure on federal lands traversed by the Appalachian Trail in states within the jurisdiction of this Court.” Fed. Petition for En Banc and Panel Rehearing at 5, Cowpasture River Preservation Ass’n v. U.S. Forest Serv., No. 18-1144 (4th Cir. Feb. 11, 2019), ECF No. 124 (quoting Fed. R. App. P. 35(a)(2)). Both ACP and the Forest Service argued that rehearing and/or en banc review was necessary because the panel decision would effectively preclude any pipelines from crossing the ANST, forming a barrier to natural gas infrastructure development on the East Coast. However, as discussed below, these concerns are vastly overstated.
On February 25, 2019, the Fourth Circuit denied the Forest Service and ACP’s petitions. See Denise Lavoie, Court Won’t Revisit Ruling That Tossed Atlantic Coast Pipeline’s Permit to Cross Appalachian Trail, Richmond Times-Dispatch (Feb. 25, 2019), available at https://www.richmond.com/news/virginia/court-won-t-revisit-ruling-that-tossed-atlantic-coast-pipeline/article_3c32594d-4d7a-5bfc-a014-090c23423704.html.
A. The NPS Organic Act, As Amended.
Unlike most other federal lands, the National Park System’s sole purpose is conservation. Mich. United Conservation Clubs v. Lujan, 949 F.2d 202, 207 (6th Cir. 1991) (“[U]nlike national forests, Congress did not regard the National Park System to be compatible with consumptive uses.”). To that end, Congress has mandated that the management of the units of the National Park System, including the authorization of activities therein, must adhere to those conservation values and purposes for which the units were established (absent specific legislation to the contrary). 54 U.S.C. § 100101(b). Additionally, the 1970 Amendments to the Organic Act reaffirm Congress’s intention that NPS manage all National Park units in accordance with its conservation mandate, no matter what the unit’s particular designation, providing that “individually and collectively, these areas derive increased national dignity and recognition of their superb environmental quality through their inclusion jointly with each other in one System preserved and managed for the benefit and inspiration of all the people of the United States.” 54 U.S.C. § 100101(b)(1)(C); see also id. § 100101(b)(1)(D) (declaring that “it is the purpose of this division to include all these areas in the System and to clarify the authorities applicable to the System” (emphasis added)).
Thus, NPS must determine that any activities it permits in National Park units—including the Parkway, 16 U.S.C. § 460a-2, and the Appalachian Trail, 16 U.S.C. § 1244(a)(1)—are not in “derogation” of this “conservation mandate.” Id. In making such a determination, NPS must evaluate the proposed use for “consistency with applicable laws, executive orders, regulations, and policies; consistency with existing plans for public use and resource management; actual and potential effects on park resources and values; total costs to the Service; and whether the public interest will be served.” NPS Mgmt. Policies § 8.1.2 (2006).
Subject to making the required consistency determinations, NPS may grant utility ROWs over lands it administers pursuant to the statutory authority contained in the Organic Act, as amended, which limits NPS’s discretion to grant ROWs only for the following uses: electrical power transmission and distribution; radio, telephone, TV, and other forms of communication facilities; and water conduits. 54 U.S.C. § 100902; see also 36 C.F.R. part 14 (giving general authority to NPS to grant ROWs across National Park System units for the interstate and defense highway system, power transmission lines, radio and television sites, and telephone and telegraph lines); NPS Mgmt. Policies § 8.6.2.
There are no general NPS statutory authorities for gas pipelines. See NPS Mgmt. Policies § 184.108.40.206. “However, such authorization is sometimes contained in park-specific enabling legislation.” Id. Significantly, NPS regulations provide that “leasing under the mineral leasing laws are prohibited in park areas except as authorized by law.” 36 C.F.R. § 5.14. This regulation does not apply to non-federally owned lands, unless those lands are administered by NPS pursuant to the terms of a written agreement, or the regulation is “necessary to fulfill the purpose of the [NPS] administered interest and compatible with the nonfederal interest” on lands over which NPS has less-than-fee interest (e.g., a right-of-way). See 36 C.F.R. § 1.2.
B. The Blue Ridge Parkway Enabling Legislation.
Congress added the Parkway to the National Park System in 1936. 16 U.S.C. § 460a-2. Under the establishment act for the Parkway, NPS may issue ROWs only “for such purposes and under such . . . conditions as [it] may determine to be not inconsistent with the use of such lands for parkway purposes.” 16 U.S.C. § 460a-3. Hence, even though the consumptive use of an ROW is potentially allowed in the Parkway, NPS must first make a valid determination that the pipeline is consistent with the Parkway’s protected scenic, natural, and cultural values, and the public’s enjoyment thereof. See 54 U.S.C. § 100101(a) (defining the National Park System’s purposes).
The Parkway’s 2013 General Management Plan (“GMP”) sets forth the Parkway’s protected purposes: to “connect . . . national parks by way of a ‘national rural parkway’—a destination and recreational road that passes through a variety of scenic ridge, mountainside, and pastoral farm landscapes”; “conserve the scenery and preserve the natural and cultural resources of the parkway’s designed and natural areas”; “provide for public enjoyment and understanding of the natural resources and cultural heritage of the central and southern Appalachian Mountains”; and “provide opportunities for high-quality scenic and recreational experiences along the parkway and in the corridor through which it passes.” Blue Ridge Parkway GMP 9.
C. The ANST and The National Trails System Act.
Congress designated the ANST as a National Scenic Trail administered by the Secretary of the Interior, who delegated that duty to NPS. See 16 U.S.C. § 1244(a)(1). Consistent with the Organic Act, as amended, the ANST has been administered by NPS as a unit of the National Park System for over 50 years. See 54 U.S.C. § 100101(b)(1)(D); see also Wendy Janssen, National Park Getaway: Appalachian National Scenic Trail, NPS, available at https://www.nps.gov/articles/getaway-appa.htm (Oct. 12, 2018) (noting that 2018 marked the ANST’s “50th anniversary as a unit of the National Park System” (emphasis added)).
The National Trails System Act authorizes the Secretary of the Interior to “grant easements and rights-of-way upon, over, under, across, or along any component of the national trails system in accordance with the laws applicable to the national park system . . . : Provided, That any conditions contained in such easements and rights-of-way shall be related to the policy and purposes” of the Act. 16 U.S.C. § 1248(a).
NEPA is the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a), and is “binding on all Federal agencies,” id. § 1500.3. Its purposes are to “help public officials make decisions that are based on understanding of environmental consequences, and to take actions that protect, restore, and enhance the environment,” and to “insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” Id. §§ 1500.1(b), (c). To accomplish these goals, NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major federal actions” that may “significantly affect the quality of the human environment.” 42 U.S.C. § 4332(c). The EIS must describe (1) “the environmental impact of the proposed action,” (2) “any adverse environmental effects which cannot be avoided,” and (3) “alternatives to the proposed action.” 42 U.S.C. § 4332(C)(i)-(iii). Agencies must circulate draft and final EISs for public comments, 40 C.F.R. § 1503.1, and must “assess and consider comments both individually and collectively, and shall respond” to such comments in the final statement, id. § 1503.4. When an agency is uncertain as to whether an EIS is required, the agency may prepare an Environmental Assessment (“EA”), which must “provide sufficient evidence for determining whether to prepare” an EIS, “[a]id an agency’s compliance with the Act when no [EIS] is necessary,” and “[f]acilitate preparation of an EIS when one is necessary.” 40 C.F.R. § 1508.9.
The only circumstances in which an agency may avoid preparing either an EIS or an EA is when the agency action is lawfully “categorically excluded” from NEPA review. A CE is a “category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect” by an agency through its NEPA implementing regulations. 40 C.F.R. § 1508.4. Yet even if a proposed action would otherwise fall within a CE, an agency must prepare an EIS or EA when certain circumstances enumerated in the agency’s regulations exist. Id. § 1508.4.
E. Public Process and Participation Mandates.
Public participation in decisions affecting National Park resources “ensure[s] that the Service fully understands and considers the public’s interests in the parks, which are part of the public’s national heritage, cultural traditions, and community surroundings.” NPS Mgmt. Policies § 2.1.3. Accordingly, several laws and internal policies require NPS to provide ample opportunities for public participation in planning and decisionmaking. During the NEPA process, agencies must solicit public comment on EISs, id. § 1503.1, and NPS also “must, to the extent practicable, provide for public notification and public involvement when an [EA] is being prepared.” 43 C.F.R. § 46.305(a). Even where a CE is used, NPS’s NEPA Handbook recommends soliciting public comment “in situations where there is a high degree of public interest or uncertainty regarding potential effects of a proposed action,” as “[p]ublic input can help identify environmental issues and provide information that will help determine whether any extraordinary circumstances exist.” NPS NEPA Handbook 30.
Moreover, NPS policies provide that in its own decisionmaking process, the agency “will actively seek out and consult with existing and potential visitors, neighbors, American Indians, other people with traditional cultural ties to park lands, scientists and scholars, concessioners, cooperating associations, gateway communities, other partners, and government agencies.” NPS Mgmt. Policies § 2.1.3.
A. Assuming that NPS Has Discretion to Authorize a Pipeline Across the ANST, NPS Must Conduct Its Own Environmental Analysis Of The Pipeline’s Impacts On The ANST.
1. NPS Lacks Discretion To Authorize a Pipeline Across the ANST.
At the outset, it is clear that NPS lacks the authority to issue a pipeline ROW across the ANST. The authority to permit a gas pipeline across Federal lands is provided by the Mineral Leasing Act (“MLA”), which authorizes the “Secretary of the Interior or appropriate agency head” to grant gas pipeline ROWs across “Federal lands.” 30 U.S.C. § 185(a). This authority, however, is not absolute. As explained by the Fourth Circuit, the MLA expressly “excludes lands in the National Park System” from its ambit, meaning that neither the Secretary of the Interior, nor any other “appropriate agency head” can grant gas pipeline ROWs across National Park lands unless authorized under another statute. Cowpasture River, 911 F.3d at 180 (quoting 30 U.S.C. §§ 185(a), 185(b)(1)). Because the ANST is indisputably land in the National Park System, see 16 U.S.C. § 1244(a)(1) (designating the ANST as a National Scenic Trail “administered . . . by the Secretary of the Interior,” who delegated that duty to NPS (emphasis added)); 54 U.S.C. § 100501 (“The [National Park] System shall include any area of land and water administered by the Secretary, acting through the Director, for park, monument, historic, parkway, recreational, or other purposes.” (emphases added)); accord Cowpasture River, 911 F.3d at 180, and there is no other statute authorizing NPS to grant a pipeline ROW across the ANST, NPS is barred from issuing an ROW to ACP for the Pipeline to cross the ANST. Significantly, NPS’s own statements “indicate it does not have authority under the MLA to grant pipeline rights of way across the ANST.” See Cowpasture River, 911 F.3d at 180.
Nor can the Forest Service—or any other agency—issue a pipeline ROW across the ANST. The National Trails System Act “is clear that the Secretary of the Interior administers the entire ANST, while ‘other affected State and Federal agencies,’ like the Forest Service, manage trail components under their jurisdiction.” See id. at 181 (citing 16 U.S.C. §§ 144(a), 1246(a)). Accordingly, the Forest Service “is not the ‘appropriate agency head’ for the ANST,” and as such, lacks the “statutory authority to grant pipeline rights of way across the ANST pursuant the MLA.” Id. To the contrary, such authority, if it existed, would lie exclusively with NPS. Accord Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 289-293 (4th Cir. 2018) (finding that the MLA “leaves intact NPS’s right-of-way-authority” to permit pipeline rights of way across National Park System lands, provided that the right-of-way complies with applicable statutes governing the National Park System). However, as established above, NPS does not have the statutory authority under the MLA to grant a pipeline ROW across the ANST. Cf. id. (noting that to interpret the Mineral Leasing Act and the National Trails System Act to give the Forest Service authority to issue a pipeline ROW across the ANST “would give the Forest Service more authority than NPS on National Park System land,” which “defies logic”).
Finally, based on its members’ extensive experience in permitting ROWs across National Park System units in general, and the ANST and the Parkway in particular, the Coalition can definitively report that the Forest Service’s and ACP’s concerns in their respective rehearing petitions are greatly exaggerated. Indeed, nearly all existing crossings of the Appalachian Trail by oil or gas pipelines are located on state or private land, predate federal ownership of the land, or are the result of legislative action. The Fourth Circuit’s decision does not affect those existing pipelines.
The ANST does not form an impenetrable barrier to the construction of natural gas pipelines across the East Coast of the United States. To the contrary, the Pipeline’s crossing—or, indeed, any natural gas pipeline crossing—could easily be rerouted to cross the ANST in such a way as to avoid federal land. NPS has entered into multiple “cooperative agreements with landowners, private organizations, and individuals to provide the necessary trail right of way” for the ANST where it has otherwise been unable to acquire the land in fee for the ANST. See 12 U.S.C. § 1246. Although there is no general natural gas pipeline ROW applicable to the ANST that would permit a pipeline crossing on federal land, see NPS Mgmt. Policies § 220.127.116.11, nothing in the applicable statutes or regulations prevents ACP from working with non-federal landowners to route the Pipeline crossing across the ANST on non-federal land. In fact pursuant to NPS regulations and policies, when on non-federal land, NPS possesses a negotiated right-of-way that, depending on the agreement and retained rights of the landowner, could—and indeed, has—allowed for pipeline crossings of the ANST. See 36 C.F.R. § 1.2 (providing that the regulations governing National Park System lands—including the prohibition on mineral leasing—are not applicable on “non-federally owned lands” unless those lands are administered by NPS pursuant to the terms of a written agreement, or the regulation is “necessary to fulfill the purpose of the [NPS] administered interest and compatible with the nonfederal interest” on lands over which NPS has less-than-fee interest). Therefore, by rerouting the Pipeline to avoid federal land, ACP’s route would cross the ANST on land not subject to NPS authority, which would obviate the need for federal ROWs and allow the project to proceed. When viewed in this proper light, it is clear that by ensuring that natural gas pipelines can only cross the ANST on non-federal land or after specific authorization from Congress, the Fourth Circuit gave effect to the clear intent of Congress in enacting the MLA, Organic Act, and National Trails System Act—to ensure that these precious resources remain unimpaired for the enjoyment of generations of Americans to come.
Both rehearing petitions proclaim, in alarmist tones, that should the Cowpasture decision hold, the ANST will serve as impenetrable barrier to pipelines, portending serious negative energy and economic consequences. However, the history of the administration of the ANST refutes these assertions. As NPS itself is aware, the ANST has been effectively managed over many decades to facilitate pipeline and other utility crossings in an environmentally-sensitive and efficient manner. Indeed, there are 55 pipeline crossings of the ANST at 34 unique locations. Of these, 14 are on nonfederal land. Another 20 are on parcels owned by the National Park Service. No existing pipeline crosses the Appalachian Trail on a parcel owned by the National Forest Service. The Forest Service has never issued a right-of-way for an oil or gas pipeline to cross the Appalachian Trail on a National Forest.
Federal lands have not been a barrier for the development of needed pipeline infrastructure in the eastern states. Many existing pipelines cross the trail pursuant to property rights that predate federal ownership or the creation of the Appalachian Trail. New pipelines have been constructed as well. Some cross on state or private lands. A 2016 expansion of the Transco pipeline network, for example, crossed the Appalachian Trail on Pennsylvania State Game Lands after donating property to expand the game lands. And in 2014, a reroute of the Appalachian Trail allowed an extension of the Columbia gas pipeline to avoid crossing the Trail on federal property near Pearisburg, VA. Other pipelines have been built across federal land. In 2002, for example, the National Park Service approved a special use permit to the East Tennessee Natural Gas Company’s Patriot Project to cross the Appalachian Trail on land owned by the National Park Service. Because the new pipeline was sited in an easement for an existing pipeline, no new right-of-way under the Mineral Leasing Act was required. And in 1990, the Iroquois National Gas Transmission System obtained approval to cross the Appalachian Trail in Connecticut, pursuant to a land exchange with the National Park Service. These many instances demonstrate how pipeline operators and proponents have been unable to manage crossings when committed to doing so without harming the ANST. ACP, FERC and the Forest Service, did not follow such a course, and instead failed to seriously consider alternatives that would have avoided the legal dilemma they now confront. NPS simply cannot allow a pipeline crossing of the ANST, particularly where clear reasonable alternatives are available. See Section D.2., infra.
In sum, it is clear that NPS lacks the discretion under the MLA and National Trails System Act to grant a ROW to ACP, and as such, must reject ACP’s ROW request. Accordingly, no further NEPA review is necessary. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 770 (holding that where an agency lacks discretion to make a decision, it need not consider the effects in a NEPA process).
2. Assuming that NPS Has Discretionary Authority To Issue a ROW Across the ANST, An Exercise of that Discretion Must be Informed by NPS’s Own NEPA Review.
However, should NPS reverse its previous position, or should NPS otherwise be deemed to have the authority to issue a pipeline ROW across the ANST, NPS must undertake its own, independent environmental analysis of the Pipeline’s impacts on the ANST that complies with NPS’s obligations under NEPA before it can proceed with any decisions; it cannot rely on the fatally flawed EIS generated by the Federal Energy Regulatory Commission (“FERC”), the lead agency charged with supervising the preparation of the EIS under NEPA, to satisfy its obligations to evaluate the Pipeline’s impacts on the ANST. See 40 C.F.R. § 1501.5. While an agency may adopt the EIS of another agency, it may only do so where the EIS “meet the standards for an adequate statement” under NEPA regulations. 40 C.F.R. § 1506.3. FERC’s EIS cannot meet these standards for several reasons.
FERC’s EIS does not assess the alternatives to, or impacts of the Pipeline in light of NPS’s conservation mandate under the National Trail Systems and Organic Acts. NEPA requires that an EIS examine “all reasonable alternatives” to a proposed project. 40 C.F.R. § 1502.14. “Reasonable alternatives” are those “practical and feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.” Cape Hatteras Access Preservation All. v. Jewell, 28 F. Supp. 3d 537, 550 (E.D.N.C. 2014) (quoting Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026–01 (March 23, 1981)). Although the scope of reasonable alternatives is informed by a permit applicant’s objectives, it is the federal agency that must “take responsibility for defining the objectives of an action and then provide legitimate consideration to alternatives that fall between the obvious extremes.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1175 (10th Cir. 1999). In so doing, the agency must “always consider the views of Congress, expressed . . . in the agency’s statutory authorization to act.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991). “The existence of reasonable but unexamined alternatives renders an EIS inadequate.” Cape Hatteras Access, 28 F. Supp. 3d at 550 (quoting Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998)).
FERC’s EIS eliminated several alternatives from detailed examination that were practical and feasible, and would have avoided impacts to the ANST and national park resources. FERC’s EIS Section 18.104.22.168states, in part:
“The NPS has indicated that it does not have the authority to authorize a pipeline crossing of the ANST on its lands. Instead, legislation proposed by Congress and signed into law by the President would be necessary to allow the NPS the authority to review, analyze, and approve a pipeline crossing of the ANST on its lands. Because of this legislative process, Atlantic considered locations where the ANST was located on lands acquired and administered by the [Forest Service], which significantly constrained the pipeline route and severely limits opportunities for avoiding and/or minimizing the use of [National Forest System] lands.”
Fed. Energy Regulatory Comm., Atlantic Coast Pipeline and Supply Header Project: Final Environmental Impact Statement 3-18 to -19 (July 2017) [hereinafter “FERC EIS”]. In Section 22.214.171.124, the EIS also dismisses alternatives avoiding or minimizing impacts to the ANST and surrounding forest lands because FERC and ACP “have not identified or received any information that suggests the shorter pipeline route through the National Forests has significantly greater impacts on sensitive resources than the alternative, but acknowledge that ground resource surveys have not been conducted.” Id. at 3-19. NEPA and CEQ regulations require that where incomplete information “is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the [EIS].” 40 C.F.R. § 1502.22 (emphasis added). Information about the resources impacted by the alternatives that avoid NPS and National Forest System lands are clearly essential to a decision between alternatives. Moreover, the means to obtain such information—i.e., by resource surveys—are clearly known, and neither FERC, nor ACP allege that the costs of obtaining the information are exorbitant, particularly when measured against the potential harm to nationally protected forest and park resources. See id. § 1502.22(b) (allowing the agency to exclude from its EIS information essential to a reasoned choice only where the costs of obtaining it are exorbitant or the means to obtain it are not known). Even if such costs were exorbitant, the EIS fails to meet even the basic requirement that where there is incomplete information, the agency include “a summary of existing credible scientific evidence which is relevant to evaluating” reasonably foreseeable impacts, and an “evaluation of such impacts based upon theoretical approaches or research methods.” Id. Therefore, FERC’s conclusory statements dismissing the avoidance alternatives due to incomplete information are insufficient to meet NEPA’s information gathering and scientific integrity requirements, and it would be arbitrary and capricious for NPS to rely on them.
To the extent that NPS would dismiss avoidance alternatives because planning, design, and approvals would require additional time and may push back ACP’s desired schedule for completion of the Pipeline, we remind NPS that under NEPA and CEQ regulations, the reasons for dismissing alternatives do not include timeframes convenient to the applicant. See also Calvert Cliffs Coordinating Cmte., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114-15 (D.C. Cir. 1971) (holding that “[c]onsiderations of administrative difficulty, delay or economic cost will not suffice to strip [NEPA] of its fundamental importance”). In fact, alternatives cannot be dismissed because they are cheaper and faster. NPS NEPA Handbook, § 2.7A, B 2015.
FERC dismisses with minimal analysis several potential alternative routes (e.g., the Rockfish Gap and Love Gap road corridors) that would have “collocated” the Pipeline route within existing road or utility ROW corridors in order to minimize or avoid causing new adverse impacts to ANST resources, particularly scenic vistas. Collocation is a common principle for managing ROWs that transect linear parks within the National Park System. Such ROWs, where authorized, typically can only be allowed across park lands in limited circumstances and only then if resource impacts are minimized to the extent possible. In essence, collocation puts a priority on protecting park resources, where it should be in keeping with the Organic Act, rather than simply on the operational efficiency, cost savings, or convenience of the utility or pipeline operator. Despite the special protection afforded ANST resources under the Organic Act and the National Trail System Act, FERC dismissed the collocation alternatives, in essence, as being too difficult or inconvenient for ACP to construct and maintain. FERC’s cursory statements and reliance on administrative difficulties to avoid taking a hard look at these alternatives and their impacts is a flagrant violation of NEPA. See also Calvert Cliffs Coordinating Cmte., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114-15 (D.C. Cir. 1971) (holding that “[c]onsiderations of administrative difficulty, delay or economic cost will not suffice to strip [NEPA] of its fundamental importance”). NPS cannot rely on FERC’s arbitrary analysis to satisfy its own obligations under NEPA.
Frankly, it does not appear that avoidance and minimization of viewshed impacts to the ANST were an objective of the FERC planning effort. For example, a more thoughtful and creative version of the Rockfish and Love Gap alternatives (e.g., using a combination of trenching where feasible and HDD where trenching is not feasible) should be considered. Without analysis of all reasonable alternatives, it is impossible to select the best alternative for the proposed action. Further, without the opportunity to make an informed case for a preferred alternative that would cross National Park Service land, there is no chance to pursue the provided legal mechanisms to cross NPS lands even if the applicant and ATC are in mutual support.
Accordingly, NPS cannot rely on FERC’s EIS alternatives analysis to fulfill its own obligations under NEPA. See 40 C.F.R. § 1506.3 (allowing an agency to adopt another agency’s EIS only where the EIS “meets the standards for an adequate statement under these [NEPA] regulations”); 40 C.F.R. § 1502.14 (requiring agencies to “[r]igorously explore and objectively evaluate all reasonable alternatives”).
Likewise, FERC’s EIS fails to take a hard look at the impacts to the ANST, particularly in light of NPS’s statutory mandates under the National Trails System and NPS Organic Acts. NEPA obligates federal agencies to take a “hard look” at the environmental consequences of its actions. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). This “hard look” must “encompass a thorough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risks that those impacts entail.” Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th Cir. 2005). “Mere conclusions, unsupported by evidence or analysis, that the proposed action will not have a significant effect on the environment will not suffice to comply with NEPA.” Friends of Congaree Swamp v. Fed. Highway Admin., 786 F. Supp. 2d 1054, 1062-63 (D.S.C. 2011).
When those standards are applied here, it is clear that FERC’s EIS did not take the requisite “hard look” at the Pipeline’s impacts to the ANST, particularly in view of NPS’s overriding conservation mission. The section of NPS’s Management Policies aptly titled, “The NPS Obligation to Conserve and Provide for Enjoyment of Park Resources and Values,” famously states, in part:
“Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act.”
NPS Mgmt. Policies § 1.4.3 (2006). The ANST was established as a unit of the National Park System by the National Trails System Act of 1968. 16 U.S.C. § 1244(a)(1). Thus, like all other national parks in the system, it too must be left unimpaired for present and future generations. 16 U.S.C. § 1248(a). Numerous courts across the nation have affirmed that federal legislation, management directives and the purpose of our nation’s treasures must be managed to avoid impairment and derogation by unacceptable impacts. See, e.g., Bluewater Network v. Salazar, 721 F. Supp. 2d 7, 21 (D.D.C. 2010); S. Utah Wilderness All. v Dabney, 222 F.3d 819, 826-27 (10th Cir. 2000). In essence, the ANST, as a unit of the national park system, must therefore be protected from both internal and external derogation in order to adhere to its legislative purpose to, among other things, preserve scenic resources.
Although the Forest Service has an agreement with the NPS to cooperatively protect and manage the ANST, NPS ultimately is responsible for administering the ANST. See 16 U.S.C. § 1244(a)(1). However, there is no indication that NPS was meaningfully consulted in conducting the assessment of impacts to the ANST. To the contrary, it appears that NPS’s concerns were ignored, as NPS’s comments on the Visual Impact Assessment (“VIA”) were never meaningfully addressed. For example, although the final VIA purported to mitigate the impacts to the ANST by planting vegetation within the Pipeline’s corridor, NPS had previously objected to this mitigation measure, insisting that “because vegetation is ephemeral, it is not a reliable screen” Letter from Mark H. Woods, Superintendent, Blue Ridge Parkway, NPS, to Richard Grangle, Dominion Res. Servs., Inc 3 (Mar. 17, 2017) (“NPS Comments on VIA”). Moreover, the final VIA still shows extensive visual impacts to the foreground of the ANST at multiple locations. See, e.g., FERC EIS App’x T at 72. Finally, ACP only evaluated the visual impacts of the preferred Pipeline route alternative. It did not evaluate any of the collocated and avoidance route alternatives, leaving the decisionmaker and the public without a meaningful comparison of impacts, in violation of NEPA. See 40 C.F.R. § 1502.14 (requiring that agencies “present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public”). In essence, the analysis fails to adequately assess viewshed impacts of both the proposed Pipeline, and of a reasonable range of alternatives.
Given these concerns, a reasonable and prudent planning approach under NEPA would be to fully consider a range of reasonable alternatives that would avoid, or minimize to the extent possible, adverse impacts to ANST resources. This would certainly include giving serious consideration to collocation alternatives. It would also include a full range of effective mitigation measures to minimize unavoidable impacts, along with analysis of the effectiveness of those measures. However, the FERC EIS failed to do either.
Indeed, these alternatives that were summarily and improperly rejected by FERC as not reasonable, came into sharp focus as the best, if not only, for ACP to proceed due to the Fourth Circuit’s compelling decision in Cowpasture. Moreover, as discussed in this letter, crossing of the Parkway would also be unlawful under NPS legal authorities and considering the adverse impacts. Thus, the only alternatives that are reasonable are those that avoid crossing federal lands within either unit of the National Park System. Throughout the National Park System there are no doubt many projects that developers would seek to locate through areas under NPS management because they are cheaper or quicker or more direct. But that is the reason these protected areas exist — to set such areas aside in light of their special values and to require resource utilization activities to accept the premise that they must, as a threshold matter of planning and financing, find another way.
In sum, it is clear that FERC’s EIS failed to sufficiently study the impacts of the Pipeline on the ANST. Accordingly, NPS cannot rely on FERC’s EIS’s impacts analysis to fulfill its own obligations under NEPA. See 40 C.F.R. § 1506.3 (allowing an agency to adopt another agency’s EIS only where the EIS “meets the standards for an adequate statement under these [NEPA] regulations”); Balt. Gas & Elec. Co., 462 U.S. at 97 (noting that NEPA requires agencies to take a “hard look” at the environmental consequences of their actions).
As a freestanding matter, it is also clear that NPS cannot issue a pipeline ROW across the ANST. However, if NPS nevertheless proceeds with its decisionmaking process, it must conduct its own analysis of the environmental consequences of issuing a pipeline ROW across the ANST that complies with NEPA.
B. The Proposed Pipeline’s Crossings Of National Park Units Are Inconsistent With NPS’s Conservation Mandate.
1. The ANST.
Assuming, arguendo, that NPS has the statutory authority to permit a pipeline ROW across the ANST, NPS must first determine whether the pipeline is consistent with the conservation values and purposes for which the National Parks were established before an ROW can issue. The National Trail Systems Act permits NPS to grant a ROW across the ANST “in accordance with the laws applicable to the national park system” and “[p]rovided, [t]hat any conditions contained in such . . . [ROW] be related to the policy and purposes of this chapter.” 16 U.S.C. § 1248(a) (emphasis added). The primary law applicable to the national park system, the Organic Act, clearly states that the “fundamental purpose” of the national park system is to “conserve the scenery and the natural and historic objects and the wild life therein.” 16 U.S.C. § 1. Although NPS does have management discretion to allow impacts to park values and resources, it may only do so “when necessary and appropriate to fulfill the purposes of the park,” and even then, only “so long as the impact does not constitute impairment of the affected resources and values.” NPS Mgmt. Policies § 1.4.3. Accordingly, at the very least, NPS is required to exercise its discretion in a manner that is “calculated to protect park resources” and genuinely seeks to minimize adverse impacts on park resources and values. See Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183 (D.D.C. 2008) (citing Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 446 (D.C. Cir. 1995); NPS Mgmt. Policies, § 1.4.3).
As an initial matter, NPS has not yet assessed whether a pipeline ROW across the ANST is consistent with its conservation mandate under the Organic Act. It must do so before proceeding with any decision. See 16 U.S.C. § 1248(a). However, applying the above standards, it is clear that should NPS approve the Pipeline’s crossing of the ANST, its decision would violate the Organic Act.
First, the Pipeline would impair park resources and values. See Greater Yellowstone Coal., 577 F. Supp. 2d at 194 (“The Organic Act prohibits uses which impair park resources and values.”). NPS has defined impairment as an impact that “would harm the integrity of park resources and values, including the opportunities that otherwise would be present for the enjoyment of those resources or values.” Id. (quoting NPS Mgmt. Policies § 1.4.5).
Second and relatedly, the Pipeline would cause “unacceptable impacts.” See Greater Yellowstone Coal., 577 F. Supp. 2d at 194 (“[T]he Organic Act to prohibit[s] uses which cause ‘unacceptable impacts.’”). Unacceptable impacts are those that, “individually or cumulatively,” would be “inconsistent with a park’s purposes or values”; “impede the attainment of a park’s desired future conditions”; “create an unsafe or unhealthful environment for visitors or employees”; “diminish opportunities for current or future generations to enjoy, learn about, or be inspired by park resources or values”; “unreasonably interfere with park programs or activities, or an appropriate use, or the atmosphere of peace and tranquility, or the natural soundscape maintained in wilderness and natural, historic, or commemorative locations within the park.” Id.
As described in the FERC EIS and VIA, the Pipeline corridor to be constructed across the ANST and through the National Forest would create new visible intrusions as seen from key vista points along the ANST, and the adverse impacts to those vistas would result in the long-term impairment of the very viewsheds that the ANST was created to enable the public to enjoy. Thus, construction of the Pipeline across the ANST cannot be squared with NPS’s obligation to “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
2. The Parkway.
As extensively discussed in the amicus brief jointly submitted by the National Parks Conservation Association and the Coalition, see Attach. B, NPS’s consistency determination with regards to the Pipeline’s ROW across the Parkway remains seriously flawed, and cannot support a finding that the Pipeline is not inconsistent with park purposes. That discussion is incorporated by reference herein.
Nor can the Pipeline be made consistent with Parkway purposes. The mitigation measures proposed by ACP are wholly inadequate to minimize the damage to the scenic views that the Parkway was expressly established to conserve and provide.
As background, conservation of the rural landscape and scenery beyond the Parkway’s boundary has long been a primary concern of Parkway managers. A detailed summary of this longstanding management focus on “Conserving the Blue Ridge Parkway’s Scenic Corridor” is attached. See Attach. C. In addition, there is abundant information in the form of management documents and planning guidelines regarding objectives and strategies for minimizing the impacts of new development on Parkway scenic resources. These include: “A Neighbor’s Guide to the Blue Ridge Parkway – A how-to manual for building along the Parkway,” David P. Hill, Gary Johnson, David Anderson et al. 2009. Roanoke, Virginia: Hill Studio. See Attach. D; and the 2013 Blue Ridge Parkway Final General Management Plan and Environmental Impact Statement. See https://www.nps.gov/subjects/sound/upload/PIN_10419-BLUE_RIDGE_PARKWAY_FINAL_GENERAL_MANAGEMENT_PLAN_-_ENVIRONMENTAL_IMPACT_STATEMENT.pdf.
Given the significance that NPS has placed in the past on conserving the scenery beyond the Parkway boundary, it is surprising that NPS issued a ROW permit for the Pipeline based on inadequate environmental analysis. We cite several sources of information, including NPS’s own comments on the Visual Impacts Analysis, to summarize our key concerns about likely viewshed impacts to the Parkway and the inadequacy of proposed mitigation:
“This section of the Parkway [that would be affected] is zoned in the General Management Plan (GMP) as Historic Parkway. Although changes are not being directly made to the Historic Parkway zone, the Historic Parkway experience or visual experience of visitors will change because of the direct impact to the Parkway’s view shed. From both Ravens Roost and Three Ridges Overlooks the pipeline alignment will be a linear feature of cut vegetation in a nonlinear landscape. This would be an adverse impact to the Blue Ridge Parkway. . . . The Parkway would consider the change in the view at Ravens Roost as adverse. . . . A less visible alignment that utilizes current vegetative openings, road corridors and other existing landscape elements as suggested above should be addressed. According to the Park’s GMP, it would be the Parkway’s highest ranking that the view shed remains as it historically was, which would allow for little to no change of the visual scene.”
See NPS, Comments on ACP’s Visual Impact Assessment (Mar. 17, 2017).
“Based on information provided in the 2013 General Management Plan and EIS for the Parkway, scenery conservation [for the Parkway] works with the idea of a ‘Borrowed Landscape.’ Maintaining scenery viewed from overlooks and along the parkway road involves working with 29 county governments, private landowners, developers, and other agencies. Because the scenery is borrowed from adjacent lands that are not administered by the National Park Service, the parkway’s scenery system is not a direct control “management” system… The [Pipeline] right-of-way would cross only a relatively small amount of the NPS administered land within the BRP viewshed. Most of the land crossed by the [Pipeline] right-of-way and visible from the BRP is therefore a Borrowed Landscape.”
See FERC EIS App’x T at 25. Significantly, while HDD installation of the Pipeline underneath the Parkway may avoid direct impacts to Parkway lands, it does not resolve viewshed impacts caused by the prominent (i.e., clear cut) Pipeline corridor within view of KOPs along the Parkway.
“Impacts from the cleared right-of-way on the scenic character of the Park would be significant and negative unless additional steps were taken to lessen those impacts… Appendix T of the FERC further outlines additional steps to be taken by ACP that will help protect views from the Blue Ridge Parkway by reducing the contrast of the proposed pipeline corridor with additional plantings.”
See NPS, ROW Determination Memorandum 6-7 (Mar. 14, 2018). However, while the memorandum states that ACP would perform “additional steps” to reduce the severity of the viewshed impacts, NPS provides no analysis to support their finding of no significant impacts. “Mere listing of mitigation measures without supporting analysis is insufficient to support” a finding of insignificance. Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 889 (S.D.W.V. 2009) (quoting NPCA v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001)).
“Key Concern: Viewsheds at Raven’s Roost and Three Ridges Overlooks. Has Potential for impacts. Issue: View of pipeline corridor from two overlooks. Impact: …the [direct] impacts are directed to Forest Service land, not BLRI. There would be short- and long-term negative impacts to the viewshed from two overlooks due to the introduction of linear features into a natural landscape. However, mitigations in the FERC FEIS would allow vegetation plantings to lessen the width of the project viewshed from the Parkway; therefore, impacts would be lessened and there would be no significant impacts to the viewshed.”
See BLRI Environmental Screening Form, dated March 19, 2018). Again, NPS provides no analysis to support their finding of “no significant impacts” and “mere listing of mitigation measures without supporting analysis is insufficient to support a finding of insignificance.”
We could go on listing similar concerns, supported by references, regarding the potentially significant adverse impacts of the Pipeline on the Parkway, as well as the inadequacy proposed mitigation measures and lack of analysis to support the issuance of the ROW. Suffice it to say that the VIA demonstrates that the Pipeline’s proposed corridor will create new visual intrusions that will be obvious from the Parkway at several prominent overlooks. The impacts to these vistas would be adverse and long-term, in derogation of the values and purposes for which the Parkway was established.
Although the planning of infrastructure projects such as the Pipeline certainly implicates engineering and economic considerations, under the Organic Act, construction on lands set aside as part of the National Park System require that agencies and applicants prioritize the avoidance of adverse impacts to park resources. With the Parkway, this is particularly important to ensure that such construction “is not inconsistent with Parkway purposes” as required under the enabling legislation.
In essence, any new construction within the Parkway boundary or nearby and within view of the Parkway must be conceptualized, designed, and managed, in part, as a landscape conservation project. Whatever the constructed facility may be (e.g., residence, commercial property, or utility ROW, etc.), in order to conserve the historic views from the Parkway, the project builder must incorporate tangible design features into the project that would minimize resource impacts, including viewshed impacts. Regrettably, the clear-cut-in-a-straight-line design for the Pipeline adjacent to the ANST and the Parkway fundamentally fails to consider, much less incorporate, effective design features or mitigation measures that would avoid or minimize such impacts.
Thus, the Pipeline would indisputably “harm the integrity of park resources and values” and cause “unacceptable impacts,” in violation of the Organic Act. See Greater Yellowstone Coal., 577 F. Supp. 2d at 194. Accordingly, as a threshold issue the Pipeline is inconsistent with Parkway purposes and therefore NPS cannot issue ACP an ROW across the Parkway.
C. NPS Must Revoke the ROW And Withdraw Its CE For The ROW Across The Parkway.
As extensively discussed in the amicus brief submitted by the Coalition and the National Parks Conservation Association in support of Petitioners in Sierra Club II, NPS cannot invoke a CE to approve the construction and operation of a major pipeline project. Those arguments are incorporated by reference here. In short, a pipeline construction project plainly falls outside the definition of a CE, i.e., “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of the [NEPA] regulations.” 40 C.F.R. § 1508.4 (emphasis added); see also 43 C.F.R. § 46.205 (DOI regulations defining a CE as a “category or kind of action that has no significant individual or cumulative effect on the quality of the human environment”). Moreover, by its plain terms, the specific CE invoked by NPS, which applies only to the “[i]nstallation of underground utilities in previously disturbed areas having stable soils, or in an existing utility right-of-way,” does not apply to the Pipeline, which requires a new ROW through undisturbed areas. See 43 C.F.R. § 46.205(a) (Department of Interior’s NEPA regulations) (providing that if a “proposed action does not meet the criteria for any of the listed Departmental categorical exclusions . . . then the proposed action must be analyzed” in an EA or EIS).
Moreover, as detailed in the amicus brief, even if the Pipeline fell within a CE, which it does not, NPS cannot rely on the CE because “extraordinary circumstances” are present, 40 C.F.R. § 1508.4, including that the project may: have “significant impacts on such natural resources and unique geographic characteristics as historic or cultural resources; park, recreation or refuge lands . . . and other ecologically significant or critical areas”; have “highly controversial environmental effects”; entail “highly uncertain and potentially significant environmental effects, and involves unique or unknown environmental risks”; and “[e]stablish a precedent for future action, and represent a decision in principle about future actions with potentially significant environmental effects.” 43 C.F.R. § 46.215. Accordingly, NPS must withdraw its CE and immediately begin the preparation of an EIS, or at minimum, an EA, to evaluate the Pipeline’s impacts to National Park System lands.
D. The Pipeline Has Potentially Significant Impacts On The Parkway And The ANST That Must Be Analyzed In An EIS.
1. NPS Must Analyze The Environmental Consequences Of The Pipeline On The ANST And The Parkway In An EIS.
Potentially significant impacts to the “natural and physical environment,” as well as to the “relationship of people with that environment,” require consideration in an EIS, or at the very least, an EA. 40 C.F.R. § 1508.14. Here, NPS’s decision to issue a pipeline ROW across two national park units will result in impacts that easily fall within NEPA’s definition of “significant.” Accordingly, NPS must prepare an EIS to analyze the environmental consequences of its action before it may proceed with any decision regarding the Pipeline.
In determining whether an EIS is required, an agency must consider whether the proposed action has a “significant” effect on the human environment within the relevant “context.” Id. § 1508.27. “[T]he significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality.” Id. § 1508.27(a). The factors that an agency must consider in evaluating “significance” include “degree to which the proposed action affects public health or safety,” effects on “historic or cultural resources,” park lands, and sites “listed in or eligible for listing in the National Register of Historic Places,” as well as whether a project’s effects “are likely to be highly controversial,” the “degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks,” or if the “action may establish a precedent for future actions.” Id. § 1508.27(b). “NEPA requires consideration” of each of these factors before deciding whether to prepare an EIS. 40 C.F.R. § 1508.27(b).
The existence of even a single significance factor requires preparation of an EIS. See Fund for Animals, 281 F. Supp. 2d 209, 218-19 (D.D.C. 2003) (“[T]he presence of one or more of these factors should result in an agency decision to prepare an EIS.”); Humane Soc’y v. Johanns, 520 F. Supp. 2d 8, 20 (D.D.C. 2007) (same); Ark Initiative v. Tidwell, 64 F. Supp. 3d. 81, 99 (D.D.C. 2014) (same). Here, even a cursory examination of the proposed Pipeline’s interplay with NEPA’s significance factors inexorably leads to the conclusion that several of the significance factors are implicated in a substantial manner, therefore obligating NPS to prepare an EIS.
First, the “context” of this action demonstrates significant impacts at every level of consideration. Although even purely local impacts may be adequate to support the need for an EIS, see 40 C.F.R. § 1508.27(a) (“[I]n the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole.”), the project at issue is the rare federal action that will cause adverse effects not only in the “locale,” but also at the regional and national levels due to the importance of the affected historic and cultural resources to national history.
Running from Springer Mountain in Georgia to Mount Katahdin in Maine, the 2,181-mile long ANST follows the Appalachian mountain range through 14 states, including all but three of the original 13 colonies. ANST is visited by over three million people a year. Some of the most heavily visited areas are within the project area and would be visible to those seeking to experience the outstanding scenic, natural and cultural value of this National Scenic Trail. The ANST is unique due to the fact it is accessible to the highly populated East Coast and honored throughout the world as the longest footpath.
At 469 miles in length, the Parkway was the first national rural parkway to be conceived, designed, and constructed for a leisurely driving experience. The parkway is further recognized as an international example of landscape and engineering design achievements with a roadway that lies easily on the land and blends into the landscape. With over 16 million visitors annually, the parkway’s varied topography and numerous vista points offer easy public access to spectacular views of central and southern Appalachian rural landscapes and forested mountains. Its uninterrupted corridor facilitates the protection of a diverse range of flora and fauna, including rare and endangered plant and animal species and globally imperiled natural communities; and preserves and displays cultural landscapes and historic architecture characteristic of the central and southern Appalachian highlands.
Thus, when “the significance of [the] action” is “analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality,” 40 C.F.R. § 1508.27(a) (emphasis added), the need for an EIS to address the project’s impacts to iconic, irreplaceable resources at every scale becomes even more apparent.
Second, it is clear that the proposed Pipeline’s impacts on National Park System lands implicate several significance factors. As discussed in the amicus brief, the Pipeline will have significant impacts on the Parkway that are likely to be highly controversial, uncertain, and precedential. See supra Section C; see also 40 C.F.R. § 1508.27(b) (requiring consideration of whether proposed agency actions have significant effects on “historic or cultural resources,” park lands, and sites “listed in or eligible for listing in the National Register of Historic Places,” as well as actions that “are likely to be highly controversial,” “are highly uncertain or involve unique or unknown risks,” or “may establish a precedent for future actions”).
Moreover, the Pipeline will have significant impacts on the ANST, a unit of the National Park System and a historic and cultural resource, see 40 C.F.R. § 1508.27(b)(3) (requiring consideration of impacts to historic and cultural resources and park lands). The most significant adverse impacts to the ANST would be to the scenic views from prominent locations along the Trail. Although the proposed Pipeline route would be installed underneath the trail by horizontal directional drilling (“HDD”), with mitigation (e.g., warning signs) to protect hikers during construction, the cumulative and long lasting visual impacts of the ROW corridor within the National Forest would significantly impair the scenery for which the ANST was created.
Critically, NPS has never analyzed the Pipeline’s impacts to the ANST in any NEPA process.” Thus, by definition, the Pipeline’s impacts on the ANST “involve . . . unknown risks,” 40 C.F.R. § 1508.27(b)(5). Nor did NPS ever consider how the establishment of a pipeline across this historic and nationally important scenic trail will inevitably impact NPS’s evaluation of future proposals. See id. § 1508.27(b)(6) (requiring consideration of the precedential nature of agency actions). NPS must evaluate the significance of the Pipeline’s impacts on the ANST in a NEPA-compliant process before it can proceed with any decisions involving the Pipeline.
Most significantly, however, the Pipeline will have cumulatively significant impacts on two units of the National Park System that have never been analyzed. See 40 C.F.R. § 1508.27(7) (“Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.”). “Cumulative impacts” are those impacts “that result[ ] from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency … or persons undertakes such other actions.” 40 C.F.R. § 1508.7. “Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” Id. When actions “will have cumulative or synergistic environmental impact upon a region” and “are pending concurrently” before an agency, “their environmental consequences must be considered together.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976). Moreover, “significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. § 1508.27(7). To hold otherwise would undermine the purpose of this requirement—i.e., “to prevent agencies from dividing one project into multiple individual actions ‘each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.’” Nat. Res. Def. Council v. Hodel, 865 F.2d 288, 297 (D.C. Cir. 1988).
Where, as here, a proposed Pipeline will impact two units of the National Park System that are in close proximity to one another, and that will both impact the same viewsheds, NPS must examine the cumulative impacts of those crossings in a single NEPA document. See Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs, 109 F. Supp. 2d 30, 43 (D.D.C. 2000) (holding that where multiple riverboat casinos had been permitted all in close proximity to one another, the Army Corps was required to prepare an EIS on the basis of cumulative impacts alone). Both the Parkway and the ANST were created to protect the outstanding scenery for future generations. FERC’s EIS used a very constrained study area for visual impact analyses and does not acknowledge the cumulative impacts to both units. Moreover, there is no substantive visual impact assessment for other route alternatives, such as collocated and avoidance alternatives. Therefore, the analysis fails to provide any meaningful comparison of the visual impacts of alternatives relative to those of the preferred route alternative, in violation of NEPA. Finally, proposed mitigation measures are not fully analyzed to determine their potential effectiveness. Accordingly, NPS must assess the impacts of, and alternatives to, its decision to issue an ROW across multiple national park units in a single NEPA document.
In sum, because the project implicates multiple significance factors within a local, regional, and national context—and only one such factor need be satisfied for the EIS requirement to be triggered—NPS must prepare an EIS, or at minimum, an EA to evaluate the proposed Pipeline, its alternatives, and their impacts. Accord Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 590 (4th Cir. 2012) (providing that “the policy goals underlying NEPA are best served if agencies ‘err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.’” (quoting Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 18 (2d Cir. 1997))).
2. NPS Must Evaluate Reasonable Alternatives To The Pipeline’s Proposed Route That Will Avoid Impacts To The Parkway And ANST.
NEPA requires federal agencies to “evaluate all reasonable alternatives” and discuss the reasons for the elimination of alternatives from the study, 40 C.F.R. § 1502.14(a), as well as mitigation efforts related to each alternative, id. § 1502.14(f). This rigorous alternatives analysis is “the heart of the [EIS]” because it “present[s] the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public.” Id. § 1502.14. “The existence of reasonable but unexamined alternatives renders an EIS inadequate.” Cape Hatteras Access Preservation All. v. Jewell, 28 F. Supp. 3d 537, 550 (E.D.N.C. 2014) (quoting Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998)). “Reasonable alternatives” are those “practical and feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.” Id. (quoting Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026–01 (March 23, 1981)).
Applying those standards here, it is clear that, to satisfy its obligations under NEPA, NPS must develop a range of reasonable alternatives that, while informed by ACP’s objectives, nevertheless represents NPS’s definition of its own objectives and legitimate consideration of alternatives that fall between the obvious extremes. See Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1175 (10th Cir. 1999) (providing that the agency that must “take responsibility for defining the objectives of an action and then provide legitimate consideration to alternatives that fall between the obvious extremes”); Simmons v. U.S. Army Corps of Engrs., 120 F.3d 664, 669 (7th Cir. 1997) (“An agency cannot restrict its analysis to those ‘alternative means by which a particular applicant can reach his goals.’” (citation omitted)). In other words, NPS must thoroughly examine alternatives that avoid impacts to the Parkway and to the ANST for its analysis to pass muster under NEPA.
For the Parkway, any alternatives considered must be consistent with the 2013 GMP. NPS should rely heavily upon this document as context for determining whether the proposed Pipeline corridor is “not inconsistent with Parkway purposes” as required by the enabling legislation. Similarly, any alternatives for the ANST must be consistent with applicable laws, regulations, and management objectives. Conservation of park resources, including the scenic views from the Parkway and the ANST, must be a primary objective of the planning process, rather than an afterthought.
The analysis should fully consider alternate routes for the pipeline that would be collocated to the extent possible within existing utility or roadway corridor(s) to avoid the impacts that would inevitably be caused by creating a new ROW corridor. Suggested collocated ROW routes include: 1) The I-64 corridor across Rockfish Gap. Although FERC’s EIS briefly discusses this as an alternate route, it was summarily dismissed as “infeasible to construct” without providing adequate geologic or engineering analysis to support such a conclusion. Assuming arguendo that the Pipeline is found to be consistent with Parkway purposes and that NPS has the statutory authority to permit pipeline crossings of the ANST, the Coalition believes the use of HDD to underpass the most problematic sections of Rockfish Gap could be a viable option, until proven otherwise by a proper analysis, and should therefore be fully considered. 2) The SR 814 corridor near Love Gap along the Parkway. Such a route would follow SR 814 ROW from the west (near Love, VA), then pass west to east underneath Parkway lands via HDD, and resume following the SR 814 corridor east of the Parkway. If properly constructed and maintained, this route would be unlikely to increase the existing viewshed impacts of the roadway corridor.
If the alternatives include mitigation measures to reduce viewshed impacts of the Pipeline corridor through the adjacent National Forest, then the impact analysis should include a systematic evaluation of the likely effectiveness of those measures. Such an analysis should include vista impact modeling or simulations, based on the size, width, and routing of the maintained corridor that would be visible from locations along the Trail or Parkway. Although as a threshold matter, the Coalition does not believe that the Pipeline can be permitted to cross the Parkway or the ANST, should such authority be granted, NPS must properly route the Pipeline using existing ROW corridors and appropriate landscape design of pipeline clearings on National Forest System land to reduce viewshed impacts.
Lastly, NPS must consider all reasonable alternatives, including those that avoid NPS land altogether. See 40 C.F.R. § 1502.14 (providing that agencies “shall . . . include reasonable alternatives not within the jurisdiction of the lead agency” in their alternatives analyses under NEPA). Only after considering all alternatives and their environmental impacts can NPS make a reasoned choice.
3. Prior To Issuing An ROW For The Pipeline, NPS Must Take A Hard Look At The Direct, Indirect, And Cumulative Impacts Of The Proposed Pipeline And Its Alternatives.
NEPA obligates federal agencies to take a “hard look” at the environmental consequences of its actions. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). This “hard look” must “encompass a thorough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risks that those impacts entail.” Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th Cir. 2005). “Mere conclusions, unsupported by evidence or analysis, that the proposed action will not have a significant effect on the environment will not suffice to comply with NEPA.” Friends of Congaree Swamp v. Fed. Highway Admin., 786 F. Supp. 2d 1054, 1062-63 (D.S.C. 2011).
To date, NPS has failed to comply with this basic requirement under NEPA. In particular, by forgoing an EIS or even an EA, NPS failed to “obtain opinions from experts outside the agency, give careful scientific scrutiny, and respond to all legitimate concerns that are raised.” Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999) (citing Marsh v. Ore. Nat. Res. Council, 490 U.S. 360, 377 (1989)) (defining “hard look” for the purposes of NEPA review). To the contrary, NPS has failed to perform any evaluation to determine the extent of foreseeable environmental impacts, and instead, has ignored possible significant environmental impacts, or explained in conclusory form that they were not of concern.
As described in our amicus brief, it is particularly problematic that NPS issued a categorical exclusion to support its issuance of a ROW permit for the Pipeline, as it failed to take the requisite “hard look” at potential environmental impacts. Since both the Parkway and the ANST were created to protect the outstanding scenery for future generations, we are particularly concerned about the high potential for adverse and cumulative impacts to the visual resources of both the Parkway and the ANST. FERC’s EIS used a very constrained study area for visual impact analyses and did not acknowledge the cumulative impacts to both units that would result from the Pipeline’s construction. Further, the relative severity of viewshed impacts for different route alternatives, including collocated and avoidance routes, is not properly evaluated, and proposed mitigation measures are not fully analyzed to determine their potential effectiveness. Given that the Parkway and the ANST are two units of the National Park System, it is essential that NPS actively assume responsibility for their protection.
Moving forward, NPS must take a hard look at the direct, indirect, and cumulative impacts that the Pipeline will have on the Parkway and the ANST. As a practical matter, NPS should prepare a full EIS that is consistent with CEQ regulations and the guidance set forth in the NPS NEPA Handbook (2015). NPS’s EIS process would include opportunities for public comment at the public scoping stage and on the draft EIS. The EIS should consider a range of reasonable alternatives, including pipeline route alternatives that rely on collocation within existing ROWs to minimize new adverse impacts. Additional routing considerations could include curvilinear design and use of topographic features to minimize the visibility of the pipeline corridor from ANST and Parkway vista points.
As a fundamental planning principle, proper route selection through the National Forest is the key to avoiding and minimizing adverse impacts to ANST’s and Parkway’s scenic resources. Mitigation alone is insufficient to make up for a bad routing decision or a straight-line-clear-cut construction method. The EIS should include a suite of mitigation measures, including those that should be developed by landscape design professionals for this project, to further minimize viewshed impacts. Assuming arguendo that NPS can permit a gas pipeline across the ANST and the Parkway consistent with its statutory authorities, NPS is still obliged to select the route and mitigation measures that ensure park resources will not be impaired for future generations. See 54 U.S.C. § 100101(b). Under such circumstances, a combination of proper route selection through the National Forest collocated with existing ROWs, along with effective mitigation to further minimize impacts outside of parks lands, and the use of horizontal directional drilling (HDD) to completely avoid ground disturbance on park lands, is the only environmentally appropriate alternative.
In essence, NPS must fulfill its obligations under the NPS Organic Act and National Trails System Act to ensure the conservation of resources and values within these two units of the National Park System. Yet for this project the reality is that the severest adverse impacts to park resources would be caused by the proposed pipeline route through the National Forest. To fulfill its responsibility to conserve, NPS should fully utilize its primary leverage to minimize this “external threat” to park resources. And that would be to make any future NPS-issued ROW permit fully contingent upon proper routing and effective mitigation of the viewshed impacts should the Pipeline corridor be permitted to cross federal land consistent with applicable statutes.
The Coalition reiterates that NPS lacks the statutory authority to permit a gas pipeline ROW across the ANST when the trail crosses federal land. However, assuming arguendo that NPS does have such authority, the Coalition suggests NPS look to the Appalachian Trail Conservancy’s (“ATC”) well-considered “Policy on Pipeline Crossings of the Appalachian Trail” for guidance. See Attach. E. Significantly, consistent with its current authority, this policy could inform NPS’s collaboration with non-federal actors in cooperatively assessing gas pipeline crossings on non-federal land. The Coalition strongly agrees with ATC’s common-sense policy and encourages NPS to adopt it as its own pipeline policy for any future proposed crossing(s) of linear units of the National Park System where permitted by applicable statutory authorities.
Last but not least, NPS should seriously consider serving as a cooperating agency on any supplemental environmental planning that may be conducted by FERC or the Forest Service as a result of the Fourth Circuit’s vacatur of the Forest Service’s permit in Cowpasture. Presumably, those agencies may prepare new proposals and additional environmental analysis. In our experience, participating as a cooperating agency would better enable NPS to provide input and influence the decisionmaking process in the direction of protecting park resources and values.
4. NPS Must Fully Involve the Public In Its Environmental Review Process.
An EIS serves two functions: first, it ensures that agencies take a hard look at the environmental effects of proposed projects; and second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decisionmaking process. See Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446 (4th Cir. 1996) (citing Robertson, 490 U.S. at 349). Public participation is thus an indispensable component of the NEPA process. To date, NPS has failed to involve the public at any stage of its decisionmaking process for the Pipeline. As NPS prepares to engage in a more robust—and legally adequate—NEPA review process, it must comply with NEPA’s vital procedural requirements for ensuring that the public will be afforded a meaningful opportunity to be involved.
As a factual and legal matter, NPS must prepare an EIS for the Pipeline. See supra Section D.1 (discussing the multiple significance factors that the project implicates, any one of which is sufficient to require the preparation of an EIS); Friends of Back Bay, 681 F.3d at 590 (providing that “when it is a close call whether there will be a significant environmental impact from a proposed action, an EIS should be prepared” (quoting Hoffman, 132 F.3d at 18)). However, even if NPS initially prepares an EA to determine whether it must issue an EIS, the agency still must offer the public a meaningful opportunity to be involved. See 40 C.F.R. § 1501.4(b) (requiring agencies to “involve environmental agencies, applicants, and the public, to the extent practicable, in preparing [EAs]”). This is particularly true where, as here, either “[t]he proposed action is, or is closely similar to, one which normally requires the preparation of an [EIS], or [t]he nature of the proposed action is one without precedent.” See 40 C.F.R. § 1501.4(e)(2) (requiring agencies to circulate draft EAs for public comment where, as here, for the reasons explained above,); see also 46 Fed. Reg. at 18,037 (CEQ explaining that public comment is required on EAs where the action entails a matter of “scientific or public controversy”).
Presuming that NPS will fulfill its legal obligations under NEPA and prepare an EIS, NPS must first engage in the “scoping process,” which is designed to determine the scope of the issues to be addressed in the EIS and to identify significant issues related to the proposed action. See 40 C.F.R. § 1501.7. During this process, NPS “must, among other things, invite participation and input by federal, state, and local agencies, as well as the public.” Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 418 (4th Cir. 2012) (citing 40 C.F.R. § 1501.7; Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1022 (10th Cir. 2002)). The Coalition looks forward to engaging with NPS during the scoping process—and in subsequent steps in the NEPA process—and appreciates the opportunity to lend NPS its considerable expertise in the management and preservation of National Park System lands and resources.
In light of the Fourth Circuit’s ruling in Cowpasture and the serious deficiencies in NPS’s own NEPA process identified above, NPS should immediately undertake the preparation of an EIS to thoroughly examine the alternatives to, and impacts of, the Pipeline on National Park lands and resources. The potentially devastating impacts that the Pipeline will have on the Parkway and the ANST cannot be brushed aside. NPS must reexamine its decision in light of its responsibilities as steward of our National Park resources.
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
201 I Street, NE #805, Washington, DC 20002
cc: Robert Vogel, Southeast Regional Director
J.D. Lee, Superintendent, Blue Ridge Parkway
Lisa Mendelson-Ielmini, Acting National Capital Regional Director
Wendy Janssen, Superintendent, Appalachian National Scenic Trail
 Indeed, Congress specifically amended the Organic Act in 1970 and 1978 to require that all national park units, regardless of their nominal designation (e.g., “National Park”, “National Recreational Area”, “National Seashore”, etc.) be “manage[d] . . . uniformly with the fundamental goal of resource protection in mind.” See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1554, 1452 (9th Cir. 1996) (discussing the amendments). The House Report accompanying the 1970 amendments emphasized that the Organic Act’s provisions “should be applicable uniformly throughout the National Park System.” H.R. Rep. No. 91–1265. Accordingly, the Organic Act provides that “[t]he [National Park] System shall include any area of land and water administered by the Secretary, acting through the Director, for park, monument, historic, parkway, recreational, or other purposes.” 54 U.S.C. § 100501 (emphases added). The ANST is designated as a National Trail “administered . . . by the Secretary of the Interior,” 16 U.S.C. § 1244(a)(1) (emphasis added). Thus, the ANST—and indeed, all national trails administered by NPS—are indisputably units of the National Park System and are subject to the provisions and restrictions enumerated in the Organic Act. Accord Laura B. Comay, Cong. Res. Serv., National Park System: What Do the Different Park Titles Signify? 3 (Feb. 20, 2013) (reporting that NPS administers the national trails “as full park units”).
 ROW authority for National Park System lands for public utilities is found in the Organic Act, which specifically grants NPS authority to issue ROWs for public utilities including electrical wires, water and sewage lines, and telephone lines, see 54 U.S.C. § 100902. Neither the National Trails System Act, nor the Organic Act grant general authority for NPS to authorize gas pipelines across National Park System lands. See NPS Mgmt. Policies § 126.96.36.199 (providing that there are no general NPS statutory authorities for gas pipelines); accord 36 C.F.R. part 14 (providing general authority and procedures to NPS to grant rights of way across National Park System units exclusively for the interstate and defense highway system, power transmission lines, radio and television sites, and telephone and telegraph lines). The authority to grant ROWs for natural gas pipelines across federal lands is found exclusively in the Mineral Leasing Act, or in the enabling acts for individual National Park units. See 36 C.F.R. § 5.14 (providing that “leasing under the mineral leasing laws are prohibited in park areas except as authorized by law”); see also Sierra Club, 899 F.3d at 288-89 (noting that the MLA “creates a separate scheme for regulating pipeline crossings on non-park lands” and that NPS may permit pipeline crossings of National Park System units to the extent allowed by the unit’s enabling act).
 If NPS does reverse its previously stated position that it lacks the authority under the MLA to grant a pipeline ROW to cross the ANST, NPS must, at the bare minimum, provide a robust explanation for its change in course. See Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (providing that while agencies are free to change their existing policies, they must, at a minimum “display awareness that it is changing position” and “show that there are good reasons for the new policy”). Furthermore, an “agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.” Greater Boston Television Corp. v. Fed. Commc’ns Comm’n, 444 F.2d 841, 852 (D.C. Cir. 1970). It is well-established administrative law that if the agency fails to acknowledge a change in its position and adequately explain it, the changed position will be afforded no deference in litigation. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016) (holding that without a reasoned explanation for the change, agency interpretations of statutes that are inconsistent with prior agency positions cannot carry the force of law and accordingly, cannot receive Chevron deference); Christopher v. SmithKline Becham Corp., 567 U.S. 142, 158-59 (2012) (holding that without a reasoned explanation for the change, agency interpretations of their own regulations that are inconsistent with prior interpretations do not have the power to persuade, and accordingly, cannot receive Auer deference).
 With various amendments to NPS’s governing statutes, Congress has “eliminate[d] the distinctions” between national park units, and mandated that NPS “treat all units as it had been treating those parks that had been expressly within the ambit of the Organic Act, the natural and historic units, with resource protection the overarching concern.” See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1453 (9th Cir. 1996). Thus, the provisions of the Organic Act apply with equal force to the ANST as they do to any other national park unit.