Pipe Trumps ‘Road:’ Colorado Line Builder Wins Vs. Environmentalists On ‘Roadless Rule’

When is a road a road? Or, is a road a road a road? To be a road, or not to be a road? That was the question.

In a federal court, the pipeline won. The “road” lost.

A federal court of appeals has issued a first ruling on Pres. Bill Clinton’s “Roadless Rule” involving a pipeline project—and the pipeline project has won—says Poe Leggette, attorney with Fulbright & Jaworski LLP. The appellate court has agreed with a district court’s denial of environmentalists’ claim that trucks moving in and out of an area in central Colorado to build a pipeline de facto create a road, thus the rule applies.

The case is Wilderness Workshop v. Bureau of Land Management, No. 08-1165.

“This is the first ruling by any federal court of appeals on the application of the ‘roadless rule’ to pipeline construction,” Leggette says. He reports a summary of the ruling in the firm’s monthly “Fulbright Western Lands & Energy Monthly Update” newsletter.

“The chief issue before the court was whether the project proponent’s use of motorized equipment to lay the pipeline made the pipeline right of way a ‘motor vehicle travelway,’ a term used in the ‘roadless rule’ to define what a ‘road’ is.”

The BLM and U.S. Forest Service were on the pipeline’s side in this case, saying vehicles along the pipeline route made that route a road merely for purposes of construction.

“The court reviewed the agencies’ position to see whether it was ‘plainly inconsistent’ with the text of the ‘roadless rule,’” he says.

The preamble of the ‘roadless rule’ in the federal legislation, though, says roadless areas are not the same as wilderness areas “and would remain open for many activities, including ‘motorized uses.’”

Leggette says, “The court also rejected the argument of the environmental organizations that the environmental-impact statement for the pipeline should have treated all future wells that could be connected to the pipeline as ‘connected actions’ under the National Environmental Policy Act.”

For more on this, Leggette can be reached at pleggette@fulbright.com.