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Court to weigh fight over pipeline across Appalachian Trail

Photo of the 'March to the Mansion' of protesters against the Atlantic Coast Pipeline in 2016 : Chesapeake Climate Action Network
Photo of the 'March to the Mansion' of protesters against the Atlantic Coast Pipeline in 2016 : Chesapeake Climate Action Network(WHSV)
Published: Oct. 4, 2019 at 11:30 AM EDT
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The Supreme Court will consider reinstating a permit that was tossed out by a lower court that would allow construction of a natural gas pipeline through two national forests, including parts of the Appalachian Trail.

The justices said Friday they will hear appeals filed by energy companies that want to build the 605-mile Atlantic Coast Pipeline and the Trump administration, which initially approved the project.

The federal appeals court in Richmond, Virginia, ruled in December that the U.S. Forest Service has no power to authorize the crossing of the popular trail and had "abdicated its responsibility to preserve national forest resources" when it approved the pipeline crossing the George Washington and Monongahela National Forests, as well as a right-of-way across the Appalachian Trial.

The pipeline, proposed in 2014 by Dominion Energy, Duke Energy and other energy companies, would originate in West Virginia and run through parts of Virginia and North Carolina.

Under plans for the project, a 0.1-mile segment of the pipeline would cross more than 600 feet beneath the Appalachian Trail.

The project has been mired in legal challenges by environmental and conservation groups. Construction has been halted since December.

The Southern Environmental Law Center, which successfully challenged the Forest Service permit before the 4th U.S. Circuit Court of Appeals, said the Supreme Court's decision to hear the appeal by the pipeline's developers "doesn't mean Dominion wins this case."

"The court's decision to hear this case doesn't affect any of the multiple other problems that the Atlantic Coast Pipeline has," said Greg Buppert, a senior attorney with the center.

"I think the most important one is the fact that (the pipeline) is not necessary. Dominion and Duke are claiming we need it to run power plants, and that's not supported by the evidence we now know about the demand for power in Virginia and North Carolina."

Pipeline spokesman Aaron Ruby disputed that, saying communities in eastern North Carolina and the Hampton Roads region in Virginia are experiencing natural gas shortages.

"The region urgently needs new infrastructure to support the U.S. military, manufacturing, home heating and cleaner electricity as we move away from coal," Ruby said in a statement.

Buppert said the Forest Service permit to be decided by the U.S. Supreme Court is "just one of seven permits this project doesn't have that are required for construction."

"The final route of this project is uncertain, and it's not clear when or if Dominion will have any clarity on where this project will go," he said.

Ruby, however, said the high court's decision to hear the case "is a very encouraging sign and provides a clear path forward to resolve this important issue."

The U.S. solicitor general and 16 state attorneys general argued in briefs filed with the high court that the Forest Service has the authority to approve the pipeline's proposed Appalachian Trail crossing.

In its ruling in December, a three-judge panel of the 4th Circuit found that the Forest Service did not have the statutory authority to grant the permit.

In a sternly worded decision, the panel found that the Forest Service had "serious environmental concerns" about the project that were "suddenly, and mysteriously, assuaged in time to meet a private pipeline company's deadlines."

The ruling also quoted "The Lorax" by Dr. Seuss, saying the Forest Service is trusted to "speak for the trees, for the trees have no tongues."

Ruby said more than 50 other pipelines cross underneath the trail "without disturbing its public use."

 

FOR IMMEDIATE RELEASE

Contact: Curtis Johnson
Phone: (304) 590-5026

 
Release Date: Oct. 4, 2019

Attorney General Morrisey Coalition Takes Part in Convincing Supreme Court to Reconsider Shutdown of Job-Producing Pipeline


Big Win for 16-State Coalition

CHARLESTON — West Virginia Attorney General Patrick Morrisey applauded the U.S. Supreme Court’s decision to review a federal appeals court ruling that halted construction of the Atlantic Coast Pipeline.
 
The Attorney General led a 16-state coalition in July that urged the Supreme Court to review, and ultimately overturn, the lower court ruling, a decision the coalition argues could unnecessarily block pipeline construction and impede economic growth nationwide.
 
“West Virginia strongly supports the Supreme Court’s decision as it signals the court recognizes the profound importance of this case as a matter of federal law and economic impact to Appalachia and the nation as a whole,” Attorney General Morrisey said. “We remain hopeful this decision is a precursor to ultimate victory and an end to the unnecessary delays that have negatively impacted the livelihoods of our working class families and the services they receive.”
 
The coalition’s brief, filed in late July, argued a federal appeals court was inaccurate in ruling the U.S. Forest Service lacked authority to grant the Atlantic Coast Pipeline rights-of-way through forestland beneath federal trailways.
 
The Atlantic Coast Pipeline will transport natural gas through Harrison, Lewis, Upshur, Randolph and Pocahontas counties en route to Virginia and North Carolina.
 
The halting of pipeline construction costs West Virginia jobs and lost revenue from income and property taxes.
 
The attorneys general argue, if left intact, the ruling from the 4th U.S. Circuit Court of Appeals would transform 1,000 miles of the Appalachian Trail into a near-impenetrable barrier to energy development – all due to a one-tenth of mile crossing on a 600-mile pipeline.
 
If applied nationwide, the coalition argues the appeals court decision would seal off more than 11,000 miles of federal trails from development and potentially disrupt the national power grid because of the chilling effect it could have on infrastructure investment.
 
The West Virginia-led brief received support from Alabama, Alaska, Georgia, Idaho, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, and Wyoming.
 
Read a copy of the coalition’s brief at http://bit.ly/2LSOFC7.
 
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The following is a statement by Atlantic Coast Pipeline spokesperson Aaron Ruby in response to the U.S. Supreme Court’s decision to grant certiorari in the Atlantic Coast Pipeline’s appeal of the Appalachian Trail case:

 

The Supreme Court’s acceptance of our petition is a very encouraging sign and provides a clear path forward to resolve this important issue. The law and the facts are on our side, and we’re supported by a broad coalition of stakeholders. The U.S. Solicitor General, 16 state Attorneys General and more than a dozen industry and labor organizations all agree that the U.S. Forest Service has the authority to approve our Appalachian Trail crossing.

 

More than 50 other pipelines cross underneath the Appalachian Trail without disturbing its public use. The public interest requires a clear process for the issuance and renewal of permits for such pipelines, and other essential infrastructure. The Atlantic Coast Pipeline should be no different. In fact, the pipeline will be installed more than 600 feet below the surface and more than a half-mile from each side of the Trail to avoid any impacts.

 

We look forward to making our case before the Supreme Court early next year and expect a final ruling by next June. We are confident in our arguments, and those of the Solicitor General, and are hopeful the Supreme Court will overturn the Fourth Circuit’s decision and uphold the longstanding precedent allowing pipeline crossings of the Appalachian Trail. We remain confident we can resolve the ACP’s other permitting issues to enable resumption of partial construction in a timely manner. A favorable resolution of the Appalachian Trail case will allow us to resume full construction by next summer and complete the project by late 2021.

 

The Atlantic Coast Pipeline is more important now than ever. The economic vitality, environmental health and energy security of our region depend on it. Communities across Hampton Roads, Virginia and eastern North Carolina are experiencing chronic shortages of natural gas. The region urgently needs new infrastructure to support the U.S. military, manufacturing, home heating and cleaner electricity as we move away from coal. We remain committed to this project and are confident it will be completed.

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