Supreme Court hears battle over Atlantic Coast Pipeline

Photo of the 'March to the Mansion' of protesters against the Atlantic Coast Pipeline in 2016 :...
Photo of the 'March to the Mansion' of protesters against the Atlantic Coast Pipeline in 2016 : Chesapeake Climate Action Network(WHSV)
Published: Feb. 24, 2020 at 11:45 AM EST
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The Supreme Court on Monday appeared ready to remove an obstacle to construction of the Atlantic Coast Pipeline, with a majority of justices expressing skepticism about a lower court ruling that tossed out a key permit needed for the natural gas pipeline to cross under the Appalachian Trial.

Justices on the court grilled a lawyer for environmental groups who sued and won a 2018 ruling from the Richmond-based 4th U.S. Circuit Court of Appeal throwing out a special-use permit for the 605-mile (974-kilometer) natural gas pipeline.

The 4th Circuit found the U.S. Forest Service did not have the authority to grant a right-of-way to allow the pipeline to cross beneath the Appalachian Trail in the George Washington National Forest.

But conservative justices, who hold a 5-4 majority on the Supreme Court, expressed reservations about the ruling, with Chief Justice John Roberts at one point saying the lower court's finding would “erect an impermeable barrier” to any pipeline from areas where natural gas is located to areas where it is needed.

"Absolutely incorrect,” attorney Michael Kellogg, representing the environmental groups, responded.

Kellogg said there are currently 35 pipelines that run under the Appalachian Trail, 19 of them on federal land with easements granted before the Appalachian Trail was designated as a national scenic trail under the 1968 National Trails System Act. The remaining pipelines are on state and private land, he said.

But Justice Brett Kavanaugh told Kellogg that the environmental groups' position has “significant consequences to it, enormous consequences.”

The 4th Circuit found that the 1920 Mineral Leasing Act allows rights-of-way for pipelines on federal land, except for land in the National Park System. The court found that the trail is considered a unit of the National Park System, so the Forest Service doesn't have the authority to approve a right-of-way.

Lawyers for project developers — Dominion Energy and Duke Energy — backed by the Trump administration, say the Forest Service has jurisdiction over land in the George Washington National Forest, where a 0.1-mile segment of the pipeline would cross about 600 feet beneath the Appalachian Trail. The pipeline would bring natural gas from West Virginia to North Carolina and Virginia.

The Sierra Club and other environmental groups say that because the 2,200-mile (3,540-kilometer) scenic trail is considered a unit of the National Park System, no federal agency can grant a right-of-way for the pipeline. They say only Congress can approve such a crossing.

The narrow question before the Supreme Court is whether the Forest Service has the authority to grant rights-of-way through lands crossed by the Appalachian Trail within national forests.

Conservative justices expressed concern that concluding that no federal agency can grant easements for pipeline projects on lands crossed by the trail within national forests could erect a roadblock to energy infrastructure projects.

Dominion and the federal government say the 1968 National Trails System Act, which designated the Appalachian Trail as a national scenic trial, did not transfer lands crossed by the trail to the National Park Service. They argue that although the Park Service is charged with overall administration of the trail, the actual lands crossed by the trail within national forests remain under the jurisdiction of the Forest Service.

The court's liberal justices appeared skeptical of the argument made by Dominion and the government that the trail cannot be considered “land” in the National Park System because it is only a right-of-way that crosses federal land under the jurisdiction of the Forest Service.

“It's a ... difficult distinction to wrap one's head around,” Justice Elena Kagan said.

“When you walk on the trail, when you bike on the trail, when you backpack on the trail, you're backpacking and biking and walking on land aren't you?” Kagan asked Assistant Solicitor General Anthony Yang.

But the conservative justices and Justice Stephen Breyer, considered to be a member of the court's liberal wing, repeatedly noted that the pipeline will be buried more than 600 feet below the Appalachian Trail so would not actually go across the trail.

Even if the court rules in favor of the project developers, the Forest Service would still need to address three other issues cited by the 4th Circuit when it tossed out the permit, including the court’s finding that the agency had failed to fully consider alternative routes to avoid national forests.

____________

Feb. 21

The U.S. Supreme Court will hear oral arguments from lawyers challenging

the Atlantic Coast Pipeline Monday.

No matter what the Supreme Court decides, construction will likely remain stalled on the 600-mile pipeline in 2020, unless developers chart a new course.

A lower court

; the highest court will only consider one: whether the National Park Service or National Forest Service should be the arm of government that approves or blocks a pipeline crossing deep below the Appalachian Trail.

West Virginia's Republican Attorney General Patrick Morrisey

, arguing the project promises jobs and a stronger economic future. He expects Monday will go well for his side.

"We're very cautiously optimistic, but we feel very good," he said.

Lawyers directly involved with arguing for the pipeline did not make time to speak with us for this story.

Morrisey said navigating around protected trails on federal land will cost unnecessary time and money.

"We have to protect the environment, but you can't just set up this barrier."

The three-and-a-half-foot wide pipeline is designed to pump natural gas from West Virginia's Marcellus Shale to power companies in North Carolina and Virginia, Duke Energy and Dominion Energy.

Lawyers arguing against it, saying developers cut corners on their permit paperwork as did the regulators who initially approved it.

"These federal agencies just tossed out the rule book and did what the pipeline company asked them to do," said D.J. Gerken, a lawyer with the Southern Environmental Law Center.

Gerken said the pipeline carries problems for natural resources and communities in all three states. He said promises of lower power bills don't add up.

"This is not about supplying electricity families need," he said, "this is a boondoggle for two big utilities, who are going to get a guaranteed return and take it out of rate-payers pockets."

The Supreme Court will begin listening to arguments at 10 a.m. Monday, and make its decision by the end of June at the latest.

But the fights over this pipeline - and its potential impacts on people, the economy, and environment -- won't end with this case.

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