By Whitney Pipkin,
Bay Journal News Service
The U.S. Supreme Court last week weighed whether a federal agency has the authority to grant or deny permission for a major natural gas pipeline to be built under the Appalachian Trail, hearing oral arguments from each side. The court’s decision, expected by June, will decide the fate of the long-contested, $8 billion Atlantic Coast Pipeline, which would wind across the southwest corner of the Chesapeake Bay watershed in Virginia.
Dominion Energy, the project’s backer, petitioned the court to consider the case after the Fourth Circuit Court of Appeals in late 2018 revoked a permit from the U.S. Forest Service. The permit would have allowed construction to cross the Appalachian Trail and George Washington National Forest. It is one of seven federal permits related to the project that have been overturned by the courts, resulting in a construction stoppage since late 2018.
The legal conundrum to be decided by the court is whether the U.S. Forest Service has the authority to grant the pipeline a permit to tunnel under the Appalachian Trail. The trail crosses through national forests, as well as other public and private lands, but is managed by the National Park Service.
The case is not about which agency owns the trail but rather about which agency has jurisdiction over the federally owned land that the trail travels.
The Forest Service and Park Service have different charters when it comes to allowing major infrastructure projects, such as pipelines, across federally owned lands. The Park Service seeks to “preserve unimpaired” the lands it is charged with managing, while the Forest Service grants rights of way and other energy development opportunities on its land.
Arguing on behalf of the U.S. Forest Service, Andrew Yang, assistant to the U.S. Attorney General, aimed to distinguish between the trail that traverses the surface of the land and the land under which a project would be built.
“It’s a difficult distinction to wrap one’s head around,” said Justice Elena Kagan. “You’re saying the trail is distinct from the land that is the trail. No one makes this distinction in real life.”
Justice Ruth Bader Ginsburg began with a similar line of questioning about the lawyers’ efforts to draw distinctions between the agencies’ authorities. But most of the judges seemed more concerned about the broader implications of a decision to uphold the Fourth Circuit’s decision to revoke the Forest Service permit.
Eventually, Chief Justice John Roberts Jr. asked whether such a decision would essentially create “an impermeable barrier” for pipelines and projects like them trying to cross the Appalachian Trail to the East Coast.
The Mountain Valley Pipeline, another natural gas pipeline being built across southern Virginia (outside the Chesapeake watershed) by a different developer is about 90% complete — but also needs a permit to cross the Appalachian Trail. Construction was halted as a result of the Fourth Circuit’s decision.
The Atlantic Coast Pipeline project has begun tree clearing in Virginia but has not yet begun construction in the state.
In a preview of the case for the SCOTUS blog, attorney Noah Sachs noted that siding with the pipeline’s opponents could prevent the agencies from granting a right-of-way for pipelines under any portion of the Appalachian Trail that runs through federal land.
“Because more than 80% of the trail is on federal land [the remainder is on state and private land], this case has major implications for where pipelines and other energy infrastructure can cross from the Midwest to population centers on the East Coast,” Sachs wrote.
Dominion pointed out in a statement released after oral arguments to the existence of more than 50 pipeline projects under the trail already as evidence that the work would not disturb public use of the trail.
“We’re avoiding any impacts to the trail by installing the pipeline more than 700 feet below the surface,” the statement said, adding feet to the 600-foot-below number that attorneys used during their arguments. Through horizontal drilling, the company said construction would only impact land more than a half-mile from each side of the trail. “People hiking by the crossing will not see, hear or even know the pipeline is there.”
Greg Buppert, a senior attorney with the Southern Environmental Law Center, said after the arguments that the depth at which the pipeline would cross under the trail is still “unresolved” and that the pipeline could end up being built much closer to the surface.
Either way, analysts and Dominion’s attorneys have said that, unless the Supreme Court allows the Forest Service to reissue the permit, the 605-mile-long natural gas pipeline is unlikely to go forward. “If it cannot cross [at more than] 600 feet below the trail, then the whole enterprise is done,” Yang said during his argument.
In a statement, Dominion officials said they were “hopeful” the Supreme Court would decide in the pipeline’s favor and that the company could resume construction as early as this summer.
Environmental groups were less forthcoming with predictions after the Supreme Court’s complex legal discussion. “It’s so hard to read what the justices are thinking, and I make it a policy not to try to predict,” said David Sligh, conservation director of Wild Virginia, after observing the arguments. Still, he said in a statement, the pipeline “poses serious environmental and safety risks in its attempt to cut across Appalachia. Simply put, they could not have chosen a worse place” to construct it.
If the Supreme Court reverses the lower court’s decision, allowing the Forest Service to reissue a permit, the pipeline project would still face a handful of unresolved permitting issues, many of them put on hold while this case made its way through the courts. Lawsuits challenging the permit from the Federal Energy Regulatory Commission, which center on whether demand for the project is justified, are still in court.