Justices revive permit for pipeline under Appalachian Trail

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)
Published: Jun. 15, 2020 at 5:02 PM EDT
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WASHINGTON (AP) — The Supreme Court sided with energy companies and the Trump administration Monday in reinstating a critical permit for a proposed natural gas pipeline that would cross under the Appalachian Trail.

[You can find the full ruling here]

The justices ruled 7-2 to throw out a lower court ruling that had canceled the permit for the Atlantic Coast Pipeline. It would bring natural gas from West Virginia to growing markets in Virginia and North Carolina. Its supporters say the pipeline would bring economic development, thousands of jobs and reduced energy costs for consumers.

Justice Clarence Thomas wrote for a majority of the court that the “Forest Service had the authority to issue the permit here.” Justices Sonia Sotomayor and Elena Kagan dissented.

Other legal issues remain before construction of the pipeline could begin. The narrow question before the Supreme Court was whether the U.S. Forest Service has the authority to grant rights-of-way through lands crossed by the Appalachian Trail within national forests, as project developers Dominion Energy and Duke Energy and the Trump administration argued.

The pipeline would run in part through the George Washington National Forest, where a 0.1-mile segment of the pipeline would cross about 600 feet (about 183 meters) beneath the Appalachian Trail.

The Sierra Club and other environmental groups had argued that because the 2,200-mile (3,540-kilometer) scenic trail from Georgia to Maine 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 Richmond, Virginia-based 4th U.S. Circuit Court of Appeals agreed with the environmentalists in 2018 and threw out a special-use permit for the 605-mile (974-kilometer) natural gas pipeline. The appeals court relied on a century-old law, the 1920 Mineral Leasing Act, in finding that the Forest Service does not have authority to grant rights-of-way for pipelines on federal land in the National Park System.

The project has had numerous setbacks since plans were first announced in 2014. Legal challenges brought by environmental groups have prompted the dismissal or suspension of eight permits and halted construction for more than a year.

The project is more than three years behind schedule and its original price tag has nearly doubled to $8 billion.

Dominion says the pipeline will bring a critical new gas supply to Virginia and North Carolina to support the shift away from coal and toward intermittent natural resources like solar. The company also says greater availability of natural gas will attract manufacturing businesses.

Environmental groups say the pipeline would scar pristine landscapes, put numerous rivers and streams at risk of increased sedimentation and harm sensitive species.

Dominion Energy responded to the ruling with the following statement:

Today’s decision is an affirmation for the Atlantic Coast Pipeline and communities across our region that are depending on it for jobs, economic growth and clean energy. We look forward to resolving the remaining project permits.

In its decision today, the Supreme Court upheld the longstanding precedent allowing infrastructure crossings of the Appalachian Trail. For decades, more than 50 other pipelines have safely crossed the Trail without disturbing its public use. The Atlantic Coast Pipeline will be no different. To avoid impacts to the Trail, the pipeline will be installed hundreds of feet below the surface and emerge more than a half-mile from each side of the Trail. There will be no construction activity on or near the Trail itself, and the public will be able to continue enjoying the Trail as they always have. We appreciate the many stakeholders who supported our position in this case, including the U.S. Solicitor General, 18 state attorneys general, more than 60 members of Congress and dozens of labor and industry groups.

The Atlantic Coast Pipeline is needed now more than ever for our region’s economy and our path to clean energy. Communities across Hampton Roads, Virginia and eastern North Carolina are experiencing chronic shortages of natural gas. They urgently need new infrastructure to support military bases, manufacturing and home heating. The ACP will also support our region’s transition from coal and the rapid expansion of renewables, both of which are essential to Dominion Energy’s and Duke Energy’s plans to achieve net zero emissions by 2050.

West Virginia Attorney General Patrick Morrisey issued the following statement:

The Attorney General led an 18-state coalition that successfully argued for the court’s ultimate position. Its brief contended that a federal appeals court inaccurately ruled the U.S. Forest Service lacked authority to grant the rights-of-way through forestland beneath federal trails.

“The Supreme Court’s decision will help put back to work thousands of men and women,” Attorney General Morrisey said. “The Supreme Court’s opinion overturns a devastating decision and will go a long way to building a stronger economy and tax base nationwide, especially in north central West Virginia.”

When completed, 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 cost the state at least 1,500 well-paying jobs and lost revenue from income and property taxes. The jobs in question paid laborers between $25 to $40 per hour plus per diem.

The Attorney General argued the 4th U.S. Circuit Court of Appeals’ ruling would have transformed 1,000 miles of the Appalachian Trail into a near-impenetrable barrier to energy development – all to avoid a one-tenth mile crossing deep beneath the surface on a 600-mile pipeline.

The Attorney General contended that, if applied nationwide, the lower court decision would have sealed off more than 11,000 miles of federal trails from development and potentially disrupted the national power grid because of the chilling effect it could have had on infrastructure investment.

West Virginia Senator Shelley Moore Capito's statement:

“Our country has experienced tremendous growth in energy production over the last several years, which presents a huge opportunity for West Virginia’s economy. The Supreme Court decision today is welcome news for American families, jobs, security, and the energy economy. This project will allow for the expanded supplies of natural gas for residential and commercial heating and electricity generation, which will provide affordable energy for residents and businesses while also spurring economic development. Beyond this project though, this landmark decision overturns a disastrous Fourth Circuit decision that has regional and ultimately national implications. The Supreme Court has followed congressional intent in finding that the National Trail System, of which I am a strong advocate, is not to be a dragnet preventing construction of energy, electric, and transportation infrastructure around the country. West Virginia is energy rich, and we should make it easier to use energy resources produced right here at home to meet demand across the country. I worked with the administration and advocated strongly for this project and other natural gas pipelines because I know the economic benefits they afford West Virginia. I’m glad to see the Supreme Court’s decision today and look forward to seeing the positive impact it will have on jobs, security, our energy economy, and economic development.”

(Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.)

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