The U.S. Supreme Court overturned a federal appeals court ruling that held the U.S. Forest Service (USFS) lacked the authority to allow a permit for the Atlantic Coast Pipeline (ACP) to cross beneath a portion of the Appalachian Trail in Virginia.
The $8 billion ACP would carry natural gas 600 miles from West Virginia to North Carolina to provide fuel for electric power along the east coast.
Where Authority Lies
The ACP would cross several federal lands, including national forests. The USFS granted federal permits along the route. Environmental groups sued to block the pipeline, saying the USFS lacked the authority to allow the ACP to cross under a small portion of the Appalachian Trail in Virginia. Under the 1968 Trails Act, the Department of the Interior designated the Appalachian Trail, which stretches from Maine to Georgia, as under the management of the National Park Service.
In 2019, the 4th Circuit Court of Appeals, in Richmond, agreed with plaintiff environmental groups, ruling the Appalachian Trail fell under the authority of the NPS, which the court found was barred by federal law from granting rights of way for energy development.
Led by Dominion Energy, the consortium of companies building ACP appealed the lower court’s decision to the U.S. Supreme Court, with the Trump administration joining, on both substantive and legal grounds.
Industry groups argued the pipeline would neither harm the environment nor disturb hikers, as it would be constructed 600 feet below the trail, going underground a half-mile before crossing beneath the trail and exiting a half-mile beyond the trail.
The Trump administration and the consortium also argued the 1920 Mineral Leasing Act (MLA) granted USFS, in this instance, the authority to approve rights-of-way for oil and gas production and transport.
USFS Authorization Affirmed
Joined by Chief Justice John Roberts and Justices Samuel Alito, Stephen Breyer, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh, Justice Clarence Thomas authored a majority opinion reversing the 4th Circuit Court’s ruling, holding the Trails Act did not alter the USFS’s authority under the MLA to permit pipeline construction under the trail.
“We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment” of the lower court, Thomas wrote.
The pipeline will have not harm the environment, said ACP spokesperson Ann Nallo in a statement issued after the Supreme Court’s decision.
“For decades, more than 50 other pipelines have safely crossed the trail without disturbing its public use,” said Nallo. “The Atlantic Coast Pipeline will be no different.”
Having resolved this dispute, the consortium building ACP will now proceed to obtain the final permits for completion, saying it expects the pipeline to be operating by 2022.
Impact on Another Pipeline
It is likely the Supreme Court’s decision will reach beyond ACP’s particular case to allow the completion of a second pipeline.
The nearly completed 300-mile Mountain Valley Pipeline (MVP), running from West Virginia to southern Virginia, crosses the Appalachian Trail in the Jefferson National Forest. Work on it was halted after the 4th Circuit Court’s ACP ruling. With that decision overturned and the same authority at issue in the MVP case, the pipeline should now be able to proceed to completion.
Clarifying Authority
The new decision appropriately places permitting authority for crossing the Appalachian Trail where it belongs with the USFS, providing certainty to oil and gas developers, says Mark Burghardt, a partner at the international law firm Dorsey & Whitney, in a statement.
“This decision is very good for natural gas producers, pipeline companies, and natural gas consumers,” said Burghardt. “In the short term, it will allow development of the Atlantic Coast Pipeline [and] long term, it allows pipeline companies to plan routes with certainty on how to cross the 780-mile Appalachian Trail and will allow the development of natural gas fields in less-populated areas to the west.
“The environmental groups challenging the pipeline were not worried about damage to the trail, since this pipeline is located far underground. [They] are simply against fossil fuels,” Burghardt’s statement said. “This is the right decision. It is a common-sense, practical decision that adheres to the text and purpose of the Trails Act [which] simply does not express the intent to transfer control of the property at issue from the Forest Service to the National Park Service.”
Sterling Burnett, Ph.D. (hsburnett@heartland.org) is the managing editor of Environment & Climate News.