Atlantic Coast Pipeline gets day in high court as justices test narrowed approach to impasse

Washington — The US Supreme Court heard oral argument Monday in a key case affecting the future of the Atlantic Coast Pipeline, with conservative justices seeming more open to statutory interpretations that would allow the current route.

The case entails US Forest Service and the pipeline developers' efforts to overturn a 4th US Circuit Court of Appeals ruling they contend could threaten development of oil and natural gas pipeline infrastructure in the Eastern US.

In question is whether the Forest Service lacked authority under the Mineral Leasing Act to allow the 604-mile, 1.5 Bcf/d gas pipeline project to cross under the Appalachian National Scenic Trail (US Forest Service v. Cowpasture River Association, 18-1584). Debate has hinged on whether the National Park Service or Forest Service had authority over the decision. The difference is important because the Mineral Leasing Act does not allow rights-of-way for pipelines across federal lands that are National Park lands.

POLICY ANALYSTS' VIEW

ClearView Energy Partners in a research note said it believed a majority of the court seemed to lean toward interpreting the statutes at issue favorably for the pipeline, i.e., "in a fashion that would allow the Forest Service to rely on its jurisdiction under the Mineral Leasing Act to site ACP 600 feet below the Appalachian Trail." Beyond the conservatives, ClearView suggested Justice Stephen Breyer appeared willing to consider such situations "on a case-by-case basis."

Gary Kruse of LawIQ also believed after oral argument that the court would reverse the 4th Circuit holding, by at least a 6-3 vote, he said. It was unclear, however, whether the court would do so on narrow grounds, rather than a broader ruling that would be more helpful to the pipeline sector, he said.

While the legal battle has centered on authorities for land containing the Appalachian Trail, some justices appeared to toy with a narrower finding — that considers land deep below the Appalachian Trail to be outside National Park Service oversight.

"Instead of having to draw this distinction between the trail and the land, why can't we just say that the trail is on the surface and something that happens 600 feet below the surface is not the trail?" asked Justice Samuel Alito. Breyer joined in that line of questioning.

'METAPHYSICAL DISTINCTION'

Lawyers for environmentalists have argued that the government and developers have tried to make an "elusively metaphysical distinction" between the Appalachian Trail and the land it encompasses when arguing the Forest Service retained the power to grant pipeline rights-of-way.

Taking up that skepticism, Judge Elena Kagan said it was a "difficult distinction to wrap one's head around," making the briefs "strange to read." She added that "nobody makes this distinction in real life." And Justice Ruth Bader Ginsburg, also appearing skeptical, pointed to language in one of the petitioner's briefs acknowledging the trail is in the National Park System.

CHIEF JUSTICE

Chief Justice John Roberts, however, said the debate over what authorities applied to the trail or the land under it may not be "as metaphysical" as claimed.

Referring to easements, he said, "It doesn't strike me as that unusual a concept that there are property rights that are distinct from rights in the land," Roberts said.

Several conservative justices asked about the practical implications of the case for energy development. For instance Roberts asked whether the 4th Circuit ruling would erect an impermeable barrier to pipeline development between production areas to demand centers to the east.

Arguing for environmental groups, attorney Michael Kellogg called that notion "absolutely incorrect," and later was encouraged by Justice Sonia Sotomayor to further explain why the "parade of horribles," as she put it, was unlikely.

To that Kellogg replied that in 50 years, there has not been a single new pipeline right-of-way crossing under the Appalachian Trail on federal lands, while a number have crossed state, local and private lands.