Washington — The US Supreme Court ruled June 15 that the Forest Service had the authority to issue authorization for the Atlantic Coast Pipeline to cross under the Appalachian Trail, in an important advance for the stalled 604-mile, 1.5 Bcf/d gas line and its lead developer, Dominion Energy.
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The 7-2 decision does not remove all the legal barriers to the project, designed to move Appalachian gas to Midwest markets, but clears an important hurdle that put the project route in jeopardy.
Debate in the case 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 System lands.
Environmentalists argued that the government and developers have tried to make an "elusively metaphysical distinction" between the trail and the land it encompasses when arguing the Forest Service retained power to grant pipeline rights-of-way.
Focus on easement
Ruling June 15, the high court found the Forest Service had power to issue the permit because the Department of Interior's decision to assign responsibility over the trail to the NPS functioned as an easement and did not transform the trail into lands within the National Park System. The ruling overturned a finding by the 4th US Circuit Court of Appeals.
ClearView Energy Partners, in a research note, said the ruling "settles the question of whether ACP's route would need to be modified to cross the Appalachian Trail — and the answer is 'no.'" It saw the ruling as "constructive" for both ACP and the 303-mile, 2 Bcf/d Mountain Valley Pipeline.
Rob Rains of Washington Analysis said that "while hurdles for both projects remain, we expect the Forest Service to replenish these previously vacated permits, along with special use permits for access to national forested lands, by late summer."
In addition to the short-term win for ACP, Mark Burghardt, a partner in Dorsey & Whitney, said that in the long term the decision "allows pipeline companies to plan pipeline routes with certainty on how to cross the 780-mile long Appalachian Trail and will allow the development of natural gas fields in less-populated areas to the west."
The decision by a relatively solid 7-2 majority suggests an interpretation can be applied across the country that similar footpaths cannot operate as barriers, thus averting broad adverse finding for the industry, according to Gary Kruse of LawIQ
But both ACP and MVP will still need to get other reissued permits to survive scrutiny by 4th Circuit, which has ruled against the pipelines on multiple other occasions, he noted.
Opinion by Thomas
The high court decision, written by Justice Clarence Thomas, noted the case involved multiple interlocking laws, and concluded the Forest Service right-of-way agreements with NPS for the trail did not convert federal lands into lands within the NPS (US Forest Service v. Cowpasture River Preservation Association, 18-1584). The Interior Department administrators the trail primarily as a footpath, and the underlying land remains within Forest Service jurisdiction, the ruling said. That interpretation is reinforced by the fact that Congress spoke in terms of rights-of-way in the Trails Act, rather than land transfers, Thomas wrote.
The contrary theory put forward by environmental groups would "vastly expand" NPS jurisdiction, the court found.
Justice Sonia Sotomayor issued a dissenting opinion, joined by Justice Elena Kagan, arguing that the laws at issue, "a half century of agency understanding, and common sense confirm that the trail is land, land on which generations of people have walked." And because the trail is land in the park system, she said no federal agency under the MLA can grant a pipeline right-of-way to cross such lands.
Dominion spokeswoman Ann Nallo welcomed the high court decision as "an affirmation for [ACP] and communities across our region that are depending on it for jobs, economic growth and clean energy."
She said ACP looked forward to resolving the remaining project permits.
The Southern Environmental Law Center and the Sierra Club, which have battled ACP on multiple legal fronts, emphasized that problems persist for the project despite the decision.
One important remaining hurdle is the US Army Corps of Engineers' Nationwide Permit 12, a general permit for water crossing that was recently vacated by a federal district court.
Other outstanding permits include permissions to cross national forests and Endangered Species Act authorizations. The 4th Circuit also struck a state air permit for a compressor station in Buckingham, Virginia. Legal challenges to the Federal Energy Regulatory Commission's certificate authorization for ACP are also expected to proceed in the DC Circuit Court of Appeals.