If the U.S. Supreme Court were to decide against the developer of the 1.5-Bcf/d Atlantic Coast Pipeline LLC natural gas transportation project and the federal government on a crossing of the Appalachian National Scenic Trail, it could complicate permitting for all pipeline projects that would intersect the 2,200-mile trail between Maine and Georgia, gas industry observers said.
Consulting firm ClearView Energy Partners LLC said in a research note that such a decision, still many months away, could put a new constraint on pipeline developers in the eastern U.S.
"Project sponsors would be on notice that green field crossings of the trail are more problematic than previously assumed," the firm wrote. "Aligning a project's route on an existing [right of way] through federal land or a crossing over privately owned land may pose fewer legal risks if opposition to the project looks likely."
Like ClearView, attorney Carolyn Elefant thought that Atlantic Coast Pipeline might have options to work around an adverse ruling by the Supreme Court. Elefant, the founder a law firm that represents residents, landowners and other parties in the gas project permitting process at the federal and state levels, said in an email that the pipeline company could propose a project reroute or seek approval from Congress to cross a national park.
The 600-mile pipeline project, which would move gas from West Virginia to Virginia and North Carolina, has hit a series of regulatory and legal setbacks after its approval by the Federal Energy Regulatory Commission. The project is a joint venture of Dominion Energy Inc., Duke Energy Corp. and Southern Co. Gas.
A trade organization that advocates for the pipeline industry, the Interstate Natural Gas Association of America, said it expected the high court to agree with Atlantic Coast Pipeline and the U.S. Forest Service that the agency has the authority to approve crossings of the Appalachian Trail along with crossings of national forest. The court is expected to reach a decision in summer 2020.
"While we're still months away from a decision, we're encouraged by the court's decision to review this case," Interstate Natural Gas Association of America spokesperson Patrick Creighton said in an email. "It's important to keep in mind that there are many other pipelines that cross beneath the Appalachian Trail."
On Oct. 4, the Supreme Court granted requests for review filed by Atlantic Coast Pipeline and the Forest Service, which is represented by the U.S. Department of Justice. The company and the agency asked the court to overturn a decision by the U.S. Appeals Court for the 4th Circuit that had canceled Forest Service authorizations to cross the Appalachian Trail and sections of national forest.
Atlantic Coast and the Forest Service told the high court that the 4th Circuit made a mistake in December 2018 when it ruled that the Forest Service did not have authority under the Mineral Leasing Act to grant the right of way across the trail. Among the 4th Circuit's reasons, the court had found that the National Trail System Act made the National Park Service the federal agency in charge.
Conservation group Cowpasture River Preservation Association and allied parties had tried to stop the challenge to the 4th Circuit decision, asking the Supreme Court to dismiss the petitions for review. The group said the lower court decision was correct. The court had relied in part on the Mineral Leasing Act, which the group said clearly "prohibits pipeline crossings over federal lands in the National Park System," and the group said the system includes the Appalachian Trail. (U.S. Court of Appeals for the 4th Circuit dockets 18-1584 and 18-1587)
Dominion has said Atlantic Coast Pipeline would take steps to avoid impacts on the trail. These would include conducting the work to insert the pipeline underground more than a half-mile from each side of the trail and passing the pipeline below the surface of the trail at a depth of 600 feet.
The Atlantic Coast case was the second pipeline case recently brought before the high court.
On Oct. 7, the Supreme Court dismissed an attempt by landowners to fight a lower court ruling that allowed EQM Midstream Partners LP's Mountain Valley Pipeline LLC to quickly exercise its power of eminent domain to take land for a pipeline project in the same region as the Atlantic Coast project. If the court had accepted the case, a decision for the landowners could have changed the pipeline industry's use of this authority, but the rejection of the petition was expected and favorable for the developer.
"The property [for the Mountain Valley project] was taken by eminent domain almost two years ago and construction is underway," Elefant said. "The denial of [review] simply means that the pipeline construction will continue."