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Alternative paths possible for projects and new pipes, groups say

Warning of 2,200-mile barrier is 'hyperbole,' they argue

Washington — Environmental groups weighed in against US Supreme Court action to free up the 600-mile, 1.5 Bcf/d Atlantic Coast Pipeline, countering assertions that an appeals court ruling left unchecked could have widespread implications for eastern US energy projects.

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The natural gas project, intended to move Appalachian gas to Mid-Atlantic markets, has faced a series of legal setbacks, including a 4th US Circuit Court of Appeals decision that struck federal authorizations allowing the pipeline to cross the Appalachian National Scenic Trail and national forests.

Dominion Energy and the US Department of Justice in June asked the Supreme Court take up the case, challenging the part of the ruling that found the US Forest Service lacked authority under the Mineral Leasing Act to grant the right of way to cross the trail because the land is under exclusive authority of the National Park Service.

'DRAMATIC CONSEQUENCES'

Dominion had argued that, if left to stand, the decision would have "dramatic consequences," converting the Appalachian Trail into a 2,200-mile barrier to critical infrastructure (US Forest Service, et al., v. Cowpasture River Preservation Association, 18-1584, 18-1587).

Disputing that sense of urgency for the Supreme Court to hear the case, environmental groups in a brief to the Supreme Court Wednesday noted that there are three remaining bases for the 4th Circuit judgment that threaten to make a Supreme Court decision irrelevant to the pipeline. For instance, the 4th Circuit required the Forest Service on remand to "study routes that avoid national forests and required a reroute if those alternatives can accommodate the pipeline," the groups said.

If there is such an alternative, that would make any Supreme Court ruling "purely advisory," they said. "Atlantic will require right of way across the Appalachian Trail on the national forest only if the Forest Service properly approves the same route following a remand, and only if the Forest Service resolves all remaining issues in favor of ACP," they wrote.

ALTERNATIVE PATHS

Further, they asserted that ACP made a hyperbolic argument that the 4th Circuit decision threatens to choke off the flow of natural gas to the East Coast. Numerous sites remain available for new pipeline construction across state and private lands, or co-located within existing easements, they said. Existing pipelines are also unaffected by the ruling, they wrote, because none were authorized by the Forest Service to cross the Appalachian Trail under the MLA.

"In the 51 years since Congress designated the Appalachian Trail, the Forest Service had never granted a new right-of-way to an oil or gas pipeline to cross the Trail in a national forest," they said.

The decision had at most one consequence, that Atlantic must reroute the pipeline to avoid crossing the trail on federal land, they contended.

They also made the case that the decision does not conflict with other circuits. Finally, they argued that Atlantic has publicly assured investors that its current route is viable without Supreme Court review. The only other pipeline affected, Mountain Valley Pipeline, also believes it has an administrative path forward, the environmental groups said.

ACP in its petition for writ of certiorari June 25 argued that the National Trails System Act expressly preserves authority of other federal agencies over lands that a national trail traverses. It said the decision misconstrued both statutes on which the court relied.

Other legal obstacles to the ACP project include a 4th Circuit ruling vacating US Fish and Wildlife Service authorizations related to endangered species protections. Also in play is the need to reinstate US Army Corps water crossing authorizations.

-- Maya Weber, maya.weber@spglobal.com

-- Edited by Bill Montgomery, newsdesk@spglobal.com