Supreme Court hears case made for Atlantic Coast Pipeline permit

The Atlantic Coast Pipeline, a 600-mile project led by Dominion Energy Inc., got another day in court Feb. 24 as the Supreme Court held oral argument over which federal agency, if any, can allow the natural gas pipeline to be built under the Appalachian Trail.

The case hinges on a narrow point of law: how to interpret the National Trails System Act. Specifically, does the US Forest Service retain authority to grant rights of way to pipelines that will go under the Appalachian Trail within a national forest, or did the Trails Act take that authority away?

Attendees at the oral argument said justices in the conservative camp on the Supreme Court seemed inclined to accept the Forest Service’s position that it retains authority to grant permits for pipelines to pass under national trails.

Chief Justice John Roberts and Justice Brett Kavanaugh were described as notably skeptical of the arguments of a coalition of five conservation groups, and Justice Stephen Breyer, usually classed as one of the court’s liberals, also gave onlookers an impression of skepticism.

A possible advantage for the pipeline’s backers is the fact that the Trails Act was amended in 1983 to say, “Nothing contained in [the act] shall be deemed to transfer among Federal agencies any management responsibilities established under any other law for federally administered lands.”

If interpreted as the government argues, that means Forest Service retains its authority over pipeline routes under the Mineral Leasing Act.

The government argues that the National Trails System has responsibility for the trail itself, a relatively narrowly surface feature, not for wide swathes of national forest and the ground beneath. The National Trails System is administered by an office of the National Park Service.

Permit approved and vacated

The Forest Service, assuming it retained pipeline permitting authority, in 2017 approved the project route through a part of the George Washington National Forest in the Blue Ridge Mountains of Virginia. A December 2018 decision by the US Court of Appeals for the Fourth Circuit vacated that “special use permit.”

The pipeline would pass about 700 ft below the Appalachian Trail. Its route would be drilled horizontally through a ridge from private acreage on one side of the ridge to private acreage on the other side.

The attorneys for the pipeline’s backers argue that the Fourth Circuit decision, if allowed to stand, would turn the Appalachian Trail into a 2,200-mile-long barrier to pipelines from Maine to Georgia. That point, in turn, is debated because part of the trail crosses over state, local government and private lands, any of which could, in theory, provide optional routes for a pipeline.

Attorneys arguing before the court included Paul Clement of law firm Kirkland & Ellis LLP, representing Atlantic Coast Pipeline, and Michael Kellogg of law firm Kellogg, Hansen, Todd, Figel & Frederick PLLC, representing the five conservation groups.

The case is US Forest Service v. Cowpasture River Preservation Association, consolidated with a parallel case by Atlantic Coast Pipeline LLC. A decision is expected before the end of the Supreme Court’s current term in late June.

Billions of dollars at stake

The Atlantic Coast Pipeline would be able to carry up to 1.5 bcfd of natural gas from West Virginia to utilities and their customers in Virginia and North Carolina. It would provide fuel for electric power plants as well as gas sold directly to residential and business customers.

Dominion has a large ownership stake in Atlantic Coast Pipeline LLC and would build and operate the line, which could cost $7.8 billion to construct, according to the utility. Other owners are Southern Co. and Duke Energy Corp., including Duke subsidiary Piedmont Natural Gas.

The project will not be free to proceed if it wins in the Supreme Court. An attorney for the Southern Environmental Law Center, which has been representing the conservation groups, said outside the Supreme Court that this case involves only one of eight permits that have been blocked by courts or pulled back in response to criticisms.