Supreme Court Appears Favorable to Pipeline Under AT

The US Supreme Court heard arguments Monday in a dispute over a proposed natural gas pipeline that would tunnel under the Appalachian Trail in Virginia, with justices seeming to favor allowing the pipeline to be built.

The proposed Atlantic Coast Pipeline would carry natural gas from West Virginia to North Carolina, and would pass 600 feet under the AT in George Washington National Forest.

At the heart of the dispute is who controls the land the pipeline would cross: the US Forest Service or the National Park Service. The court is being asked to decide whether the land is under forest service control and is open to energy development, or whether it must be preserved by the park service for recreational use.

Conservative justices, who hold a 5-4 majority on the court, expressed reservations about a lower federal court’s rejection of the pipeline. Liberal justices also appeared to be leaning in favor of the pipeline.

Chief Justice John Roberts worried that the lower court’s ruling would “erect an impermeable barrier” to any pipeline across the AT, according to the Associated Press.

Michael Kellogg, a lawyer representing environmental groups trying to stop the pipeline, said that assumption was incorrect. He said 55 pipelines currently run under the AT, 19 of them on federal land with easements granted before the Appalachian Trail was designated as a national scenic trail under the 1968 National Trails System Act. The remaining pipelines are on state and private land, he said.

Some of the justices seemed intrigued by the idea that the trail is aboveground, but the pipe would be 600 feet underground and would make the argument over who controls the trail and the land moot.

The US Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, in 2018 rejected a special-use permit for the more than 600-mile pipeline, saying the forest service did not have the authority to grant a right-of-way for the pipeline to cross beneath the AT.

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,’ ” the court said in its widely quoted ruling that borrowed from Dr. Seuss’ The Lorax.

The court said that the 1920 Mineral Leasing Act does not allow rights-of-way for pipelines on national park land. Because the AT is considered a unit of the national park system, the forest service doesn’t have authority, the court said.

Dominion Energy and Duke Energy—the pipeline developers—said the forest service has jurisdiction over land in George Washington National Forest, where a 0.1-mile segment of the pipeline would cross the AT. Although the park service is responsible for administration of the trail, the energy company lawyers said, the land crossed by the AT in national forests remains under the jurisdiction of the forest service.

The Sierra Club and other environmental groups opposed to the pipeline rejected that argument, saying that because the 2,200-mile trail from Georgia to Maine is considered a unit of the national park system, no federal agency can grant a right-of-way for the pipeline. They say only Congress can approve such a crossing.

The Appalachian Trail Conservancy, which oversees management of the trail, has not taken a stand on the pipeline.

“That’s not to say that there aren’t direct impacts from the Atlantic Coast Pipeline to the Appalachian Trail. There are,” Andrew Downs, a senior regional director for the ATC, told NPR. “Our analysis led us to the conclusion that the scope and range of those impacts did not rise to the level requiring opposition.”

One reason, he said, is the pipeline crosses private land on either side of the AT, before tunneling under the trail.

Also, Downs told NPR, although the pipeline’s path would be cleared of trees and visible from the trail, houses and roads are also visible from that spot. And the Blue Ridge Parkway is about 100 yards from the trail, with the noise of cars apparent.

A Supreme Court ruling in favor of the energy companies is not likely to settle the dispute.

The forest service still needs to address the Fourth Circuit’s finding that it failed to fully consider alternative routes, along with other issues.

Since 2014, when the project was announced, eight permits have been dismissed or suspended because of legal challenges by environmental groups.

The pipeline’s cost has risen to $8 billion, and work is three years behind schedule.

Feature image provided by Emma Rosenfield.

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