Supreme Court Upholds Atlantic Coast Pipeline and Forest Service Under-Trail Authority

We’ve discussed the Atlantic Coast Pipeline before here and possibly elsewhere. Here’s a Hill story from today.

Here’s an excerpt:

The Supreme Court on Monday upheld a permit for a controversial $8 billion gas pipeline that would tunnel below the famed Appalachian Trail.

The 7-2 opinion handed a defeat to environmental groups who challenged the Atlantic Coast Pipeline, (ACP) which would carry natural gas some 600 miles from West Virginia to North Carolina.

The decision to uphold the permit resolves a complex bureaucratic dispute involving multiple U.S. environmental agencies and overlapping legal authorities.

The justices held that the U.S. Forest Service (USFS) had been duly authorized to greenlight the project, rejecting the challengers’ claim that power over the affected land lay elsewhere.

The dispute stemmed from the Department of the Interior’s decision to make the National Park Service (NPS) responsible for the Appalachian Trail. Prior to the court’s Monday decision, the question of whether this move also transferred authority of lands underneath the trail had been an open one.

But Justice Clarence Thomas, writing for the majority, said the administrative arrangement did not remove the USFS’s power to permit construction under the trail.

“Accordingly, the Forest Service had the authority to issue the permit here,” wrote Thomas, whose majority opinion cut across ideological lines.

Thomas was joined by fellow conservatives Chief Justice John Roberts, Justices Samuel AlitoNeil Gorsuch and Brett Kavanaugh, as well as liberal justices Stephen Breyer and Ruth Bader Ginsburg. Two of the court’s liberals, Sonia Sotomayor and Elena Kagan, dissented.

“For decades, more than 50 other pipelines have safely crossed the trail without disturbing its public use. The Atlantic Coast Pipeline will be no different,” ACP spokeswoman Ann Nallo said by email, reiterating the company’s plans to be in operation by 2022.

“To avoid impacts to the trail, the pipeline will be installed hundreds of feet below the surface and emerge more than a half-mile from each side of the trail. There will be no construction activity on or near the trail itself, and the public will be able to continue enjoying the trail as they always have.”

Here’s a quote of interest. The plaintiffs just don’t want the project, and will move on to the next permit. Though I’m not sure what environmental law has language about how much something is needed and by whom.

While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power,” DJ Gerken, with the Southern Environmental Law Center, which sued over the pipeline, said in a statement.

9 thoughts on “Supreme Court Upholds Atlantic Coast Pipeline and Forest Service Under-Trail Authority”

  1. What little I know about the FERC process in considering proposals such as this pipeline, the proponent must declare a public need for the proposed action (in this case, transporting natural gas). Mr. Gerken of SELC indicates that evidence exists that disputes that documented need.

  2. Thanks, Tony! When I worked on pipeline litigation, it was in state which I think now means that FERC was not involved.

    Apparently the proponent must file a “a certificate of public convenience and necessity
    pursuant to section 7 of the Natural Gas Act (NGA)”? You’d think that would be among the first federal approvals they would have to get, and then move on to troubling the land management agencies (and the Supreme Court) once that made it through litigation.

    • Yes, I believe you are correct about the certificate of public convenience and necessity. However, what intrigues me is SELC’s assertion that the rationale behind the certificate is legally flawed.

      This pipeline project has many hurdles to jump over to reach a successful decision and to move forward with construction. The Supreme Court decision is just the first of these many hurdles.

  3. The FS and BLM made all kinds of exceptions to their planning rules to help FERC ok the Pacific connector pipeline going through old growth habitat and critical riparian zones to the export terminal in Coos Bay. The feeling was the “bosses” said “get it done”.

  4. This case is about more than the pipeline issues. The more telling points are made in the split estate and rights-of-way issues.

    The in pari materia approach taken through interpretation of multiple statutes together is also something that will play across much more than pipeline issues.


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