A majority of the US Supreme Court yesterday seemed inclined to find that the federal government had authority to grant a right of way for a proposed $7.5bn natural gas pipeline to cross under the popular Appalachian Trail in rural Virginia.
The nine justices heard a one-hour argument in appeals brought by Dominion Energy Inc and President Donald Trump’s administration of a lower court ruling that halted construction of the 965km Atlantic Coast Pipeline, which would run from West Virginia to North Carolina.
Environmental groups including the Sierra Club and Southern Environmental Law Center had sued to stop the pipeline after the US Forest Service gave the green light for the project through protected National Park Service land.
Dominion Energy leads a consortium of companies in the project that also includes Duke Energy Corp Questions asked by several justices suggested the court will overturn the Richmond-based 4th US Circuit Court of Appeals, which found in its 2018 decision that the Forest Service lacked the authority to grant a right of way for the pipeline. A ruling is due by the end of June.
Four of the court’s conservative justices asked questions indicating sympathy for Dominion’s arguments, as did liberal Justice Stephen Breyer.
Conservative Chief Justice John Roberts questioned whether a ruling in favor of environmental groups would create an “impermeable barrier” that would bar such projects along the length of the trail.
Roberts said that “it doesn’t strike me as that unusual a concept” for the trail to be viewed as different to national parks where all development is barred.
Breyer and conservative Justice Brett Kavanaugh both questioned whether Congress would have placed restrictions on pipelines crossing under the trail without explicitly saying so.
Conservatives Samuel Alito and Neil Gorsuch also appeared inclined to back Dominion.
The proposed pipeline would be 600 feet below a section of the Appalachian Trail in the George Washington National Forest.
The 3,500km trail stretches from Maine to Georgia.
After a lengthy application process involving multiple federal agencies, the Forest Service granted the consortium a right of way under the trail in 2018.
The appeals court ruled that the Forest Service did not have the power to grant a right of way under a federal law called the Mineral Leasing Act.
The court cited a section of the law that says federal agencies can grant rights of way for pipelines on “federal lands” but specifically excludes land that is part of the federal National Park system like the Appalachian Trail.
The Trump administration disputed that interpretation, with Solicitor General Noel Francisco saying in court filings that the National Park Service has only limited authority to maintain the trail and that the Forest Service has the authority to approve rights of way across it.
Lawyers for the pipeline consortium noted that more than 50 pipelines already cross under the trail.
The lower court ruling, if left in place, would impose a “2,200-mile barrier separating resource-rich areas to its west from consumers to its east,” the consortium said in court filings.
The companies have the support of 18 mostly Republican-led states, including West Virginia.
The state of Virginia, which is led by Democrats, supports the environmental groups.
The environmental groups have said the project could go ahead under a different route that does not cross the trail on federal land.
State and private landowners have the authority to grant rights of way under the trail, the groups added.
Even if the pipeline wins the case, construction would not resume immediately as other legal issues raised by environmental groups are still being reviewed by the federal government.
The Supreme Court’s ruling will also affect the proposed 480km Mountain Valley Pipeline, which is intended to run from West Virginia to southern Virginia and crosses the trail in the Jefferson National Forest.
The pipeline is almost finished but construction was halted as a result of the ruling in the Atlantic Coast pipeline case before the crossing under the trail was completed.
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