SCOTUS reverses lower court ruling on Atlantic Coast Pipeline

West Virginia

UPDATE (6/15/20 4:08 p.m.):

WASHINGTON – Sen. Joe Manchin, D–W.Va., a ranking member of the Senate Energy and Natural Resources Committee, has also released a statement on the Supreme Court’s decision.

“Today the Supreme Court overruled a lower court decision that halted the progress of the Atlantic Coast Pipeline. This project would create jobs, invigorate our energy markets, and provide thousands of American homes and businesses with the energy they need. This pipeline would open up the East Coast with the expansion of the natural gas industry to the benefit of many states along the coast, including my home state of West Virginia which has an abundance of natural gas right under our feet. The Atlantic Coast Pipeline project has gone to extreme lengths to ensure the safety and integrity of the Appalachian Trail and the surrounding area and I am confident in their ability to maintain our great outdoor spaces while expanding our ability to increase energy production across the nation. The Supreme Court’s decision today is an important step forward, but additional regulatory hurdles remain. I look forward to seeing this pipeline completed so we can begin to reap the benefits for our energy industry and our nation as a whole.” 

Sen. Joe Manchin

UPDATE (6/15/20 2:35 p.m.)

Sen. Shelley Moore Capito, R–W.Va., a member of the Senate Environment and Public Works Committee, has also released a statement on the Supreme Court’s ruling.

“Our country has experienced tremendous growth in energy production over the last several years, which presents a huge opportunity for West Virginia’s economy. The Supreme Court decision today is welcome news for American families, jobs, security, and the energy economy. This project will allow for the expanded supplies of natural gas for residential and commercial heating and electricity generation, which will provide affordable energy for residents and businesses while also spurring economic development. Beyond this project though, this landmark decision overturns a disastrous Fourth Circuit decision that has regional and ultimately national implications. The Supreme Court has followed congressional intent in finding that the National Trail System, of which I am a strong advocate, is not to be a dragnet preventing construction of energy, electric, and transportation infrastructure around the country. West Virginia is energy rich, and we should make it easier to use energy resources produced right here at home to meet demand across the country. I worked with the administration and advocated strongly for this project and other natural gas pipelines because I know the economic benefits they afford West Virginia. I’m glad to see the Supreme Court’s decision today and look forward to seeing the positive impact it will have on jobs, security, our energy economy, and economic development.”

Sen. Shelley Moore Capito

ORIGINAL STORY (6/15/20 2:08 p.m.):

The Supreme Court of the United States has reversed a lower court’s ruling related to construction of the Atlantic Coast Pipeline.

The Supreme Court granted certiorari in consolidated cases, which focused on whether the United States Forest Service has authority under the Mineral Leasing Act to grant rights-of-way through lands within national forests traversed by the Appalachian Trail.

The Supreme Court in its majority opinion held that the Mineral Leasing Act does grant the Forest
Service that authority and reversed the judgment of the Court of Appeals for the Fourth Circuit.

According to court documents, in 2015, Atlantic Coast Pipeline, LLC filed an application with the Federal Energy Regulatory Commission to build and operate an approximately 604-mile natural gas pipeline extending from West Virginia to North Carolina. The pipeline’s proposed route traverses 16 miles of land within the George Washington National Forest. The Appalachian National Scenic Trail also crosses parts of the George Washington National Forest.

To build the pipeline, ACP needed to obtain special use permits from the United States Forest Service for the portions of the pipeline that would pass through lands under the Forest Service’s jurisdiction. In 2018, the Forest Service issued these permits and granted a right-of-way that would allow ACP to place a 0.1-mile segment of pipe approximately 600 feet below the Appalachian Trail in the George Washington National Forest.

Several respondents, including Cowpasture River Preservation Association; Highlanders for Responsible Development; Shenandoah Valley Battlefields Foundation; Shenandoah Valley Network; Sierra Club; Virginia Wilderness Committee; and Wild Virginia filed a petition for review in the Fourth Circuit. Court documents said they contended that the issuance of the special use permit for the right-of-way under the trail, as well as numerous other aspects of the Forest Service’s regulatory process, violated the Mineral Leasing Act, the National Environmental Policy Act of 1969, the National Forest Management Act of 1976 and the Administrative Procedure Act.

Under that review, The Fourth Circuit vacated the Forest Service’s special use permit after holding that the Leasing Act did not empower the Forest Service to grant the pipeline right-of-way beneath the trail. The court concluded that the Appalachian Trail had become part of the National Park System because, though originally charged with the trail’s administration, the Secretary of the Interior delegated that duty to the National Park Service. In the Fourth Circuit’s view, this delegation made the trail part of the National Park System because the trail was now an “area of land…administered by the Secretary [of the Interior] acting through the Director [of the National Park Service].”

Because it concluded the trail was now within the National Park System, the court held that the
trail was beyond the authority of “the Secretary of the Interior or appropriate agency head” to grant pipeline rights-of-way under the Leasing Act, court documents indicate.

In its review of The Fourth Circuit’s case, the Supreme Court determined that a decision by the Department of the Interior to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the trail passes into land within the National Park System.

According to court documents, the majority also determined that a right-of-way in this case functions in the same way it would between private parties, even though the federal government owns all of the land involved. To this end, the case syllabus states “A right-of-way between two agencies grants only an easement across the land, not jurisdiction over the land itself. Read in light of basic property law principles, then, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands crossed by the Trail.”

In addressing the respondents’ argument, the Supreme Court noted:

Respondents’ theory—that the National Park Service administers the Trail, and therefore the lands that the Trail crosses—depends on presuming, with no clear congressional command, a vast expansion of the Park Service’s jurisdiction and a significant curtailment of the Forest Service’s express authority to grant pipeline rights-of-way on “lands owned by the United States.” 30 U. S. C. §185(b). It also has striking implications for federalism and private property rights, especially given that Congress has used express language in other statutes when it has intended to transfer lands between agencies.

United States Forest Service et al. v. Cowpasture River Preservation Association et al.

Attorney General Patrick Morrisey and Dominion Energy each provided statements on the Supreme Court’s decision.

According to a press release, Morrisey argued the Fourth Circuit’s ruling would have transformed 1,000 miles of the Appalachian Trail into a near-impenetrable barrier to energy development in order to avoid a one-tenth mile crossing beneath the surface on the pipeline.

Further, Morrisey said that, if applied nationwide, the lower court’s decision would have sealed off more than 11,000 miles of federal trails from development and potentially disrupted the national power grid.

“The Supreme Court’s decision will help put back to work thousands of men and women. The Supreme Court’s opinion overturns a devastating decision and will go a long way to building a stronger economy and tax base nationwide, especially in north central West Virginia.”

Attorney General Patrick Morrisey

In December 2019, Morrisey, along with attorneys general from several other states, submitted an amicus brief to the Supreme Court urging it to reverse the lower court’s ruling.

Today’s decision is an affirmation for the Atlantic Coast Pipeline and communities across our region that are depending on it for jobs, economic growth and clean energy. We look forward to resolving the remaining project permits.

In its decision today, the Supreme Court upheld the longstanding precedent allowing infrastructure crossings of the Appalachian Trail. 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. 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. We appreciate the many stakeholders who supported our position in this case, including the U.S. Solicitor General, 18 state attorneys general, more than 60 members of Congress and dozens of labor and industry groups.

The Atlantic Coast Pipeline is needed now more than ever for our region’s economy and our path to clean energy. Communities across Hampton Roads, Virginia and eastern North Carolina are experiencing chronic shortages of natural gas. They urgently need new infrastructure to support military bases, manufacturing and home heating. The ACP will also support our region’s transition from coal and the rapid expansion of renewables, both of which are essential to Dominion Energy’s and Duke Energy’s plans to achieve net zero emissions by 2050.

Ann Nallo
Dominion Energy

Gov. Jim Justice also shared his thoughts on Monday’s announcement.

The Atlantic Coast Pipeline would transport natural gas through Harrison, Lewis, Upshur, Randolph and Pocahontas counties en route to Virginia and North Carolina.

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