Atlantic Coast Pipeline permit before the Supreme Court

Case Examines Legal Authority for Pipeline’s Appalachian Trail Crossing

On Monday, February 24, the Supreme Court of the United States will hear arguments in United States Forest Service v. Cowpasture River Preservation Association. The narrow legal question at the heart of this case is whether the Forest Service has the legal authority to allow the Atlantic Coast Pipeline to cross the iconic Appalachian Trail—a unit of the national park system—on federal land.

In the case, SELC represents five Virginia conservation groups: Cowpasture River Preservation Association, Alliance for the Shenandoah Valley, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, and Virginia Wilderness Committee. Also in the case, Sierra Club represents itself and Wild Virginia. Lawyers from SELC and the Sierra Club won this case in the Fourth Circuit Court of Appeals in 2018 and are co-counsel with the law firm Kellogg Hansen Todd Figel & Frederick at the Supreme Court.

No oil or gas pipeline has ever been built across the Appalachian Trail on a new right-of-way over protected federal land—the Atlantic Coast Pipeline would be the first. Existing pipelines do, in fact, cross the Trail, either on state land, on private land, or on federal land under a pre-existing right, but none of these were authorized by the Forest Service to cross the trail on national forest lands, which is Atlantic Coast Pipeline’s proposal.

SELC and its clients challenged the Forest Service’s unusual permit for this pipeline in the Fourth Circuit Court of Appeals and won on several grounds. The pipeline and the government then appealed the Appalachian Trail portion of the decision to the Supreme Court. Because the question under review is narrow and limited to federal lands, a decision affirming the lower court ruling will not affect existing pipelines, as both the pipeline and the government contend. Furthermore, it would not convert the Appalachian Trail into an impenetrable barrier to pipeline development on the East Coast. It would, however, likely require a reroute of the Atlantic Coast Pipeline from its current crossing location and, potentially, a reroute of the Mountain Valley Pipeline, sending the developers of these projects back to the drawing board.

The Atlantic Coast Pipeline is a 600-mile gas pipeline proposed from West Virginia, through Virginia and on to North Carolina. Dominion Energy and Duke Energy are its primary backers, pursuing this project in no small part because of the 15% yearly guaranteed profit  their shareholders will receive upon its completion. This risky and unnecessary pipeline will not only harm the mountains, forests, and waterways in its path, it will also raise costs for utility ratepayers in Virginia and North Carolina, unfairly burden vulnerable communities, and lock a new generation into fossil fuel consumption.

In the five years since this project was proposed, its justification has continued to erode as the need for more gas to fire power plants has dwindled. And it has encountered serious problems with its proposed route. To date, the pipeline has lost 8 permits required for construction, and less than 6% of its 600-mile route is complete.

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