In its Feb. 24 hearing of oral arguments in a key pipeline siting dispute, the U.S. Supreme Court signaled that it could reverse a lower court's suspension of a permit for the $7.8-billion Atlantic Coast natural gas pipeline, which could restart its stalled construction, based on questions and comments from conservative justices.
The court agreed to take up two consolidated cases to decide whether the U.S. Forest Service has the authority to grant a special purpose right-of-way for the $7.8-billion, 600-mile pipeline to cross beneath the Appalachian Trail on national forest land. The two cases involve decisions by the federal appeals court in Richmond, Va.
Pipeline developers Dominion Energy and Duke Energy argued that the decisions in its case, which supported environmental groups that sued to stop the project, had the effect of erecting a 2,200-mile barrier—the length of the trail—separating natural gas resources in the interior of the country from consumers on the East Coast.
About 1,000 miles of the Appalachian Trail are within national forest land. The developers also said the decisions would threaten construction of dozens of pipelines anticipated to generate 17,240 jobs.
Not Seen or Heard?
More than 50 other pipelines have crossed underneath the Appalachian Trail for many years without disturbing its public use,” said project spokesperson Ann Nallo. “The Atlantic Coast Pipeline will be no different. In fact, we’re avoiding any impacts to the trail by installing the pipeline more than 700 feet below the surface and more than a half-mile from each side of the trail. People hiking by the crossing will not see, hear or even know the pipeline is there.”
U.S. courts and agencies have suspended seven critical permits for the line, resulting in a construction halt since last December, the Southern Environmental Law Center said.
A Quanta Services and Primoris Services Inc. joint venture was named as project contractor in 2016.
It claims that "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." While existing pipelines do cross the Trail, either on state land, on private land, or on federal land under a pre-existing right, "none of these were authorized by the Forest Service to cross the trail on national forest lands, which is Atlantic Coast Pipeline’s proposal," the law center said
The 300-mile, $4.6 billion Mountain Valley Pipeline was not party to the lawsuits, but its developers in a supporting court filing said the project was stopped in December at 90% complete as workers prepared to drill a borehole under the Appalachian Trail.
Chief Justice John Roberts questioned whether the appellate ruling "really does erect a impermeable barrier to any pipeline from the area where the natural gas resources are located to the area east of it where there's more of a need for them?"
Jurisdictional Dispute
But Justice Elena Kagan, part of its more liberal bloc, disputed the pipeline developers' and U.S. government's contention that the land underneath the trail is within the national forest, and under Forest Service authority.
Several court observers speculated that based on comments from other conservative-leaning justices, the Supreme Court would overturn the appellate court stay of the pipeline permit by a 6-3 vote, but noted the two pipelines still face other federal permitting hurdles.
"These are seen as surmountable, though timing and potential for other suits remain risks," said Andrew Wittmann, construction sector analyst. for Baird Equity Research, who adds that the Atlantic Coast line also faces risk of political change in upcoming elections "given only limited construction completion with November coming fast."
The court's ruling is expected by June.
