Supreme Court to hear arguments on whether pipeline can cross Appalachian Trail

Clay Curtis
February 27, 2020

WASHINGTON-Supreme Court justices seemed skeptical of environmentalist arguments that an appeals court was right to invalidate a U.S. Forest Service permit needed for a planned $8 billion natural gas pipeline.

During oral arguments, the two consolidated appeals that formed the case were heard together: U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association.

The Supreme Court's ruling will also affect the proposed 300-mile (480-km) Mountain Valley Pipeline, which is meant to run from West Virginia to southern Virginia and crosses the trail in the Jefferson National Forest. Some are on state or private land, while others predate the 1968 congressional designation of the Appalachian Trail.

In a brief filed with the Supreme Court, Virginia Attorney General Mark Herring's office said recent analyses indicate the demand for natural gas will remain flat or decrease for the foreseeable future. The Supreme Court is expected to hand down its ruling in May or June of this year.

Atlantic Coast says more than 50 pipelines already cross the trail, some of them on Forest Service land.

The ruling could have big impacts for the route of the 600-mile natural gas project, which begins in West Virginia and crosses through Virginia and North Carolina.

The environmental groups challenging the permit, led by the Cowpasture River Preservation Association, say advocates of the pipeline must get Congress to change the law if they want permission to cross the trail.

The appeals court said the authority to grant pipeline rights-of-way ought to rest instead with the National Park Service, which is part of the U.S. Department of the Interior, because the pipeline's footprint runs through the George Washington National Forest in Virginia and West Virginia and Monongahela National Forest in West Virginia.

After other regulators approved the project, the U.S. Forest Service, which is part of the U.S. Department of Agriculture, made a decision to allow the pipeline to cross underneath a portion of the almost 2,200-mile Appalachian National Scenic Trail that winds through 14 states stretching from Georgia to ME, but the 4th Circuit Court of Appeals sided with environmentalists and overruled the agency. Roberts said that "it doesn't strike me as that unusual a concept" for the trail to be viewed as different from national parks where all development is barred.

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Kellogg said there are now 55 pipelines that run under the Appalachian Trail, 19 of them on federal land with easements granted before the Appalachian Trail was designated as a national scenic trail under the 1968 National Trails System Act.

Under plans for the project, a 0.1-mile segment of the pipeline would cross about 700 feet (213 meters) beneath the Appalachian Trail.

They say the appeals court ruling would create something Congress never intended: a massive barrier separating consumers on the eastern seaboard from inland energy resources.

Justice Sonia Sotomayor told Kellogg he didn't appear to have proven "the parade of horribles that have been put forth".

The 4th Circuit found that the 1920 Mineral Leasing Act allows rights-of-way for pipelines on federal land, except for land in the National Park System.

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.

Even if the court rules in favor of the project developers, the Forest Service would still need to address three other issues cited by the 4th Circuit when it tossed out the permit, including the court's finding that the agency had failed to fully consider alternative routes to avoid national forests.

"It's a ... hard distinction to wrap one's head around", Justice Elena Kagan said.

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