Supreme Court Signals Resistance to Blocking Atlantic Coast Pipeline -- Update
February 24 2020 - 04:31PM
Dow Jones News
By Brent Kendall
WASHINGTON -- The Supreme Court on Monday suggested it was
unlikely to block a planned natural-gas pipeline from running under
a section of a major East Coast hiking trail.
At issue is the planned Atlantic Coast Pipeline, which would
transport natural gas from West Virginia across 600 miles to sites
in Virginia and North Carolina. The project, a partnership in which
Dominion Energy Inc. and Duke Energy Corp. are major investors, is
designed to reach East Coast markets and respond to demand for
cleaner-burning fuel. The price tag for the pipeline, which already
has faced delays, is about $8 billion.
Environmentalists say the path of the pipeline threatens
ecologically important national forests, raising the prospect of
soil erosion and damage to wildlife habitat. It will impact an
especially picturesque section of the Appalachian National Scenic
Trail in Virginia, they say. The trail runs more than 2,000 miles
from Maine to Georgia.
Multiple environmental groups argued the Trump administration
gave their concerns short shrift and sued to challenge the U.S.
regulatory process for approving the pipeline, winning a notable
decision in 2018 that faulted several facets of the approval.
In the broadest part of that decision, the Richmond, Va.-based
Fourth U.S. Circuit Court of Appeals said the U.S. Forest Service
didn't have the authority to grant a special-use permit that
allowed the pipeline developers to construct a segment underneath a
section of the Appalachian Trail located near Reed's Gap, Va., and
the Wintergreen Resort.
During Supreme Court oral arguments Monday, conservative
justices, who hold a majority, questioned that ruling, as did one
of the court's more liberal members, Justice Stephen Breyer.
Chief Justice John Roberts said the environmentalists' arguments
could erect an "impermeable barrier" that would prevent any
pipeline from crossing the trail and reaching East Coast
customers.
"Your position has significant consequences to it, enormous
consequences, " Justice Brett Kavanaugh told Michael Kellogg, the
environmentalists' lawyer.
Mr. Kellogg said any such barrier applied only to federal land,
and that dozens of pipelines already run under the trail, via
state, local and private land.
Justice Breyer suggested the pipeline may be less of a problem
because it was running hundreds of feet below ground, entered and
exited on private land, and didn't actually run across the surface
of trail.
The key legal issue before the court involved the intersection
of several federal agencies and governing statutes, as well as
metaphysical discussion of what the word "land" actually means.
The Forest Service can grant a right of pipeline access on
national forest land, but it can't do so on lands in the National
Park System. The Appalachian Trail is administered by the National
Park Service, and environmentalists say this means the Forest
Service can't grant the permit.
The pipeline developers and the Trump administration say the
trail isn't land, but instead a footpath that traverses land. This
distinction means the pipeline permit is valid, they say.
"Except that nobody makes this distinction in real life," said
Justice Elena Kagan, who voiced sympathy for the environmentalists
in the case.
"When you walk on the trail, when you bike on the trail, when
you backpack on the trail, you're backpacking and biking and
walking on land, aren't you?" she asked.
Lawyer Paul Clement, arguing for the pipeline, said the Park
Service only has administrative control of the trail, not the
actual land itself. To make the point, he cited the national
historical trail in Alabama between Selma and Montgomery where
civil-rights activists marched in 1965, which the Park Service also
administers.
If the environmentalists' position were correct, then parts of
downtown Selma and Montgomery are national park lands, which would
come as a surprise to people there, Mr. Clement said.
The Selma analogy appeared to resonate with several members of
the court, including Justices Breyer and Neil Gorsuch.
Justice Samuel Alito said there might be other good
environmental arguments against the pipeline, but he said those
issues were in other parts of the case that aren't currently before
the court.
A decision is expected by the end of June.
Write to Brent Kendall at brent.kendall@wsj.com
(END) Dow Jones Newswires
February 24, 2020 16:16 ET (21:16 GMT)
Copyright (c) 2020 Dow Jones & Company, Inc.
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