In a 7–2 ruling, the U.S. Supreme Court decided on Monday that the U.S. Forest Service has the authority to allow the $8 billion Atlantic Coast Pipeline to cross under the historic Appalachian Trail in Nelson County, Virginia.
Proposed by Richmond, Virginia-based Dominion Energy Inc., the 42-inch-diameter pipeline will channel some 1.5 billion cubic feet of fracked gas per day, transporting it over 604 miles from the Marcellus Shale basin in West Virginia to Virginia and North Carolina.
The decision signifies a victory for power and energy supplier Dominion Energy, Duke Energy Corp., and the Trump Administration, which supports the energy providers’ pro-development approach. The entities had appealed the ruling of a lower court that stopped construction of the project after the Forest Service granted permission for the pipeline to go through George Washington National Forest and under the historic and scenic Appalachian Trail, which runs almost 2,200 miles from Maine to Georgia.
Energy Secretary Dan Brouillette said in a twitter post that the judgment will contribute to expanding the United States’ energy infrastructure.
President @realDonaldTrump has long called for expanding energy
infrastructure across the nation. Today’s ruling by the U.S.
Supreme Court brings us one step closer to making that a reality. pic.twitter.com/sb5zqMqjh8
— Dan Brouillette (@SecBrouillette) June 15, 2020
The Supreme Court opinion (pdf) was drafted by Justice Clarence Thomas, with only two liberal justices—Sonia Sotomayor and Elena Kagan—dissenting.
“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,” Dominion said in a statement. “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.”
After a lengthy application process, a 2018 decision by the U.S. Forest Service granted Dominion a right of way to tunnel under the trail. Dominion stated that “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.”
However, a consortium of environmental groups—including the Cowpasture River Preservation Association, the Sierra Club, and the Virginia Wilderness Committee—sued to stop the pipeline. The Sierra Club had referred to the Atlantic Coast Pipeline project as “Risky and costly … and unnecessary,” as the environmental group questioned future requirements for natural gas.
A 2018 ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va. found that the Forest Service did not have the necessary authority to grant an easement for the pipeline at the point where it crosses the Appalachian Trail—because the trail itself is overseen by the National Park Service.
In its ruling on Monday, the Supreme Court agreed with the Trump administration in finding that the Forest Service did in fact have the necessary authority to approve easements across the trail.
Dominion Energy and the Trump administration maintained that even though the National Park Service administers the Appalachian Trail, the land at the pipeline crossing point on which the trail sits is part of a national forest—meaning that it is within the jurisdiction of the Forest Service.
In the ruling (pdf), Justice Clarence Thomas wrote that “If a rancher granted a neighbor an easement across his land for a horse trail, no one would think that the rancher had conveyed ownership over that land. Nor would anyone think that the rancher had ceded his own right to use his land in other ways, including by running a water line underneath the trail that connects to his house.”
The same principle applied here, he said. The National Park Service’s authority over the Appalachian trail “did not transform the land over which the trail passes into land within the National Park System,” according to the Supreme Court opinion.
Further Barriers Ahead
Director of the Sierra Club’s Beyond Dirty Fuels Initiative, Kelly Martin, said that while she was disappointed by the Supreme Court decision, the Atlantic Coast Pipeline still lacks a number of permits. The pipeline was “likely to never be built,” she said.
“Nothing in today’s ruling changes the fact that the fracked gas Atlantic Coast Pipeline is a dirty, dangerous threat to our health, climate, and communities, and nothing about the ruling changes our intention to fight it,” Martin told Reuters.
In a statement from the Sierra Club, Dick Brooks of the Cowpasture River Preservation Association said that “It’s been six years since this pipeline was proposed, we didn’t need it then and we certainly don’t need it now. Today’s decision doesn’t change the fact that Dominion chose a risky route through protected federal lands, steep mountains, and vulnerable communities.”
In a 2019 article, the Sierra Club said that “The serial setbacks have cost Dominion, which is building the pipeline with Duke Energy and Southern Company, money and its reputation. Each week that goes by without felling a tree or digging a trench costs up to $20 million. The project is now estimated to cost almost $8 billion—more than 50 percent higher than originally thought—with full operation pushed back to 2021.”
However, Dominion Energy said the project has the support of a broad spectrum of stakeholders, “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,” said the company. “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.”
Matthew Vadum and Reuters contributed to this report.