Dive Brief:
- The U.S. Supreme Court on Friday agreed to hear an appeal of a lower court decision rejecting a key permit for the $7.5 billion Atlantic Coast Pipeline.
- The Fourth U.S. Circuit Court of Appeals ruled last December that the U.S. Forest Service was not authorized to greenlight the project to run under the Appalachian Trail, which is protected National Park Service land. The decision, which the Trump administration has disputed, stopped construction on the pipeline intended to bring natural gas from West Virginia to power plants in North Carolina and could have implications for other pipeline developments trying to cross the trail.
- Pipeline opponents note this permit is one of several that developers need to proceed with the project. Briefings are expected to wrap up in December with early oral arguments to take place early next year, "possibly February or March," according to D.J. Gerken, program director with the Southern Environmental Law Center.
Dive Insight:
The Supreme Court's decision to take on the appeal surprised several of the environmental groups that have litigated against the permits because of the limited applications of the case. Some opponents of the project credited this to the influence of the developers of the 600-mile pipeline, Dominion Energy, Duke Energy, Piedmont Natural Gas and Southern Company.
"These companies are very well connected," Gerken told Utility Dive.
A wide range of supporters sent in briefs to appeal the Fourth Circuit decision, including the U.S. Solicitor General, 16 state attorneys general and several industry and labor organizations supporting the Forest Service's authority to approve the pipeline's crossing of the Appalachian Trail.
"Attorneys general and pipeline companies from around the country that have no stake in this issue have weighed in," Gerken said.
The case deals with a rare intersection of the National Trails Act and the Mineral Leasing Act, Gerken said. "It's a very discrete issue on a not commonly-known law."
During the first quarterly earnings call of the year, Dominion CEO Thomas Farrell told analysts a judicial path to the Supreme Court existed for the appeal. He also said the company is working on a legislative path to address the invalidated permits.
Dominion hopes for the Supreme Court to "uphold the longstanding precedent allowing pipeline crossings of the Appalachian Trail," as "more than 50 other pipelines cross underneath" the area "without disturbing its public use," according to Atlantic Coast Pipeline spokesperson Aaron Ruby.
"We're going to have the opportunity to prove that it's not true," Gerken said. "Without a citation... [Dominion and Duke] made similarly hyperbolic and unsupported arguments that the Fourth Circuit's decision about the National Forest somehow will block all energy infrastructure on the East Coast."
Other stalled and over budget pipeline projects could be affected by the Fourth Circuit decision, such as the 300-mile Mountain Valley Pipeline, Gerken said. While the project's proposed path also crosses a small segment of national forest, including the Appalachian trail, the developers own a piece of private land where that occurs.
Several other permits for the Atlantic Coast Pipeline were previously approved and placed under administrative stay, according to Dominion.
| Permits to be reissued | Federal agencies |
|---|---|
| Biological opinion | U.S. Fish & Wildlife Service |
| Blue Ridge Parkway crossing | National Park Service |
| Stream and river crossings | U.S. Army Corps of Engineers |
| National forest crossings | U.S. Forest Service |
At the end of 2018, the Fourth Circuit had also vacated a permit issued by the U.S. Fish and Wildlife Service, prompting the developers to work on additional analysis required by the court.
"We began immediately working with the Fish and Wildlife Service to correct the issues identified by the court," a Duke spokesperson told Utility Dive. "Once the Biological Opinion and Incidental Take Statement are reinstated, which should occur in the fourth quarter or early next year, we will seek the necessary approval from the Federal Energy Regulatory Commission to resume construction."
Timing for the case is uncertain, but the Supreme Court would issue a final ruling by next June.
The delays on the project, which was targeted to begin construction in the third quarter of this year, have already tacked on $1 billion to the final cost, estimated between $6 billion and $6.5 billion, Dominion said in February.
"A favorable resolution of the Appalachian Trail case will allow us to resume full construction by next summer and complete the project by late 2021," Ruby said.
