Pipeline and energy industries got a boost from the U.S. Supreme Court Monday with a decision easing restrictions that halted construction of the Atlantic Coast Pipeline from West Virginia to North Carolina.
In a 7-2 decision in United States Forest Service v. Cowpasture River Preservation Association, the high court said the Forest Service had the authority to issue a special use permit for the pipeline, which would cross 600 feet under the Appalachian Trail. In so doing, the court overturned a ruling by the U.S. Court of Appeals for the Fourth Circuit finding that the Forest Service was not empowered to grant the right-of-way because the trail was part of the National Park System.
Both at oral argument and in the decision, the outcome depended on a somewhat metaphysical debate about whether an agency that governs a trail also has power over what happens on and under the land the trail covers.
Justice Clarence Thomas, writing for the majority, asserted that federal law “gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service.” He added, “Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.”
Justice Sonia Sotomayor wrote a dissent, joined by Justice Elena Kagan. “Today’s outcome is inconsistent with the language of three statutes, longstanding agency practice, and common sense,” Sotomayor stated.
While the case focused on the Forest Service and the Appalachian Trail, pipeline companies and government agencies nationwide were awaiting the ruling, fearful that if the court upheld the Fourth Circuit, pipeline development would get bogged down for years.
A friend of the court brief filed in the case by 18 states, including Texas, expressed fear that the lower court decision’s approach “may expand beyond the Fourth Circuit … [and] threatens a chilling effect on investment and disruption to the national power grid.”
Baker Botts partner Evan Young, the firm’s appellate practice chair in Austin and a former clerk for the late Justice Antonin Scalia, said, “The legal background for this case is even more meandering than the Appalachian Trail itself. It involves a host of intersecting and interlocking statutes and statutory terms. But despite that complicated framework, the court’s decision itself is straightforward. The decision will be important because it will eliminate what otherwise would have been fatal challenges to pipeline access in many other contexts.”
Ann Nallo, a spokeswoman for Atlantic Coast Pipeline, which is a project of Duke Energy and Dominion Energy, said in a statement, “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. The Atlantic Coast Pipeline will be no different.” The price tag of the project has been estimated at $8 billion.
Justin Hodge of Marrs Ellis & Hodge in Houston said the impact of the Supreme Court ruling in Texas is “somewhat limited, because Texas is a pipeline-friendly state” that does not usually have to deal with federal use permits. But Hodge, who represents landowners litigating in eminent domain and pipeline cases, said that by easing restrictions the Supreme Court decision can only benefit the still-growing pipeline industry in Texas and elsewhere.
Environmental groups commented on the Supreme Court’s decision. “While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline,” said DJ Gerken, program director of the Southern Environmental Law Center. “This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case.”
Dick Brooks of the Cowpasture River Preservation Association said, “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.”