Supreme Court clears way for Atlantic Coast Pipeline to cross Appalachian Trail

The Atlantic Coast Pipeline can cross under the Appalachian
Trail, the United States Supreme Court ruled on Monday. By a 7 to 2
margin, the court reversed
a lower court’s decision
and upheld a permit granted by the
U.S. Forest Service that the project’s developers could tunnel
under a section of the iconic wilderness in Virginia.

The court took the case after Dominion Energy, one of the
largest utilities in the South, appealed a Fourth Circuit Court of
Appeals ruling last year that said the U.S. Forest Service violated
federal law when it approved the pipeline to cross the Appalachian
Trail. The issue, the lower court ruled: It was the National Park
Service’s call to approve that request. (Dominion, based in
Richmond, Virginia, is the lead developer on the Atlantic Coast
Pipeline, or ACP, project; North Carolina utility Duke Energy, as
well as Southern Company, also own shares.)

The case looked at whether the Forest Service had authority
under the Mineral Leasing Act to grant rights-of-way within
national forest lands traversed by the Appalachian Trail. “A
right-of-way between two agencies grants only an easement across
the land, not jurisdiction over the land itself,” Chief Justice
John Roberts wrote for the court’s opinion. So the Forest Service
had enough authority over the land to grant the permit. The
dissent, by Justices Sonia Sotomayor and Elena Kagan, argued that
the “outcome is inconsistent with the language of three statutes,
longstanding agency practice, and common sense.”

According to The Washington Post, the plaintiffs in this case,
both Dominion and the Forest Service, had argued that other
pipelines
cross the Appalachian Trail
a total of 34 times. “The
Atlantic Coast Pipeline will be no different,” Dominion said in a
statement after the decision. “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.”

The decision could set an important precedent for public lands,
said Greg Buppert, senior attorney for the Southern Environmental
Law Center, or SELC, which is involved in multiple lawsuits against
the pipeline. This particular Appalachian Trail section on federal
land, which is remote, rugged, and wild, “deserves the highest
protection the law provides,” according to Buppert. But this
ruling likely signals to developers of
the 300-mile Mountain Valley Pipeline
that they could have an
easier time crossing under the trail at a separate location in
Virginia; attorneys for the nearly-complete project called it a
“key missing link,” the Roanoke Times reported.

Though this decision is significant, it doesn’t determine the
ultimate fate of the Atlantic Coast Pipeline. While the Supreme
Court has granted the Forest Service the ability to allow the
project to cross the Appalachian Trail, the Fourth Circuit Court of
Appeals’ striking down of the Forest Service’s permit still
stands. Dominion is required to look at other routes that avoid
parcels of protected federal land, and the Forest Service is
prohibited from approving a route across these lands, if reasonable
alternatives exist, according to Buppert.

Appalachian Trail proposed pipeline crossing The view west along the
Appalachian Trail at Cedar Cliffs, in Virginia, where the Atlantic
Coast Pipeline would be tunneled under the historic trail and the
Blue Ridge Parkway. Norm Shafer / Getty Images

Dominion still
requires eight more permits
for the
600-mile pipeline route
, including an air pollution permit from
Virginia regulators for a controversial compressor station in Union
Hill, a historically black community. It also still needs approval
to cross the scenic Blue Ridge Parkway and a new biological opinion
from the U.S. Fish and Wildlife Service about endangered species
that were not taken into consideration in the original
environmental impact statement. Several landowners along the route
through West Virginia, Virginia, and North Carolina are also still
fighting to retain their property from eminent domain claims.

That means five-and-a-half years after the project was proposed,
Buppert said, “there’s significant uncertainty about what the
ACP route even is right now.”

In addition to crossing protected federal lands, the
current route
traverses steep mountains and many rural,
low-income areas and
communities of color
, including Union Hill, a town settled by
freed slaves after the Civil War. “These risks were known when it
was proposed, but developers elected to push it forward anyway, and
used political pressure on agencies to move their permits through
faster,” Buppert said. “Not surprisingly, those haven’t
withstood judicial reviews.”

Dominion spokesperson Samantha Norris did not respond to
specific questions about the route, but said in an email the
company is “working diligently with the agencies to resolve our
pending permits so we can resume construction later this year”
and complete it by 2022. “We remain fully committed to the
project for the good of our economy and to support the transition
to clean energy,” she said. “And we do not anticipate any
changes to the route.”

Construction officially halted in December 2018 over the
Appalachian Trail permit, with less than 10 percent of the pipeline
in the ground. Opponents applauded that development, but continue
to report problems with some construction sites. On behalf of 15
environmental and community groups, SELC lawyers
filed a motion
on June 1 asking the Federal Energy Regulatory
Commission, or FERC, to supplement its environmental impact
statement from its 2017 approval of the pipeline. The motion states
that “substantial erosion, sedimentation, and slope failures have
occurred” along the route, and that FERC needs to take climate
change and other issues into account in updating its
assessment.

The U.S. is in the midst of a historic pipeline boom to create
infrastructure for the excess stores of natural gas coming from
shale regions in Appalachia and West Texas, and FERC has
historically approved nearly every pipeline project that has come
across its desk. Despite massive protests breaking out in 2016 to
try to stop the Dakota Access Pipeline passing through the Standing
Rock Sioux Reservation, dozens of new pipeline projects across the
country are still being proposed, FERC is still approving them, and
state lawmakers have passed laws to crack down on anti-pipeline
demonstrations.

Opponents of the Atlantic Coast Pipeline have been fighting the
project for six years and have won several important legal cases
recently. A federal appeals court last month rejected the
Trump administration’s request
to revive the Army Corps of
Engineers’ nationwide permit program for new oil and gas
pipelines. The ruling prohibits the agency from allowing companies
to fast-track projects by obtaining a single permit for all its
water crossings, rather than individual permits for each one. The
decision could further delay the Atlantic Coast Pipeline, which had
its nationwide water crossings permit suspended in 2018. The
project has over a thousand stream, river, and wetland crossings.
In the Calfpasture River watershed in Virginia alone, Buppert said,
the current route includes 71.

The community of Union Hill has also successfully challenged
part of the project on the grounds that it could cause negative
public health impacts. Developers plan to build one of three
pipeline compressor stations — which keep natural gas flowing
through the pipe — there. In January, a federal court ruled
Virginia’s Air Pollution Control Board’s review of the station
was “arbitrary and capricious.” The judge overturned the
permit, saying the “failure to consider the disproportionate
impact on those closest to the compressor station resulted in a
flawed analysis.” She, along with two of her colleagues,
ordered the board to reconsider the case
.

Members of the community group Friends of Buckingham County,
where Union Hill is located, are concerned residents lack enough
information about Dominion’s new air permit application —
especially during the COVID-19 pandemic — since many lack
broadband access. Chad Oba, one of the group’s organizers, said
they are focusing on longer-term solutions, too, like making sure
the board is well-versed in environmental justice issues. (In
addition, they want to keep the board apolitical: In 2018,
Virginia’s Democratic governor, Ralph Northam,
removed two regulators
from the board who were leaning against
the permit).

The pandemic has also thrown a wrench in the work of Friends of
Nelson County, another Virginia group that opposes the pipeline.
About 45 miles of the Appalachian Trail cross through the county;
this the contested crossing is on its border in the Blue Ridge
Mountains. “The most important thing we do is to inform and
educate the public about all dimensions of the pipeline and related
matters,” said president Doug Wellman. The organization does a
lot of in-person outreach at farmers’ markets and public
meetings. Now they’re trying to do it all virtually. Later this
year, they plan to launch a major campaign about the major
potential dangers of the pipeline, including primers on landowner
rights and eminent domain.

Due to the delays in its construction, the Atlantic Coast
Pipeline’s price tag has swelled by at least $3 billion to a
total of $8 billion. Since federal regulators allow pipeline
companies up to a 14 percent return on investment, payable by its
customers, Dominion and Duke, who are the buyers of the natural gas
in addition to being the project’s developers, can turn a profit
by passing construction costs onto ratepayers in a region where
they have monopolies.

These costs “will take decades to recover,” said Ryke
Longest, co-director of the Environmental Law and Policy Clinic at
Duke University. And while they wait to be made whole, utilities
like Dominion will eschew investing in other programs like energy
efficiency and renewables, even as states in the region, including
Virginia and North Carolina, move forward with clean energy and
climate change legislation.

“The real problem with the structure of our energy system is
that it encourages large-scale construction projects,” Longest
said. “It’s not thinking of energy as a public service
business, which is what it’s supposed to be.”

Lyndsey Gilpin is Durham, North Carolina-based journalist and
the editor of Southerly, an
independent, non-profit media organization that covers the
intersection of ecology, justice, and culture in the American
South.

This story was originally published by Grist with the headline
Supreme Court clears way for Atlantic Coast Pipeline to cross
Appalachian Trail
on Jun 15, 2020.

Source: FS – All – Ecology – News 2
Supreme Court clears way for Atlantic Coast Pipeline to
cross Appalachian Trail