ACP Appeals Forest Service Decision to U.S. Supreme Court

From Allegheny-Blue Ridge Alliance’s ABRA Update 235:

Atlantic Coast Pipeline, LLC (ACP, LLC) on June 25, 2019, filed an appeal with the U.S. Supreme Court asking it to review the December 13, 2018 decision of the Fourth Circuit Court of Appeals that said the U.S. Forest Service lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (Trail). The filing by ACP, LCC of a Writ of Certiorari (appeal to a higher court a lower court’s decision) was accompanied by a similar petition by the U.S. Solicitor General. Both had been anticipated. In its petition to the Court, ACP, LLC argued that:

  • “Several environmental groups challenged the pipeline on numerous grounds, including the novel theory that the Forest Service lacked statutory authority to grant a right-of-way because the entire Trail and the land underneath is National Park System land under the exclusive authority of the National Park Service. Because the MLA does not authorize any federal agency to grant pipeline rights-of-way across National Park System land, the import of this theory was not that the wrong federal agency had granted the right-of-way under the Trail, but that no agency had that power.”
  • “. . .the decision imperils not just the billions of dollars invested in this pipeline, but future projects that will cross under the Trail, the 50-some pipelines that already cross under the Trail that require ongoing regulatory approvals from other state and federal agencies, and potentially other projects (including electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas) that cross national trails administered by the National Park Service. “In short, the decision below is both profoundly wrong and profoundly important. It misreads federal statutes that make clear that the designation of a trail does not transfer authority over the land being crossed. It will chill investment, harm millions of energy consumers, and unsettle longheld agency views. This decision plainly warrants this Court’s plenary review.”

The Solicitor General’s petition echoes the contentions made in the ACP, LLC petition:

“. . . the court of appeals misread the National Trails System Act, decreeing that long sections of the Appalachian Trail within national forests rest on lands that are rendered part of the National Park System as a result of the presence of the Trail on the surface, and therefore cannot be subject to rights-of-way granted under the Mineral Leasing Act. That ruling threatens to hamper the development of energy infrastructure in the eastern United States, including the construction and operation of the natural gas pipeline at issue in this case.”

The Southern Environmental Law Center (SELC), which represents the petitioners that brought the original lawsuit before the Fourth Circuit, has 30 days (until July 25) to file a brief with the Court commenting on the ACP, LLC and Solicitor General petitions. The seven petitioners represented by SELC – all members of ABRA – are: Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

Reuters press coverage of the ACP filing is here.