Category Archives: Appalachian Trail

Supreme Court Overturns Fourth Circuit Ruling

On Monday June 15, 2020, the U.S. Supreme Court announced its decision in the Cowpasture v. Forest Service case, reversing the decision of the Fourth Circuit that the Forest Service did not have authority to grant permission for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. The vote was 7-2, with Justice Thomas writing the decision and Justices Kagen and Sotomayor dissenting. By reversing the Fourth Circuit ruling, the Court’s opinion says that federal law allows the U.S. Forest Service to grant developers of the $8 billion Atlantic Coast Pipeline a right-of-way across the Appalachian National Scenic Trail.

Although Dominion will undoubtedly proclaim the Court’s ruling as a great victory, the fact remains that the ACP still faces numerous legal challenges, and lacks at least seven permits that it needs to move forward.  Greg Buppert, senior attorney for the Southern Environmental Law Center, said “This is not a done deal. The project still has a lot of obstacles in front of it.”

In a Friends of Nelson press release, Doug Wellman, the group’s president, said, “While we are disappointed by the Forest Service v. Cowpasture decision, the great majority of the legal challenges to the Pipeline have been successful. As a result, the Pipeline lacks at least eight permits that it needs to move forward. We will continue to fight the Pipeline with every ounce of our energy to stop its destructive path through Nelson County and many other communities.”

Ernie Reed, formerly president of Friends of Nelson and currently a member of the Nelson County Board of Supervisors, called attention to one of the current challenges facing the ACP: “We are focused on last Thursday’s announcement that the Forest Service has been forced to draft a Supplemental Environmental Impact Statement for the ACP project. The George Washington National Forest, dozens of citizen groups and an amazing legal team still stand in the way of the ACP.”

In a press release from the Southern Environmental Law Center, Program Director D.J. Gerken says, “While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power. It’s time for these developers to move on and reinvest the billions of dollars planned for this boondoggle into the renewable energy that Virginia and North Carolina customers want and deserve.”

As the SELC press release further notes, “The Supreme Court’s decision comes at the same time that the purported need for the Atlantic Coast Pipeline, proposed in 2014, is receiving renewed scrutiny, as states are steering their energy economies away from fossil fuels. In March, Dominion Energy told Virginia regulators that the build out of new gas-fired power plants is no longer ‘viable’ in the state, and the Virginia Clean Economy Act signed into law in April requires that the utility shut down all of its existing gas plants by 2045. North Carolina’s Clean Energy Plan calls for a reduction in greenhouse gas emissions from power plants of 70% over 2005 levels by 2030 and total carbon neutrality by 2050. …. [T]he exorbitant price tag for the Atlantic Coast Pipeline continues to climb because of Dominion’s insistence on a harmful and risky route. Under these circumstances and at a time when the region is moving rapidly to 100% renewable energy, it’s unreasonable to expect customers to pay for this obsolete $8 billion fracked gas pipeline.”

The SELC press release lists some of the permits in question for the ACP:

  • Endangered Species Act permit (Biological Opinion) from the U.S. Fish and Wildlife Service
  • Special use permit and right-of-way grant from the U.S. Forest Service
  • Right-of-way permit from the National Park Service
  • Virginia air pollution permit for the Union Hill compressor station
  • Four Clean Water Act authorizations from the Corps of Engineers for Pennsylvania, West Virginia, Virginia, and North Carolina
  • The Atlantic Coast Pipeline’s central permit from the Federal Energy Regulatory Commission is under review in the D.C. Circuit Court of Appeals, and arguments are expected later this year. The case will determine if FERC correctly determined that the Atlantic Coast Pipeline was needed to fuel gas-fired power plants when it approved the project in 2017.

Read the Supreme Court opinion here.

Read the Friends of Nelson press release here.

Read the Southern Environmental Law Center’s press release here.

Status of legal challenges to ACP permits and certifications (as of June 16)

Media coverage, discussing various aspects of the decision and its ramifications:

Photos from DC

Core members of the SELC team fighting the Atlantic Coast Pipeline pose on the steps of the Supreme Court of the United States. (@Stephanie Gross, used with permission)

Photographer Stephanie Gross, from Nelson County, calls our attention to the Southern Environmental Law Center news feed, which includes photos (some hers, some not) of the dedicated SELC law team at the Supreme Court on February 24, 2020. Her comment: “It’s not often that I get to shoot something with such personal relevance!”

Cowpasture Case – Oral Arguments and Press Coverage

The case of the US Forest Service and the Atlantic Coast Pipeline against Cowpasture River Preservation Association et al. was heard before the US Supreme Court on Monday February 24, 2020.

The transcript of the oral arguments is here.

On Friday afternoon February 28, the audio recording of the argument will be published here.

The argument analysis on the SCOTUS Blog is here.

A sampling of media coverage on the hearing:

SELC Will Argue Before Supreme Court

A brief video from Southern Environmental Law Center: The Atlantic Coast Pipeline, a damaging, unnecessary project, has lost 8 required permits and is already obsolete. SELC and our clients will be before the Supreme Court of the United States in a case about the pipeline’s proposed Appalachian Trail crossing on protected federal lands at 10 a.m. on Monday February 24, 2020.

Following the Cowpasture Case in the Supreme Court

The arguments in the case of the Atlantic Coast Pipeline and the Forest Service vs the Cowpasture River Preservation et al, in which the ACP is appealing the Fourth Circuit Court’s vacating of the Forest Service’s permit for the ACP to cross the Appalachian Trail, will be heard at the Supreme Court beginning at 10 a.m. on Monday February 24, 2020. One hour has been allotted for the hearing, with another case to follow promptly at 11 a.m.

The U.S. Forest Service and Atlantic Coast Pipeline, LLC are the appellants in the case. The respondents are Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Association, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

All briefs that have been filed in the case are available here.

For additional background and commentary on the case, see the February 18 SCOTUSblog post here.

Information from SELC and their news feed is here.

Although there is no way to remotely stream oral arguments at the Supreme Court in real time, the transcript of the oral argument will be available in the afternoon on February 24. On Friday February 28, the audio recording of the argument will be published.

Anyone wishing to attend the argument in person should consult instructions on the Supreme Court website. Note that space in the courtroom is limited and there is no guarantee that all who wish to attend will be seated, so arrive very early if you hope to attend. The Supreme Court is at 1 First St., SE, Washington, DC, located 0.3 miles from the Capital South Metro Station. The closest parking garage is at Union Station, located 0.5 miles from the Court.


Herring Files Amicus Brief in Cowpasture Case

Virginia Attorney General Mark Herring has filed an amicus brief in the Cowpasture case before the US Supreme Court, the case in which the Forest Service and the Atlantic Coast Pipeline are challenging the Fourth Circuit Court’s ruling on the Forest Service’s permit for the ACP to cross the Appalachian Trail.

Herring’s lead argument is that “The Pipeline Threatens Virginia’s Natural Resources Without Clear Corresponding Benefits” – in other words, the ACP is not needed. The brief’s second argument is that “The Challenged Permitting Decision Violated Numerous Federal Statutes and Regulations.”

The brief’s summary:

The Atlantic Coast Pipeline is a proposed 600-mile-long natural gas pipeline that would begin in West Virginia and terminate in two different locations in North Carolina and Virginia. The pipeline would bisect Virginia from its northwestern corner to its southern border before splitting in two and turning northeast towards the Atlantic Ocean. Along its proposed route, the pipeline would run directly through several of Virginia’s most cherished places — the George Washington National Forest, the Blue Ridge Parkway, and the Appalachian Trail.

The pipeline company (Atlantic) claims the project is necessary to address an unmet and growing demand for natural gas in Virginia and North Carolina. But that claim does not withstand scrutiny. Indeed, recent analyses indicate that the demand for natural gas will remain flat or decrease for the foreseeable future and can be met with existing infrastructure.

Beyond offering dubious benefits, the pipeline unquestionably threatens some of Virginia’s most valued natural sites. The George Washington National Forest, the Blue Ridge Parkway, and the Appalachian Trail are woven into the fabric of Virginia’s history, offering solitude and recreation to Virginians and visitors for generations, bringing tourism and its corresponding benefits to the neighboring communities. Despite the undisputed (and indisputable) value of the natural resources in the pipeline’s path, the United States Forest Service failed to conduct the meticulous review of Atlantic’s permit application called for by the Service’s governing statutes and regulations. Instead, the permitting process was rushed and slip-shod and driven by Atlantic’s arbitrary deadlines. Given the chaotic nature of the agency proceedings, it is unsurprising that the Fourth Circuit invalidated the permit on three separate grounds that are entirely independent of the question whether the Forest Service has authority to grant Atlantic permission to cross the Appalachian Trail.

Atlantic and the Forest Service challenge none of those alternative holdings. As a result, the challenged permit will be invalid regardless of how the Court resolves the question on which it granted review. What is more, the Fourth Circuit’s decision specifically requires the Service to consider alternative routes that do not cross National Forest land. For that reason, it is highly unclear if the issue before this Court — whether the Mineral Leasing Act would authorize the Forest Service to issue a pipeline right-of-way across the Appalachian Trail — will re-emerge. The Forest Service’s arguments to the contrary betray its intent to repeat the shoddy review conducted the first time around, ignoring its statutory and regulatory mandate to give due consideration to alternative routes for the pipeline. This Court should not indulge the agency’s abdication of its critical responsibilities.

Virginia agrees with the arguments made by respondents and their other State amici and urges this Court to affirm if it reaches the question presented. In the alternative, Virginia asks the Court to dismiss the writ of certiorari given the Fourth Circuit’s (entirely correct) conclusion that the challenged permit fails for numerous other reasons. Because respondents and their other State amici aptly present the arguments for affirming on the specific question on which this Court granted review, this brief focuses on the Fourth Circuit’s alternative grounds for invalidating the challenged permit.

Read Herring’s full amicus brief here.

Other states attorneys general filed amicus briefs supporting the Fourth Circuit’s decision. From Allegheny-Blue Ridge Alliance’s ABRA Update #260:

The amicus brief filed by Vermont Attorney General Thomas Donovan, on behalf of his state and 12 other states and the District of Columbia, stressed that the Appalachian Trail is a vital part of the National Park System and that “existing Appalachian Trail pipeline crossings and utility easements will be unaffected” by the Fourth Circuit’s decision. The AGs’ brief also notes that the “availability of adequate energy sources or even this particular pipeline project” are not imperiled by the Fourth Circuit decision, noting that the project could be built on nonfederal land to cross the Trail.

Seven of the 13 states filing amici briefs in support of the Fourth Circuit decision encompass 58% of the total length of the Appalachian Trail. Of the 18 states whose Attorneys General filed briefs in support of the Forest Service/ACP appeal, only 2 are states traversed by the Trail – Georgia and West Virginia – and their total of 80 Trail miles represents less than 4% of the Trail’s 2200-mile length. Other amici briefs filed this week in support of the Fourth Circuit decision include those by: John Jarvis, former Superintendent of the National Park Service; Natural Resources Defense Council; Wintergreen Property Owners Association; and a joint brief by Nelson County, VA and the City of Staunton.

A link to all the briefs filed is available here.