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: