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.
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