Arkansas Democrat-Gazette

High court hears pipeline battle

Justices reconsider gas transit under Appalachia­n Trail

- DENISE LAVOIE

A majority of U.S. Supreme Court justices Monday questioned a lower-court ruling that tossed out a key permit needed for the Atlantic Coast Pipeline to cross under the Appalachia­n Trail.

Justices grilled a lawyer for environmen­tal groups who sued and won a 2018 ruling from the Richmond, Va.-based 4th U.S. Circuit Court of Appeal throwing out a special-use permit for the 605-mile natural gas pipeline.

The 4th Circuit found that the U.S. Forest Service did not have the authority to grant a right-of-way to allow the pipeline to cross beneath the Appalachia­n Trail in the George Washington National Forest.

But conservati­ve justices, who hold a 5-4 majority on the Supreme Court, expressed reservatio­ns about the ruling, with Chief Justice John Roberts at one point saying the lower court’s finding would “erect an impermeabl­e barrier” to any pipeline from areas where natural gas is located to areas where it is needed.

“Absolutely incorrect,” responded attorney Michael Kellogg, representi­ng the environmen­tal groups.

Kellogg said there are currently 35 pipelines that run under the Appalachia­n Trail, 19 of them on federal land with easements granted before the trail was designated a

national scenic trail under the 1968 National Trails System Act. The remaining pipelines are on state and private land, he said.

But Justice Brett Kavanaugh told Kellogg that the environmen­tal groups’ position has “significan­t consequenc­es to it, enormous consequenc­es.”

The 4th Circuit found that the 1920 Mineral Leasing Act allows rights-of-way for pipelines on federal land, except for land in the National Park System. The court found that the trail is considered a unit of the Park System, so the Forest Service doesn’t have the authority to approve a right-of-way.

Lawyers for project developers Dominion Energy and Duke Energy, backed by the Trump administra­tion, say the Forest Service has jurisdicti­on over land in the George Washington National Forest, where a 0.1-mile segment of the pipeline would cross about 600 feet beneath the Appalachia­n Trail. It would transport natural gas from West Virginia to North Carolina and Virginia.

The Sierra Club and other environmen­tal groups say that because the 2,200-mile scenic trail is considered a unit of the National Park System, no federal agency can grant a rightof-way for the pipeline. They say only Congress can approve such a crossing.

The narrow question before the Supreme Court is whether the Forest Service has the authority to grant rights-of-way through lands crossed by the Appalachia­n Trail within national forests.

Conservati­ve justices expressed concern that concluding that no federal agency can grant easements for pipeline projects on lands crossed by the trail within national forests could erect a roadblock to energy infrastruc­ture projects.

Dominion and the federal government say the Trails System Act did not transfer lands crossed by the trail to the National Park Service. They argue that although the Park Service is charged with overall administra­tion of the trail, the actual lands crossed by the trail within national forests remain under the jurisdicti­on of the Forest Service.

Some of the court’s liberal justices questioned the argument made by Dominion and the government that the trail cannot be considered “land” in the National Park System because it is only a right-of-way that crosses federal land under the jurisdicti­on of the Forest Service.

“It’s a … difficult distinctio­n to wrap one’s head around,” Justice Elena Kagan said.

“When you walk on the trail, when you bike on the trail, when you backpack on the trail, you’re backpackin­g and biking and walking on land, aren’t you?” Kagan asked Assistant Solicitor General Anthony Yang.

But the conservati­ve justices and Justice Stephen Breyer, considered a member of the court’s liberal wing, repeatedly noted that the pipeline would be buried more than 600 feet below the Appalachia­n Trail so would not actually cross it.

Even if the court rules in favor of the project developers, the Forest Service would still need to address three other issues cited by the 4th Circuit when it tossed out the permit, including the court’s finding that the agency had failed to fully consider alternativ­e routes to avoid national forests.

 ?? (AP file photo) ?? Signs marking the route of the Atlantic Coast Pipeline in Deerfield, Va., are shown in 2018. The Supreme Court has taken up the question of whether the U.S. Forest Service can grant rights of way through lands crossed by the Appalachia­n Trail within national forests.
(AP file photo) Signs marking the route of the Atlantic Coast Pipeline in Deerfield, Va., are shown in 2018. The Supreme Court has taken up the question of whether the U.S. Forest Service can grant rights of way through lands crossed by the Appalachia­n Trail within national forests.

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