In a closely watched decision that will move one of the nation’s largest energy infrastructure projects a few steps nearer to realization, the U.S. Supreme Court has ruled that the U.S. Forest Service (USFS) acted lawfully when it granted a permit for the proposed $8 billion Atlantic Coast Pipeline (ACP) to cross under the Appalachian Trail.

The 7-2 ruling, handed down June 15, removes the biggest legal obstacle to the 600-mile pipeline, which would carry up to 1.5 billion cubic feet of natural gas from the Marcellus Shale basin in West Virginia to customers in Virginia and North Carolina.

Questions over which federal agency has the authority to issue a permit, known as a right-of-way, in the Appalachian Trail sector of the pipeline have kept the project tied up in courts. In issuing its decision, the Supreme Court overturned a 2018 ruling by the 4th Circuit Court of Appeals, which said the Forest Service lacked the authority to approve the right-of-way, because the Appalachian Trail is under the jurisdiction of the U.S. Park Service (NPS). The pipeline wouldn’t actually “cross” the Appalachian Trail; it would be constructed and installed hundreds of feet beneath it.

Untangling Jurisdictional Questions

Speaking for the majority, Justice Clarence Thomas addressed the vexing question of whether the Interior Department’s decision to make the NPS responsible for the Appalachian Trail also meant the NPS has authority over land underneath the trail. Thomas determined that the administrative arrangement did not remove the USFS’s power to approve construction under the trail.

“Accordingly, the Forest Service had the authority to issue the permit here,” he wrote.

The Southern Environmental Law Center (SELC), one of the green groups suing to stop the pipeline, remained defiant after the ruling was handed down.

“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 need this pipeline to supply power,” SELC’s DJ Gerken said in a statement.

In Operation by 2022?

As expected, the court’s ruling was welcomed by the project’s two leading developers, Dominion Resources and Duke Energy. Dominion expects to begin construction later this year and is looking at having the pipeline in operation by early 2022.

“Today’s decision is an affirmation of the Atlantic Coast Pipeline and communities across our region that are depending on it for jobs, economic growth, and clean energy,” Duke Energy said in a statement. “We look forward to resolving the remaining project permits.”

The project’s developers should be able to obtain the missing USFS permit later this summer. Other permits shouldn’t pose a problem unless there is a change of administrations in January. Then, all bets are off.

Author

  • Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.