The petition filed with the U.S. Supreme Court by Atlantic Coast Pipeline, LLC (ACCP, LLC) should be denied, so stated a brief filed August 28 in opposition to the appeal. ACCP, LLC filed its Writ of Certiorari on June 25, asking the Supreme Court to review the December 13, 2018 decision of the Fourth Circuit Court of Appeals that said the U.S. Forest Service lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (Trail). The filing by ACP, LCC was accompanied by a similar petition from the U.S. Solicitor General.
The question presented to the Supreme Court is
“Whether the United States Forest Service has statutory authority under the Mineral Leasing Act to grant a gas pipeline right-of-way across the Appalachian National Scenic Trail.”
The respondents brief argues that:
- The case is not a suitable vehicle to address the question presented because 1) the Fourth Circuit opinion does not conflict with any decision of other U.S. Courts of Appeal and 2) ACP, LLC is only seeking a review of one of the four bases of the Fourth Circuit’s decision;
- The question presented to the Court does not warrant review because the ACP and other pipelines could still cross the Appalachian Trail and in no way does the Fourth Circuit decision prevent the construction of new pipelines (contrary to the contentions of ACP, LLC); and
- The Fourth Circuit’s decision is correct on the merits. There is no dispute that the entire Appalachian Trail is a unit of the National Park System, including where it crosses a national forest. There is no dispute that the Mineral Leasing Act prohibits pipeline crossings over federal lands in the National Park System. And there is no dispute that the relevant parcel where Atlantic seeks to cross the Trail is federal land. Accordingly, this is federal land in the National Park System, and a pipeline cannot cross it without congressional authorization.
The Supreme Court is expected to decide whether to accept the ACCP, LLC petition sometime soon after it reconvenes for its new session on October 1. Historically, only about 1% of cases appealed to the Supreme Court are granted a review. Should the Court grant the appeal, the case would not likely be argued until sometime in 2020.