A very engaged U.S. Supreme Court (SCOTUS) heard on February 24 arguments for and against overturning the Fourth Circuit Court Appeals’ December 13, 2018 decision to vacate the U.S. Forest Service (NFS)permit for the Atlantic Coast Pipeline (ACP). After the Fourth Circuit turned down an appeal by NFS and Atlantic Coast Pipeline, LLC (ACP, LLC) for reconsideration by all 15 judges in the Circuit, the losing parties appealed to SCOTUS. Their appeal was accepted in September 2019.
At issue in the case was only one of the findings of the Fourth Circuit opinion: that the NFS did not have authority to grant authority for the ACP to cross the Appalachian National Scenic Trail (AT) because the AT was administered by the National Park Service not the Forest Service. During the course hour-long argument, the Justices’ questions revolved around two major questions:
- How can the AT be a separate entity from the land on which it exists, an argument made by the appellants (ACP, LLC and NFS)? Justice Kagan made the observation that such a distinction is not made by anyone in “real life.” The extensive exchange among the justices and the appellant attorneys on this issue can best be described as being, well, “nerdy.”
- What would be the consequences – intended and unintended – if the Fourth Circuit opinion were upheld and the ACP was not permitted to cross the AT? The appellants contended that the Fourth Circuit decision essentially creates a 2,000-mile barrier to any future pipeline or perhaps other projects crossing it. The attorney for the respondents (Cowpasture River Preservation Association and six other ABRA members), Michael Kellogg, countered that the prohibition against pipelines crossing the AT was limited to certain federal lands, not to private and other public lands, and pointed out that several dozen other pipelines already cross the AT. Beyond the 2000-mile barrier issue, the Justices delved into numerous “what if” questions concerning possible unintended consequences of their upholding the Fourth Circuit.
In a February 27 communication to its mailing list, ACP, LLC said: “A positive decision will help us resume construction this summer, to be completed by the end of 2021 and in-service shortly thereafter. We remain confident the law and the facts are on our side.”
Following the SCOTUS hearing, D.J. Gerken of the Southern Environmental Law Center, appearing at a press conference in front of the Supreme Court, reiterated that AT crossing issue is not the only reason that the Fourth Circuit struck down the FS permit for the ACP, and pointed out that there are 7 other needed permits that the ACP lacks.
A copy of the briefs filed in the case, including amicus briefs, are available here. A recording of the proceedings before SCOTUS, will be available on Friday, February 28; click here. The Court is expected to rule in May or June of this year.
For additional reporting and insights on the argument, consult the several news items below in In the News.