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U.S. Supreme Court overturns 4th Circuit ruling that would have blocked pipeline crossing
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U.S. Supreme Court overturns 4th Circuit ruling that would have blocked pipeline crossing

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Pipeline scene at Wintergreen (copy)

Before Dominion and Duke Energy abandoned the project, a path had been cleared for the Atlantic Coast Pipeline on this Blue Ridge Mountain slope near the Wintergreen resort, just below the pipeline’s planned crossing underneath the Appalachian Trail.

The U.S. Supreme Court has struck down a Richmond appeals court ruling that would have blocked construction of the Atlantic Coast Pipeline beneath the Appalachian Trail in the Blue Ridge Mountains.

The court announced Monday that it had voted 7-2 to overturn the 2018 ruling by the 4th U.S Circuit Court of Appeals, based in Richmond. The ruling will allow construction of the 42-inch-wide natural gas pipeline to tunnel 600 feet beneath the national scenic trail where it crosses land managed by the U.S. Forest Service in the George Washington National Forest.

The decision removes one obstacle — but not all — for Dominion Resources and its partners to cross the Blue Ridge between Augusta and Nelson counties and complete the $8 billion, 600-mile project and connect gas shale fields in West Virginia to markets on the coast of Virginia and North Carolina.

The company suspended construction 18 months ago, after the 4th Circuit threw out a separate federal permit on protection of endangered and threatened wildlife species in the pipeline’s path.

“This is not a done deal,” said Greg Buppert, senior attorney for the Southern Environmental Law Center, which represented the Cowpasture River Preservation Association, the Sierra Club and other environmental organizations opposed to the pipeline. “The project still has a lot of obstacles in front of it.”

The decision sends the case back to the 4th Circuit, which vacated the Forest Service permit for the project for a series of defects — such as inadequate review under federal law of erosion and landslide threats that the pipeline’s construction posed in the mountainous national forest.

“Today’s decision doesn’t even fix the Forest Service permit,” Buppert said.

The Forest Service said last week that it is preparing a new environmental impact statement for the project that Dominion said would allow the issuance of a new permit that addresses the other issues the 4th Circuit raised in its ruling in December 2018.

“We have been working diligently with the U.S. Forest Service on the other issues identified by the court,” said Ann Nallo, a spokeswoman for the pipeline company and Dominion, its majority owner. “This issue at the Supreme Court was the only one that wasn’t procedural or about providing additional information, since the heart of the question was which agency had the authority.”

Justice Clarence Thomas, who wrote the 18-page majority opinion, dismissed as “circuitous” the legal arguments by environmental organizations that the land beneath the trail is part of the National Park System and that the Forest Service lacks authority to permit the gas pipeline to cross it on national forest land.

Thomas said the National Park Service’s only role is to administer the 2,200-mile trail as an easement across land that Congress explicitly granted to the Forest Service more than a century ago.

“Easements are not land, they merely burden land that continues to be owned by another,” he said in the opinion, joined in whole or part by all of his colleagues except Justices Sonia Sotomayor and Elena Kagan, who dissented.

The 21-page dissent asserts that the Appalachian Trail became part of the National Park System administered by the Park Service in a series of federal laws enacted from 1968 to 1973, which give Congress alone the authority to allow a natural gas pipeline to cross the national scenic trail on federally owned land.

“By contrast, today’s Court suggests that the trail is not ‘land’ in the Park System at all,” Sotomayor wrote in the dissent.

The decision represents a major victory for Dominion, which said the court “upheld longstanding precedent allowing infrastructure crossings of the Appalachian Trail” while not disturbing the trail or those who use it.

“To avoid impacts to the trail, the pipeline will be installed hundreds of feet below the surface and emerge more than a half-mile from each side of the trail,” Nallo said. “There will be no construction activity on or near the trail itself, and the public will be able to continue enjoying the trail as they always have.”

The Appalachian Trail Conservancy, a private steward of the national scenic trail, has no position on the pipeline, but President and CEO Sandra Marra said the Supreme Court ruling “would keep in place the cooperative management system that tens of thousands of Appalachian Trail volunteers, professionals and agency partners have collaborated under for decades.”

The majority opinion raised concerns about the effect of the 4th Circuit ruling on federal control over pipeline crossings of state and privately owned property crossed by national scenic trails.

“What will not change, no matter how this decision impacts pipeline permitting rights, is the [conservancy’s] dedication to protecting, managing and advocating for the [Appalachian Trail] in coordination with our federal, state and regional partners,” Marra said in a statement.

West Virginia Attorney General Patrick Morrisey led an 18-state coalition in opposition to the 4th Circuit ruling, which he warned would jeopardize his state’s oil and gas industry by creating a nearly impenetrable barrier to supplying energy to markets east of the Blue Ridge.

“The Supreme Court’s decision will help put back to work thousands of men and women,” Morrisey said Monday.

Construction of the Atlantic Coast Pipeline depends on new permits from the Forest Service; the U.S. Fish & Wildlife Service (which already has issued two permits rejected by the 4th Circuit); the National Park Service, which would have to permit the crossing beneath the Blue Ridge Parkway; and the U.S. Army Corps of Engineers, which governs a nationwide water quality permit struck down this year by a federal court in Montana.

The 4th Circuit also vacated a state air pollution permit last year that would have allowed construction of a natural gas compressor station next to a historic African American community at Union Hill in Buckingham County.

At the same time, environmental groups are awaiting action by the U.S. Court of Appeals, D.C. Circuit, on their lawsuit challenging the permit the Federal Energy Regulatory Commission issued for the pipeline project. Environmentalists recently petitioned the commission to revise its environmental impact statement to reconsider the need for the natural gas that the pipeline would transport and the damage to the environment that the project would cause.

“It’s been six years since this pipeline was proposed — we didn’t need it then and we certainly don’t need it now,” Dick Brooks said for the Cowpasture River Preservation Association, based in the Virginia Highlands.

“Today’s decision doesn’t change the fact that Dominion chose a risky route through protected federal lands, steep mountains, and vulnerable communities.”

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