High court should hear pipeline case

The Exponent Telegram

While little actual groundwork is being laid on either the Atlantic Coast Pipeline or Mountain Valley Pipeline projects through disputed areas, a great deal of legal work is occurring.

In the past few weeks, the Atlantic Coast Pipeline’s request for the U.S. Supreme Court to hear its challenge of the Fourth Circuit Court of Appeals’ ruling against the pipeline crossing a narrow pathway on the Appalachian Trail has gained a number of supporters, including a 16-state coalition headed by West Virginia and its attorney general, Patrick Morrisey.

The Fourth Circuit ruling stopped the Atlantic Coast Pipeline (ACP) from crossing the Appalachian Trail because the three judges ruled that the U.S. Forest Service “abdicated its responsibility to preserve national forest resources” and lacked authority in the matter regarding the trail.

Its ruling on Dec. 13, 2018, the Fourth Circuit said, “... we conclude that the Forest Service’s decisions violate the NFMA (National Forest Management Act) and NEPA (National Environmental Policy Act), and that the Forest Service lacked statutory authority pursuant to the MLA (Mineral Leasing Act) to grant a pipeline right of way across the ANST (Appalachian National Scenic Trail). Accordingly, we grant the petition for review of the Forest Service’s SUP (Special Use Permit) and ROD (Record of Decision), vacate those decisions, and remand to the Forest Service for further proceedings consistent with this opinion.”

The ruling further clouds and stymies the pipeline effort because the National Park Service has indicated that it does not think it has the authority to authorize the pipeline, as the decision noted: “The NPS (National Park Service) has indicated that it does not have the authority to authorize a pipeline crossing of the ANST on its lands. Instead, legislation proposed by Congress and signed into law by the President would be necessary to allow the NPS the authority to review, analyze, and approve a pipeline crossing of the ANST on its lands.”

Morrisey’s recently filed friend-of-the-court brief isn’t the only sign of pipeline support, as the question of whether the ACP received proper permission from the U.S. Forest Service, which apparently owns the land in question, or the National Park Service, which administers the Appalachian Trail, is one that seems to require a decision by a higher authority than lower court judges. Several other groups have stood up to voice support to have the high court hear the appeal.

Quite frankly, there is too much at risk in terms of balancing the need for future development while preserving the environment and the trail for future use.

The fact that there are already 56 pipelines that cross the trail calls into question the logic of the Fourth Circuit ruling, although it appears many of the pipelines were there prior to development of the trail and would thus be grandfathered in.

Also at play is the relative small part the trail crossing plays — 1/10 of a mile — in the grand scheme of a 600-mile pipeline that will pump $7 billion into the economy just by building it, while also generating a sustaining tax base for many of the counties that it passes through, as well as counties that are sites of major drilling operations.

Morrisey is adamant that the lower court ruling is wrong.

“The folks challenging the pipeline want to make all federal land along the Appalachian Trail an impenetrable barrier,” he said. “If the plaintiffs in this case, who hope to try and bring the pipeline to a grinding halt, have their way, we’re going to see a significant step back for energy development in our state and in our country.”

Morrisey said he understands great effort will be made to lessen any impact on the trail or any part of the environment along the pipeline’s path.

“The Atlantic Coast Pipeline is 600 miles long. The ACP crosses the trail at just one place — just one,” Morrisey said. “That single point of contact straddles two slivers of Virginia counties. So most importantly, not only does the pipeline never touch the trail, it goes about 600 feet beneath it using a horizontal, directional drill. That means there is going to be zero impact to the trail.”

The 16 states behind the alliance are joining a strong coalition of support that includes Mountain Valley Pipeline developers, because they are also impacted by the Fourth Circuit’s ruling, as well as energy, labor and logging groups.

Those groups include the West Virginia Chamber of Commerce, the Independent Oil and Gas Association of West Virginia and the West Virginia Oil and Gas Association, as well as at least 15 other national groups.

This is clearly a case of great importance, not only to West Virginia but to national energy policy and this country’s economic future.

That is why the court decision is generating so much interest on both sides, from environmentalists to energy producers and economic development advocates.

We remain supportive of the pipeline projects, with the understanding that they must adhere to the already-stringent permitting process, taking all steps to keep the environment as pristine as possible.

The pipelines are needed, just as further efforts to develop other sustainable energy sources are needed, if the U.S. is to become truly energy independent and not be held hostage by world influences for power generation.