Appalachian Trail case could head to Supreme Court

By Pamela King | 02/26/2019 07:30 AM EST

The 4th U.S. Circuit Court of Appeals is in Richmond, Va.

The 4th U.S. Circuit Court of Appeals is in Richmond, Va. Acroterion/Wikipedia

Updated at 9:12 a.m. EST.

A federal appellate court will not reconsider its conclusion that the Forest Service lacked the power to authorize a major natural gas pipeline to cross the Appalachian National Scenic Trail.

Three 4th U.S. Circuit Court of Appeals judges in December pulled the agency’s permits for the 600-mile Atlantic Coast pipeline to cross two national forests and the Appalachian Trail. Atlantic Coast — later followed by the Forest Service — asked the full court to revisit its finding that trail-crossing authority falls to the Interior Department’s National Park Service (Energywire, Jan. 29).


The 4th Circuit yesterday denied the petition for a rehearing en banc, igniting speculation that the case could head to the nation’s highest court.

"Given the quick turnaround, Interior and Atlantic Coast could try and petition for certiorari from the Supreme Court," said ClearView Energy Partners LLC Managing Director Christi Tezak.

Dominion Energy Inc., the pipeline’s largest stakeholder, said today that it expects a Supreme Court petition to be filed in the next 90 days.

"We are confident that the U.S. Departments of Interior and Agriculture have the authority to resolve the Appalachian Trail crossing issue administratively in a manner that satisfies the Court’s stated objection and in a timeframe consistent with a restart of at least partial construction during the third quarter," the company said in a statement this morning.

Dominion Energy Inc., Duke Energy Corp. and other project backers last year halted construction on the pipeline after the 4th Circuit sent back a separate federal approval (Energywire, Feb. 7).

The Supreme Court’s current term ends in June, so the justices’ consideration of an appeal likely wouldn’t come up until the fall.

Pipeline opponents celebrated the 4th Circuit’s denial and said they stand ready to fight a Supreme Court challenge.

"We always felt the panel’s decision was well-reasoned and supported by the facts," said Southern Environmental Law Center attorney D.J. Gerken. "We’re glad to see the full court doesn’t disagree."

The pipeline would cross the Appalachian Trail south of Shenandoah National Park in Virginia.

The 4th Circuit’s holding carries weight because the Forest Service and NPS are subject to very different land management mandates. The park service must leave its lands "unimpaired for the enjoyment of future generations," while the Mineral Leasing Act authorizes the Forest Service, which is housed in the Department of Agriculture, and other agencies to manage for multiple use.

Tezak noted that the denial throws another major wrench in Atlantic Coast’s progress.

Earlier this month, Dominion announced that costs for Atlantic Coast, which is designed to carry natural gas from West Virginia to North Carolina, had ballooned to $7.5 billion. The project is not expected to be in full service until 2021.

"We view the odds of maintaining their recently revised schedule as growing longer," Tezak said.

Dominion said today that its most recent cost estimate for the pipeline took into account the possibility of the 4th Circuit denying the request for rehearing.