The U.S. Supreme Court will hear arguments today in a case that could determine the fate of the $8 billion Atlantic Coast Pipeline that Dominion and Duke Energy are planning to build to transport natural gas 600 miles from West Virginia, through Virginia and into North Carolina.
The project, which has been hotly opposed by environmental and local groups since its inception, has been repeatedly hamstrung by legal challenges and the loss of eight of the permits needed for its construction.
Most recently, the U.S. Court of Appeals for the 4th Circuit in Richmond stripped the project of its state permit to build a compressor station in the historic freedmen’s community of Union Hill in Buckingham County on the grounds that Virginia officials had failed to consider all best available technology and had not adequately evaluated the facility’s environmental justice impacts.
The challenge the Supreme Court will take up Monday concerns another 4th Circuit decision, this one from December 2018, to overturn a U.S. Forest Service permit granting the pipeline a right of way on federal lands to cross beneath the Appalachian Trail.
The Southern Environmental Law Center, which is representing five Virginia conservation groups in the consolidated case, has argued that the Forest Service did not have the authority to grant such a permit and that the pipeline is unnecessary as a result of shifts away from natural gas toward greater renewable use.
“Congress designated the Appalachian National Scenic Trail as a National Scenic Trail administered by the secretary of the Interior, who delegated that duty to NPS,” the 4th Circuit order says. “Accordingly, the ANST is land in the National Park System.”
Dominion Energy, the lead partner in the pipeline, says that the 4th Circuit decision “ignores key provisions in several statutes, contradicts the longstanding views of every agency involved and converts a special rule about National Park Service lands into an impregnable barrier dividing energy sources west of the [Appalachian] Trail from consumers east of the Trail.”
The Supreme Court’s decision to take up the case was seen by many watchers as an early victory for the Atlantic Coast Pipeline, whose backers were joined in their appeal of the 4th Circuit ruling by the Trump administration.
In a fourth-quarter earnings call Feb. 11, Dominion chairman, president and CEO Tom Farrell said the company remains “optimistic” that the Supreme Court will reverse the lower court’s decision.
Further underscoring that confidence was the company’s announcement that it had acquired the 5 percent stake in the pipeline previously owned by Southern Company, giving Dominion 53 percent ownership of the project.
Virginia Attorney General Mark Herring in January filed an amicus brief with the Supreme Court defending the 4th Circuit’s ruling.
“Virginia and other states have to be able to rely on federal agencies to properly do their jobs when considering permits for this kind of major project because their approval has a huge impact on whether a project is actually built,” wrote Herring. “In this case, the U.S. Forest Service completely failed to protect Virginia’s natural resources when issuing its permit. I hope the Supreme Court will send a clear message that these federal agencies cannot cut corners or rubberstamp projects.”
More than 50 percent of the pipeline will lie in Virginia. No decision is expected from the court until the spring.