Supreme Court upholds permit for $8 billion pipeline under Appalachian Trail

The Supreme Court on Monday upheld a permit for a controversial $8 billion gas pipeline that would tunnel below the famed Appalachian Trail.

The 7-2 opinion handed a defeat to environmental groups who challenged the Atlantic Coast Pipeline (ACP), which would carry natural gas some 600 miles from West Virginia to North Carolina.

The decision to uphold the permit resolves a complex bureaucratic dispute involving multiple U.S. environmental agencies and overlapping legal authorities.

The justices held that the U.S. Forest Service (USFS) had been duly authorized to greenlight the project, rejecting the challengers’ claim that power over the affected land lay elsewhere.

The dispute stemmed from the Department of the Interior’s decision to make the National Park Service (NPS) responsible for the Appalachian Trail. Prior to the court’s Monday decision, the question of whether this move also transferred authority of lands underneath the trail had been an open one.

But Justice Clarence Thomas, writing for the majority, said the administrative arrangement did not remove the USFS’s power to permit construction under the trail.

“Accordingly, the Forest Service had the authority to issue the permit here,” wrote Thomas, whose majority opinion cut across ideological lines.

Thomas was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh — fellow members of the court’s conservative wing — as well as liberal Justices Stephen Breyer and Ruth Bader Ginsburg. Two of the court’s liberals, Sonia Sotomayor and Elena Kagan, dissented.

“For decades, more than 50 other pipelines have safely crossed the trail without disturbing its public use. The Atlantic Coast Pipeline will be no different,” ACP spokeswoman Ann Nallo said by email, reiterating the company’s plans to be in operation by 2022.

“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. 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 case came before the justices on appeal from a 2018 ruling by the 4th Circuit Court of Appeals, which sided with environmentalists.

The lower court ruled that the Appalachian Trail fell under the authority of the NPS, which it said was barred by law from granting land access, known as a right-of-way, for energy development.

The Supreme Court’s Monday ruling reverses that decision, finding that one of the laws in question — the Mineral Leasing Act — authorized the permit issued by the USFS. 

“We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the” lower court, Thomas wrote.

The ACP remains tied up in a number of other legal disputes and has yet to secure several other permits it needs to follow its proposed route. 

“While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power,” DJ Gerken, with the Southern Environmental Law Center, which sued over the pipeline, said in a statement. 

In January, the 4th Circuit struck down another permit for one of the pipeline’s compression stations set to be built in Virginia in Union Hill, a community founded by freed slaves after the Civil War. 

Residents had argued the project would lead to poor health conditions for the largely black community. 

Environmental groups have pledged to continue to fight the pipeline in other outstanding cases.

“This decision doesn’t greenlight the dangerous Atlantic Coast Pipeline. The fact remains the developers cannot move ahead without securing eight crucial federal and state permits required for construction—concerning air pollution, endangered species, rights of way and clean water,” the Natural Resources Defense Council said in a statement.

 “That’s why we’ll continue fighting through all legal and federal and state avenues to ensure this proposed fracked gas pipeline—which threatens the air, drinking water, environmental justice communities and our climate—is never built.”

Updated at 3:23 p.m.