The stage is set for a high-stakes showdown at the U.S. Supreme Court over the Atlantic Coast Pipeline’s proposed crossing of the Appalachian Trail.
The court agreed Friday to hear an appeal of a decision by a Richmond-based federal appeals court last year. That court revoked the permit the U.S. Forest Service issued to allow a partnership led by Dominion Energy to build the proposed natural gas pipeline beneath the Appalachian Trail between Augusta and Nelson counties in the Blue Ridge Mountains.
The 4th U.S. Circuit Court of Appeals ruled in December that the Forest Service did not have authority to allow the $7.5 billion pipeline to cross beneath the trail at a critical choke-point for the 600-mile project to link shale gas wells in West Virginia with energy markets in southeastern Virginia and eastern North Carolina.
Dominion hailed the court’s decision to hear the appeal as “a clear path forward to resolve this important issue,” while environmental groups promised to continue their fight against construction of “a dangerous, costly, and unnecessary project.”
The company said it expects the Supreme Court to hear arguments on the case early next year and rule by June.
Led by Dominion and Duke Energy, the company contends that “long-standing precedent” allows pipelines to cross the 2,000-mile national scenic trail.
But the Southern Environmental Law Center, representing the Sierra Club and other environmental groups, says past crossings were made primarily on state or private lands, or under previous federal law.
Construction of the pipeline, first proposed five years ago, already is more than two years behind schedule and up to $3 billion over budget in large part because of rulings by the 4th Circuit that have vacated federal permits for the project.
Dominion is asking the U.S. Fish and Wildlife Service to reissue a permit that the 4th Circuit vacated last year because of inadequate analysis of the project’s likely effect on endangered or threatened animal species in its path.
The company stopped work on the project in December after the appeals court vacated the biological opinion the agency approved.
The 4th Circuit ruling on the Appalachian Trail crossing prompted the company to adopt a new two-pronged strategy to build the pipeline first from Buckingham County, where it would intersect with an interstate natural gas pipeline at a planned gas compressor station, to the Atlantic Coast.
Environmental groups have appealed the state air quality permit for the compressor station, which they contend poses unfair risks to a historically African American community at Union Hill.
The rest of the project would depend on the Supreme Court or an act of Congress to allow construction of the pipeline on federal lands beneath the Appalachian Trail.
The company hopes for “a favorable resolution of the Appalachian Trail case to resume full construction by next summer and complete the project by late 2021,” Dominion spokesman Aaron Ruby said. “The Atlantic Coast Pipeline is more important now than ever. The economic vitality, environmental health and energy security of our region depend on it.”
The Southern Environmental Law Center and Sierra Club “defend the lower court’s decision in this case,” it promised.
“We won’t stand by while Duke and Dominion Energy try to force it on our public lands, threatening people’s health, endangered species, iconic landscapes and clean water along the way.”
Although the Mountain Valley Pipeline is not directly involved in the case, its plans to cross the trail could be affected.
In a friend-of-the-court brief, Mountain Valley urged the Supreme Court to take the appeal, noting that its route across the trail along the Virginia-West Virginia line in Giles County remains unfinished — “a key missing link for the almost-completed MVP project.”
Plans call for boring 80 feet under the scenic footpath to bury the 42-inch diameter pipe, leaving a buffer zone the size of a football field on each side.
Work on the trail crossing, which is in the Jefferson National Forest, was halted by the 4th Circuit on different grounds: that the Forest Service failed to adequately take into account the erosion and sedimentation expected from building the pipeline through about 3.5 miles of federal woodlands.
The process of getting a new permit from the Forest Service began after the court’s July 2018 ruling but was complicated by the decision that came down later that year in the Atlantic Coast case.
Mountain Valley has other options for crossing the trail. In a June filing with the Federal Energy Regulatory Commission, it raised the possibility of a land swap with the U.S. Department of the Interior that would allow it to keep its crossing of the Appalachian Trail in exchange for a piece of property it owns near the trail elsewhere in Giles County.
FERC also has reviewed a plan to cross the trail on private land to the south, although that option is not being seriously considered.
Staff writer Laurence Hammack contributed to this report.