Morning Trail
The proposed pipeline would move 1.5 billion cubic feet of natural gas per day from the gas-rich Marcellus Shale of West Virginia to southern North Carolina. (Photo: Joe Dodd/Stocksy)

The Supreme Court Approved More Drilling Under the AT

During a week of historic decisions, the Supreme Court decided that an energy company can drill under the Appalachian Trail

Morning Trail

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The Appalachian Trail made it to Washington last week. On June 15, the Supreme Court took on a case about a contentious natural gas pipeline crossing the trail, United States Forest Service vs. Cowpasture River Association. On a 7-2 vote, they overturned a ruling from the Fourth Circuit court of Appeals and decided that, based on the Mineral Rights Act, which allows for government-sanctioned extraction on public land, the Forest Service could grant Dominion Energy the right to run the Atlantic Coast Pipeline (ACP) under the Appalachian Trail in the George Washington National Forest.

The proposed pipeline would move 1.5 billion cubic feet of natural gas per day from the gas-rich Marcellus Shale of West Virginia to southern North Carolina. Its planned route—600 miles of three-and-a-half-foot pipe—would cross the AT 34 times. According to the Cornell Legal Information Institute, “Building the pipeline would require clearing trees in a 125-foot right-of-way through the national forests, blasting mountain ridgelines to flatten the terrain, and digging a ditch to bury the pipeline.”

Dominion and their partner in the project, Duke Energy, said that the AT shouldn’t be a 2,200-mile barrier to progress, and that other pipelines already cross the trail more than 30 times.

Opponents point out that no pipeline has been built since the land became a national park unit in 1968, and that it’s irrational to cut through a swath of geologically fragile, slide-prone, federally protected endangered species habitat for the sake of a poorly planned pipeline. They say ratepayers will be on the hook for a boondoggle of a project that ballooned up to $8 million in cost, and that was unnecessary to begin with—natural gas supply in the area already outweighs demand.

The scope of Cowpasture is narrow for a Supreme Court Case. The AT is a national scenic trail, managed by the Park Service, but in this case it’s on Forest Service land. The issue, as we reported in 2018, comes from a 2017 flip in Forest Service decision making, which aligns with the Trump Administration’s role in the agency. Previously, the Forest Service required Dominion to find alternate pathways; in an about-face, suddenly the agency said the pipeline was fine. The Park Service, and a host of other groups headed by the Cowpasture River Protection Association, a non-profit river protection group, opposed. In his decision, conservative Justice Clarence Thomas tried to make a distinction between the trail and the land it is on. He said the two were different, and that because the Park Service was only responsible for the trail, the Forest Service managed the land and they could make the call on the permit, allowing the process to move forward (and indicating that he has possibly never been on a trail before).

In her dissent, Justice Sonya Sotomayor said it was impossible to separate the the trail from the land, and that the decision was senseless and counter to the way public land should be protected. “Today’s outcome is inconsistent with the language of three statutes, longstanding agency practice, and common sense,” she wrote.

But common sense is increasingly irrelevant to extraction, and the ACP, which is still being pushed through despite financial, logistical, and legal hurdles, is an example of how sense doesn’t counter the clout of the energy industry.

“Dominion has clearly benefited from an administration that’s keen to give energy companies anything they want without regard for what the rule says,” says DJ Gerken, program director of the Southern Environmental Law Center, who argued the case.

The project, which was first proposed in 2014, has been on pause since the end of 2018, due to a backlog of legal challenges to the pipeline and Cowpasture is one of the most contentious—and one that’s representative of the ways the energy industry is eroding the structures we have in place to regulate large-scale infrastructure projects, and make sure they’re sensible and safe.

Opponents point out that no pipeline has been built since the land became a national park unit in 1968, and that it’s irrational to cut through a swath of geologically fragile, slide prone, federally protected endangered species habitat for the sake of a poorly planned pipeline.

Dominion still needs eight permits before it can lay the pipeline, including the one the Cowpasture case refers to (which still has to clear the National Environmental Protection Act and the National Forest Management Act) and a controversial air pollution one. But the Supreme Court’s ruling, which sets case law diminishing protection on public land and gives power to political appointees who run government agencies like the Forest Service, is a big step toward making it easier for this and other pipelines to pass, especially while the Trump administration aggressively rolls back interlocking environmental regulations. On June 4, Trump signed an executive order citing COVID-19 as a reason to expedite infrastructure projects and skip environmental assessments, essentially gutting NEPA, and pushing projects like this along. 

“The most obvious threat about the case is that it tees up the Trump executive order on tossing out environmental reviews under NEPA,” says Cale Jaffe, Director of the University of Virginia Environmental Law and Community Engagement Clinic. “It’s less about the decision, more about what happens next.” Jaffe says that the Cowpasture case is a link in a chain of crumbling regulatory power, and it lets the pipeline move on to the next, newly weakened step.

The whole point of the federal regulatory and permitting system is to calmly analyze projects, to make sure they’re necessary and do the least harm. There’s a reason why we make infrastructure go through so many steps—to keep the public (and public lands) as protected as possible. Jaffe says that right now, in the waning days of Trump’s first term, there’s a top-down rush to push through oil and gas projects like this regardless of necessity or damage.

As in many cases that pit energy against the environment, Dominion’s argument is about jobs and the economy. The company says the ACP will create jobs, and bring lower-cost supplies of natural gas to public utilities in the southeast. But both of those are shortsighted, largely untrue, and negligent of the rules. “Looking at the consequences of your actions on the environment and economy is the basic premise of the law,” Jaffe says.

I lived in West Virginia for a while, in a town where “I heart rafting” bumper stickers were as common as ones that read “I heart coal.” And so I have a small sense of how deeply the energy economy is embedded in Appalachia and how the economic promise of development holds weight, especially now, when the coronavirus has crushed other industries. I know that natural gas is still a piece of our energy pie, but this isn’t the case to exploit it, or to push through an unnecessary pipeline on the back of deregulation.

Aside from the fact that the Atlantic Coast Pipeline would only bring 2,200 permanent jobs to the three-state area, there’s already plenty of available natural gas around, thanks to the two-year-old Transco pipeline. And the economic landscape of natural gas is changing. The International Energy Association is projecting this year will be the steepest decline for natural gas in 70 years, and says it was dropping off even before COVID-19 hit. What was once considered a bridge fuel is now a blockage to the kind of low-carbon energy economy that states are pushing toward. In March, Virginia passed the Clean Economy Act, which mandates that utilities, including Dominion, have to be carbon free by 2045.

The ACP, which heads in the opposite direction, is inane, even before you start thinking about ripping up an iconic, vibrant, protected landscape. Greg Buppert, Gerkan’s colleague at the SELC says the AT “deserves the highest protection the law provides.” That’s where Cowpasture is important, and could set a scary precedent for other pipelines and projects. It’s another erosion of the steps we have in place to protect federal land—one that comes from the judicial branch instead of the executive one.

“You can use the ACP as a laboratory to look at the consequences of all these rollbacks,” Gerkas says. He says that if we can’t protect places we value most highly, like the beloved, heavily used Appalachian Trail, from unnecessary development, how are we going to protect anything less iconic farther down the line?