Dominion Energy and the US Department of Justice asked the Supreme Court to overturn a decision holding up the Atlantic Coast Pipeline, as environmental groups challenged assertions being used to make that pitch.
The 600-mile, 1.5 Bcf/d natural gas project, intended to move Appalachian gas to Mid-Atlanticmarkets, has hit a series of legal setbacks, including a 4th USCircuit Court of Appeals decision that struck federal authorizations allowing the pipelineto cross the Appalachian National Scenic Trail and national forests.
The pipeline developers and DOJ on Tuesday filed separate challenges to part of that decision that found the US Forest Service lacked authority under the Mineral Leasing Act to grant the right-of-way to cross the trail because the land is under exclusive authority of the National Park Service.
ACP in its petition for writ of certiorari June 25 argued that the National Trails System Act expressly preserves authority of other federal agencies over lands that a national trail traverses. It said the decision misconstrued both statutes on which the court relied.
DEBATE OVER CONSEQUENCES
If left to stand, the decision would have "dramatic consequences," converting the Appalachian Trail into a 2,200-mile barrier to critical infrastructure, ACP argued.
Southern Environmental Law Center has called that barrier argument hyperbole, and in a June 24 letter to the USFS offered an analysis it said shows why.
"We have examined every existing crossing of the [trail] by an oil or gas pipeline and confirmed that the Forest Service has never before granted a new right-of-way for an oil or gas pipeline to cross the [trail] where it traverses a national forest, until it did for the Atlantic Coast and Mountain Valley pipelines," said the letter from SELC attorney DJ Gerkin. Existing crossings for pipelines are unaffected by the decision, he added.
The decision also does not present a barrier for newer pipelines, he added, because some newer pipelines cross on state or private lands and others can cross federal lands by co-locating with existing rights of way.
Reasonable alternatives off national forest land are available for the ACP and have not yet been fully evaluated as possible reroutes, the SELC letter argued.
DOJ VIEW
DOJ, in its June 25 petition, agreed with ACP that the 4th Circuit ruling "threatens to hamper the development of energy infrastructure in the Eastern US, including the construction and operation" of ACP. The ruling also cast doubt on the "previously unquestioned" USFS authority to allow land use for power lines, communications sites, water facilities and roads crossing the trail within national forests, it said.
The 4th Circuit's legal error, according to DOJ, was to misread the National Trail System Act to find that long sections of the trail that are part of the National Park System cannot be subject to rights-of-way granted under the Mineral Leasing Act, it said. The decision would upend the longstanding allocation of responsibilities between NPS and USFS, it added.
There is no guarantee the court will agree to take up the case as part of its busy schedule.
The project's 1.5 Bcf/d of incremental capacity is underpinned by long-term contracts with regional end-users affiliated with the developer. The Mid-Atlantic relies on gas from only a few pipeline systems capable of delivering there. Transcontinental Gas Pipe Line, the primary system bringing gas into the area, often runs at- or near-capacity, and smaller supply sources like Dominion Energy Transmission and Columbia Gas Transmission tend to run close to full.
The combined 3.5 Bcf/d of capacity from ACP and the neighboring MVP project is far greater than projected demand-growth estimates in the region, potentially reducing price spikes during peak demand days, according to S&P Global Platts analytics.
