Week Ending February 28, 2020

Parsing Supreme Court Questions on ACP, Several Foresee Favorable Ruling for Pipeline

This Article Appears as Published in Foster Report No 3288
Parsing Supreme Court Questions on ACP, Several Foresee Favorable Ruling for Pipeline

Supreme Court justices posed robust questions to attorneys on both sides of the dispute over Atlantic Coast Pipeline crossing the Appalachian Trail (AT), with several observers concluding that the February 24 oral argument shaped up in favor of ACP gaining a high court reversal of an appeals court decision.

At least five of the justices appeared to be skeptical of the legal argument advocated by environmental groups and supported by the U.S. Court of Appeals for the Fourth Circuit that the National Trails System Act designated the AT as a component of the National Park Service and outside of the authority of the U.S. Forest Service. Justices Stephen Breyer, Samuel Alito, and to a lesser extent Chief Justice John Roberts appeared willing to overturn the Fourth Circuit in a limited fashion to allow the distinction of ACP passing beneath the AT and not interfering with the land of the trail.

Justices Neil Gorsuch and Brett Kavanaugh asked more limited questions along those lines, but likely would favor the government’s position that supports ACP, analysts said. Gary Kruse of LawIQ and Christine Tezak of ClearView Energy Partners reached similar suppositions that the questioning looked to go against the environmental groups that included the Southern Environmental Law Center (SELC), Sierra Club, Wild Virginia, and Cowpasture River Preservation Association.

Kruse and Tezak also both noted that the Supreme Court is only one stop on ACP’s legal route to success, with additional rulings from the Fourth Circuit and the U.S. Court of Appeals for the D.C. Circuit in the offing. The Fourth Circuit has ruled against ACP on two other legal points, involving a Virginia state permit for a compressor station in Buckingham County and vacating the biological opinion and incidental take statement from the U.S. Fish and Wildlife Service.

Once the Supreme Court makes a decision on the AT crossing issue – assuming it does not rule that the petition for certiorari was granted prematurely, which Justice Ruth Bader Ginsburg hinted at in the first questions posed to attorney Anthony Yang of the U.S. Solicitor General’s office – an appeal of FERC’s Natural Gas Act certificate awarded to ACP could resume at the D.C. Circuit. The D.C. Circuit put that appeal on hold until the Supreme Court issue is resolved, Kruse noted.

Predicting how a court will rule based on oral argument is far from certain, attorneys have pointed out.

At a press conference immediately after the oral argument, SELC Senior Attorney DJ Gerken, who argued cases against pipelines at the Fourth Circuit, said he felt that attorney Michael Kellogg, who represented environmental groups during oral argument, answered the justices’ questions well.

The more probing questions came from Alito, Breyer, and Roberts about upholding the Fourth Circuit on broad legal grounds would create a federal barrier to infrastructure crossing the AT or other federal trail land. Justice Sonia Sotomayor also asked Kellogg about the “parade of horribles” that would result if the Fourth Circuit ruling is allowed to stand.

Federal trails pass through cities and all kinds of land masses, and putting them all under the control of the National Park Service would have “enormous consequences,” said Kavanaugh. “Do you have more than a ‘gotcha’ argument?” asked Alito.

Kellogg told the justices that pipelines can cross the AT or other federal trails on private or state lands, and have done that several times in the past several years. It is the federal land crossing of the AT in a national forest, which was the path chosen by pipeline developers, which caused the problem and resulted in the ruling from the Fourth Circuit, Kellogg said.

Sotomayor also asked probing questions of Yang and Paul Clement, who represented ACP, as did Ginsburg and Justice Elena Kagan during oral argument (U.S. Forest Service v. Cowpasture River Association, Nos. 18-1584, 18-1587).

The questioning led Tezak to count at least six justices interpreting the statutes at issue in a manner that would favor ACP and the government’s case. The questions from some of the judges seem to allow the high court to make a distinction under the Mineral Leasing Act (MLA) that approves the siting of the pipeline under the AT, as planned by ACP. “We are not sure exactly how the Court might articulate that stance,” she said.

Kruse also counted six possible votes in favor of ACP after attending the oral argument. He considered Ginsburg and Kagan as supporting the Fourth Circuit ruling. Kruse viewed Sotomayor and Justice Clarence Thomas as “maybe’s,” but pointed to Sotomayor asking questions of both sides that made it hard to predict how she would vote in the case.

In a statement after oral argument, ACP owners said they believe attorneys made a strong case before the Supreme Court and are hopeful that the Court will overturn the Fourth Circuit. A positive decision for ACP could enable construction to resume, assuming other legal issues are resolved by the summer, according to the statement said. “We remain confident the law and the facts are on our side,” the companies said.

ACP is owned by Dominion Energy and Duke Energy, now that Dominion is buying the ownership interest of Southern Company Gas, which was announced in February. Currently estimated to cost about $8 billion, it is a 600-mile pipeline designed to move 1.5 Bcf/d from West Virginia to parts of Virginia and North Carolina. About 300 miles of the ACP and related Supply Header project is in Virginia.

ACP’s planned crossing of the AT was rejected by the Fourth Circuit based on the court’s reading of the MLA. A few justices questioned the government and ACP attorneys on the distinction between “land” and “trail” that would have the Court overturn the Fourth Circuit ruling. It’s strange to read that the AT is not land, Sotomayor told Yang, because nobody makes such a distinction in real life. Yang and Clement said the statutory context of the laws in the case clearly make the distinction. Otherwise there are “untenable consequences” that would prohibit infrastructure crossing federal land on the national trail system in the U.S., said Clement, a former Solicitor General.

When Breyer asked about trying to picture the pipeline crossing under the AT in three dimensions, Clement joked that the trouble with legal briefs is they are limited to two dimensions.

The justices posed multiple questions to attorneys on both sides of the argument, with about 18 being thrown at Clement and Yang and a few more asked of Kellogg.

As Kruse and Tezak, and media outlets pointed out, several justices appeared skeptical of the outcome for upholding the Fourth Circuit, which would create a federal barrier to infrastructure crossing the AT or other federal trail land.

The path of the ACP to cross the AT involves horizontal directional drilling under the trail in the George Washington National Forest to have no trail disturbance during construction. The entry point and exit point of the horizontal directional drill are on private land, attorneys noted. That shows that the crossing of federal land is about 600 feet below the trail itself, which Breyer and Alito appeared to take as allowing an “easy out” for the project to go forward based on this distinction.

Alito said a pipeline crossing the trail 600 feet below the surface does not seem like a trail, so the Court could allow that and avoid trying to distinguish between trail and land.

“You could do that, Justice Alito, and I suppose my clients would be perfectly happy to win this case on that ground,” Clement joked. But he said there is a critical difference between administrative authority over the trail on the surface and administrative authority over the lands it crosses.

The National Park Service has nine or 10 federal employees overseeing the AT from Harpers Ferry, West Virginia, and if a tree falls across the trail, they don’t deal with it because the Forest Service has that authority and ability to do so, Clement said. He provided another example to the justices questioning that reasoning, noted that Forest Service land is used for multiple purposes, while National Park System is based on conservation and preservation. Maple trees in New Hampshire have sap lines that run across the surface of the AT with the permission of the Forest Service. If the high court were to construe all federal land of the AT being under the jurisdiction of the National Park Service, it would jeopardize such operations and others, Clement said.

At one point in the discussion about distinguishing the trail from the land underneath it, Roberts said “there seems to be a debate on some metaphysical level about whether you can have a trail, whether you can have land under it, or interests in land that are different. I just — it doesn’t strike me as that unusual a concept that there are property rights that are distinct from rights in the land.”

Eight of the nine justices had questions at different points during the hour-long argument. Thomas, who very rarely comments during oral argument, is the only one of the nine who did not ask a question.

Ginsburg early in the session noted that the Fourth Circuit has several rulings against ACP, and that the AT crossing issue before the Supreme Court could be moot if other matters are not overturned. She appeared to present the opportunity for the Supreme Court to not rule on the case by deciding that the petition for certiorari was improvidently granted, though Yang tried to dissuade her of that notion. It is important for the high court to rule on the case because if a pipeline right-of-way cannot cross 600 feet below the AT without disturbing the land – because the horizontal directional drilling would be done on private land – “then the whole enterprise is done. We’re done. They have to start over,” Yang said.

The questions that followed during oral argument seem to indicate that the Court will rule on the questions, which are centered around the MLA, the National Trails System Act and whether the National Park Service or the U.S. Forest Service is the proper authority to issue a right-of-way for a pipeline to cross the AT.

Petitioners ACP and the federal government claim that if the Fourth Circuit’s decision is allowed to stand, it would make the AT a 2,200-mile barrier to prevent oil and natural gas pipelines from crossing the trail on federal land, which covers about half the trail’s length.

The Fourth Circuit acted on petitions from various environmental groups that challenged the Forest Service permit for ACP under the National Trails System Act and the MLA, ruling that the MLA prevents the agency from granting a right-of-way across the AT.

If the Court does not correct the situation, resource-rich areas west of the AT would be separated from consumers along the East Coast, since the trail stretches from Maine to Georgia, the petitioners argued. The Forest Service has long taken the position that it has that authority and has granted such rights-of-way for numerous projects on Forest Service land traversed by the trail, ACP and the Solicitor General said.

Under the clear statutory language, the two agencies have long agreed that the National Park Service is responsible for administering the AT as a footpath, while the Forest Service retains jurisdiction over the lands within national forests crossed by the trail, Clement and Yang told the Court.

The Fourth Circuit erred in holding that the land under the trail is part of the National Park System that is ineligible for the granting of a right-of-way for ACP under the MLA, they argued in their briefs filed with the Supreme Court.

The Fourth Circuit has ruled against ACP in other cases, which remain pending and present challenges to ACP owners Dominion and Duke.

Construction of ACP has been halted since late 2018 while the owners deal with several legal setbacks, including the Fourth Circuit vacating the U.S. Fish and Wildlife Service (FWS) approval of the project. That decision marked the second time the Fourth Circuit vacated and remanded the biological opinion and incidental take statement from FWS.

The Fourth Circuit also vacated the Virginia Air Pollution Control Board’s award of a permit to build a compressor station in Buckingham County, remanding the case for the Board to address the health impacts of the compressor and its suitability for the area (Friends of Buckingham v. State Air Pollution Control Board, No. 19-1152).

At the press conference after the oral argument, pipeline challengers spoke about the “long road ahead” for ACP and said the need for the pipeline is seriously in doubt. Dominion chose a poor route when better alternatives were available and “slapdash decisionmaking” by multiple agencies is putting the project in jeopardy, said Gerken.

“ACP developers should be playing by the rules, but instead they used political pressure to push a risky project through that, in the end, would harm our public lands and stick utility customers with the bill,” Gerken said.

By Tom Tiernan ttiernan@fosterreport.com

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