Both sides of the Atlantic Coast Pipeline debate are bracing for another potential trip to court, this time the United States Supreme Court.
In December 2018, the U.S. Fourth Circuit Court of Appeals ruled that the U.S. Forest Service had no legal authority to grant a right-of-way for the ACP to cross United States Forest Service lands and the Appalachian National Scenic Trail. In June, Dominion Energy responded by filing an appeal, asking the Supreme Court to overturn the Fourth Circuit Court’s ruling.
The Southern Environmental Law Center plans to submit an opposition paper, in the hopes that the Supreme Court will decide to not hear Dominion’s appeal. In the meantime Dominion has voluntarily stopped work on the Virginia portion of the pipeline, a proposed $7 billion, 600-mile natural-gas pipeline to be built through West Virginia, Virginia and North Carolina.
Both sides are confident.
“The [Supreme] Court is typically looking for cases involving constitutional issues or conflicts in the lower courts. Those issues aren’t present here. Our first step right now is to respond to petitions from Dominion Energy and the federal government,” Greg Buppert, a lawyer with SELC, said in a phone interview July 23.
The petition from Dominion Energy challenged the Fourth Circuit’s ruling and said, “Indeed, consistent with its handling of other challenges to this pipeline, the Fourth Circuit endorsed nearly all of the environmental groups’ challenges, including their novel theory that the Forest Service cannot grant a right-of-way through what the federal government has always understood to be national forest land.” The petition went on to say the lower court had misread federal statutes that led to this decision and argued this decision will harm the public for years to come.
“It will chill investment, harm millions of energy consumers, and unsettle long-held agency views. This decision plainly warrants this Court’s plenary review,” the petition reads before getting into the background of the case.
The Solicitor General issued a similar petition arguing the United States Forest Service has the authority to grant rights-of-way, including the one for the ACP to cross the 0.1 mile of the Appalachian Trail, saying the lower court got it wrong in December.
David Schwiesow, a board member of Friends of Nelson, said the nonprofit local group against the ACP is backing SELC as it prepares the opposition.
“Friends of Nelson is supporting the Southern Environmental Law Center’s position, no questions. We are hopeful we will be successful and I think we will,” Schwiesow said.
Schwiesow said the U.S. Supreme Court only hears about 150 cases every year and said the likelihood it decides to hear this appeal is low. According to the United States Courts website, the Supreme Court does not have to hear a case, with a few exceptions.
“The Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year,” the website said.
Aaron Ruby, spokesperson for Dominion Energy, is confident for the opposite reason. In an email on July 2, Ruby said the U.S. Supreme Court hears about 70 to 80 % of the appeals that are joined by the Solicitor General. Ruby said the facts are on Dominion Energy’s side, as well as the law and decades of precedent. He said the fact the Solicitor General joined their appeal strengthens its case.
“We believe the Fourth Circuit made the wrong decision in this case, so we’re appealing to the U.S. Supreme Court to get it right. This is a case of national importance, and its impact extends far beyond the Atlantic Coast Pipeline. The energy security of our entire region is at stake,” Ruby said in the email. “Most of our nation’s energy supply is found west of the Appalachian Trail, and the Fourth Circuit’s ruling makes it impossible to transport it to the East Coast. If allowed to stand, the Fourth Circuit’s ruling will place a 2,200-mile barrier between one of America’s largest domestic energy supplies and the millions of Americans who live along the East Coast.”
Ruby went on to say the Fourth Circuit reversed a longstanding precedent, so they are appealing to the U.S. Supreme Court to restore it. According to Ruby, Dominion expects the court to decide whether or not to hear the appeal by the fall. If the court agrees, Ruby said they will make oral arguments early next year and expect a final ruling by summer 2020.
Erin Conway covers Nelson County for The News & Advance. Reach her at (434) 385-5524.