2020: A Year of Pipeline Court Fights, with One Lawsuit Headed to the Supreme Court
Several cases challenge natural gas pipeline routes, including across the Appalachian Trail, and question companies’ right to take land they don’t own.
Phil McKenna reports for Inside Climate News
After years of mounting opposition to the increasing build-out of oil and gas infrastructure, 2020 is shaping up to be the year that pipeline opponents get their day in court.
One case headed to the U.S. Supreme Court takes a closer look at whether parts of the Appalachian Trail are off-limits to fossil fuel infrastructure and may determine the fate of two multi-billion-dollar pipelines. A defeat there, the industry argues, would severely limit its ability to get natural gas from the Marcellus shale to East Coast cities and export terminals. Another case weighs state sovereignty against pipeline interests and could have implications nationwide.
Meanwhile, a question of potentially greater significance looms: Can pipeline companies continue to justify taking private land as the public benefits of fossil fuel pipelines are increasingly questioned and the risks they pose to the environment and climate increase?
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The rise of hydraulic fracturing, or fracking, launched a natural gas boom that has fueled a rush of pipeline construction in recent years, with pipeline companies spending an average of $10 billion per year on expanding their pipeline network, according to the U.S. Department of Energy. That rush has racked up environmental violations in several states, and it has triggered a pushback by states, environmental groups, and landowners.
Even in oil- and gas-rich Texas, where fossil fuel interests dominate state politics, landowners are pushing back on pipeline companies’ use of eminent domain.
Crossing the Appalachian Trail
In the case headed to the U.S. Supreme Court, the fossil fuel industry argues that its very ability to ship natural gas from the sprawling Marcellus and Utica shale basins to the East Coast is at risk.
The Supreme Court is expected to hear oral arguments on Feb. 24 related to a key permit for the Atlantic Coast Pipeline LLC’s proposed $7.5 billion natural gas pipeline from West Virginia to eastern portions of Virginia and North Carolina. It would cross the Appalachian National Scenic Trail, and that’s where the pipeline has run into trouble.
Justices will consider whether the U.S. Forest Service has the authority to grant permits for pipelines that cross the iconic backcountry footpath, which runs from Georgia to Maine and is part of the National Park System. Attorneys representing the Trump administration are also a part of the suit, arguing that the Forest Service does have jurisdiction to grant permits across the trail. In a brief filed Dec. 2, federal attorneys added that the pipeline would lie “more than 600 feet below” the surface of the Trail and would be constructed using a “horizontal directional drilling technique” with entry and exit points on private lands not be visible from the Trail.
A federal appeals court invalidated the Forest Service’s permit for the Atlantic Coast pipeline in 2018, saying the agency lacked the authority to approve a right-of-way across the trail. Industry and government lawyers argue the appeals court was wrong.
“Simply put, there is no basis in any federal statute to conclude that Congress intended to convert the Appalachian Trail into a 2,200-mile barrier separating critical natural resources from the eastern seaboard” attorneys for Atlantic Coast Pipeline, LLC, told the Supreme Court in a Dec. 2 brief.
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