By John McFerrin
On February 24, 2020, the United States Supreme Court heard arguments on a case concerning the Atlantic Coast Pipeline. Now we are left to wait, with nothing to do other than speculate on the possible outcome.
The case itself focuses on the Appalachian Trail. The Trail itself runs from Maine to Georgia. On its way, it passes through the George Washington National Forest. There it is in the proposed pathway of the Atlantic Coast Pipeline. If built, the Pipeline would have to cross the Trail somewhere.
Everybody agrees that the Pipeline would have to get approval to cross the Trail. This case is about who has authority to give that permission. The United States Forest Service, which administers the George Washington National Forest, thinks that it has authority to grant that permission. The United States Court of Appeals for the Fourth Circuit disagrees. It ruled that the Forest Service did not have that authority. It ruled that the Trail is under the control of the National Park Service. The Forest Service has no authority to give permission to cross. Now the United States Supreme Court is reviewing that decision.
In you want to learn about the actual legal arguments, read the story in the November, 2019, issue of The Highlands Voice. Now that we have had the hearing before the Supreme Court, we have not just the arguments but we have things the Supreme Court Justices said that were (or were not) hints on how the Court might rule.
One way to look at this case is that it is just a case of statutory interpretation: did Congress give the Forest Service the authority to give permission to cross the Trail? It’s just a matter of looking at the words on the paper and figuring out how they apply here.
As often happens, Dominion brought up what is often called the “parade of the horribles.” In this type of argument, one side lists the horrible things that would result from a certain decision. The “horribles” can range from people would be inconvenienced to the end of the world as we know it.
In this case, Dominion brought up the horribles that would happen if pipelines could not cross trails. Would the Appalachian Trail set up an impenetrable barrier, stretching from Maine to Georgia, that would block all pipelines, thwart energy development, ruin our national economy, prevent Dominion from making money, etc.?
After the argument, legal observers (aka entrail readers) inferred from the questioning and the comments of some of the Justices that the Court was accepting Dominion’s argument that upholding the ruling of the Court of Appeals for the Fourth Circuit would have serious, intolerable consequences.
A decision is expected in late spring or summer.
Some of the Justices also seemed to be buying a related argument: had Congress intended to do something as dramatic as set up the Appalachian Trail as a barrier to all pipelines, it should have been more explicit about. Instead of, as here, implying the Park Service’s authority in two different statutes, Congress should have simply said what it was doing.
Both sides professed confidence in the outcome. From Dominion, “We’re pleased with how oral arguments went today. We believe we’ve made a strong case, and we look forward to the Supreme Court’s ruling in the coming months.” The lawyer for the citizens living along the proposed route just said that the law was “clear” that the citizens should prevail. It is impossible to tell if either of these is a true prediction and who is just whistling past the graveyard.