ACP is a private for-profit project pretending to be in the public interest

From an Article by Sarah Vogelsong, Virginia Mercury, February 24, 2020

WASHINGTON, D.C. — Where does a trail end and the land beneath it begin?

That’s just one of the thorny questions the Supreme Court grappled with Monday morning during a one-hour hearing on a U.S. Forest Service permit for the controversial Atlantic Coast Pipeline that has been hotly anticipated by both the gas and oil industry supporting the pipeline and the environmentalists opposing the project.

Since its inception, the Atlantic Coast Pipeline, a 600-mile conduit that would bring natural gas from West Virginia, through Virginia and into North Carolina, has been challenged on multiple fronts. The project, 53 percent of which is owned by Dominion Energy, currently has eight outstanding permits that have been revoked as a result of legal resistance.

The issue before the U.S. Supreme Court Monday concerned a permit granted by the U.S. Forest Service giving the pipeline the right-of-way to cross federal lands beneath the Appalachian Trail.

A December 2018 decision by the U.S. Court of Appeals for the 4th Circuit stripped the pipeline of that permit on the grounds that the Forest Service had acted “arbitrarily and capriciously” and didn’t have the authority to grant rights-of-way for pipelines to cross federal lands under the Mineral Leasing Act.

It was the latter determination that the Supreme Court took up Monday in a narrow, complicated case that pushed environmental concerns to the back-burner to focus on exactly what authority Congress has given to what agency to manage federal lands in the National Park System.

The Mineral Leasing Act says that “rights-of-way through any federal lands may be granted by the secretary of the interior or appropriate agency head for pipeline purposes,” but defines federal lands as “all lands owned by the United States except lands in the National Park System.”

Whether the Appalachian Trail is just a trail that runs over the surface of the land or includes all the land beneath it — “down to the center of the earth,” as Justice Stephen Breyer put it — was a point of contention during arguments.

“The central flaw in the court’s logic lies in the fact that the Appalachian Trail is a ‘trail,’ not ‘land,’” the federal government’s brief argued. “Congress’s charge to the secretary of the interior to provide ‘overall administration of a trail’ does not transfer any administrative jurisdiction over the federal land that the trail traverses. Those lands remain under the administrative jurisdiction of their relevant federal land-management agencies. As such, National Forest lands crossed by the Appalachian Trail remain under the jurisdiction of the Forest Service.”

Several of the court’s more liberal-leaning justices, including Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, appeared skeptical of that stance. “You’re saying that the trail is distinct from the trail,” said Justice Kagan early in the hearing. “Nobody makes that distinction in real life.”

But Paul Clement, an attorney for the Atlantic Coast Pipeline, argued that “multiple provisions” of the National Trails System Act draw a distinction between the two, and that conflating them would have “untenable consequences,” including the conversion of the Appalachian Trail into a 2,200-mile barrier to all pipeline development that would deprive eastern states of natural gas.

That argument seemed to strike a chord with several justices, including Chief Justice John Roberts and Justice Brett Kavanaugh, who both questioned Michael Kellogg, the attorney representing the consortium of five Virginia conservation groups opposing the Forest Service permit, about the potential outcome of creating what Roberts called “an impermeable barrier” to gas transportation.

Kellogg, however, contended that argument was misleading, because the Mineral Leasing Act only applies to federal lands and does not prohibit the granting of rights-of-way for pipelines beneath the trail on state, local and private lands. “Congress drew a bright line,” he said.

About 50 pipelines currently cross the Appalachian Trail, either on state, local or private land, or on federal lands under rights-of-way established prior to the passage of the Mineral Leasing Act.

Greg Buppert, an attorney for the Southern Environmental Law Center, a law firm that has been heavily involved in fighting both the Atlantic Coast Pipeline and the Mountain Valley Pipeline, said after the hearing that it was the “unprecedented” nature of the request for a right-of-way to construct a pipeline across federal lands that had brought the case to the Supreme Court.

The statutes, he said, “make it clear that this part of the Appalachian Trail gets its highest protections.” A decision in the case is not expected until late spring.

PHOTO in ARTICLE: Greg Buppert of the Southern Environmental Law Center offers comments about the hearing on the Atlantic Coast Pipeline, on the steps of the U.S. Supreme Court in Washington, D.C. Feb. 24, 2020.

The Trail along the C & O Canal connects Washington DC to Pittsburgh, PA

From an Article by Mike Lewis, Hagerstown Herald-Mail, September 26, 2019

HANCOCK — The National Park Service has signed off on a study that says extending a natural gas pipeline under the Chesapeake and Ohio Canal National Historical Park “will have no significant effects on the environment.”

But the project is still on hold after a federal court in August upheld a denial of a right of way permit under the Western Maryland Rail Trail by the Maryland Board of Public Works.

A pipeline opponent said Thursday that foes are disappointed with the National Park Service action. But he said the focus of their effort has been at the state level recently.

Meanwhile, a spokesman for Columbia Gas Transmission LLC said the company is looking to move forward and had filed a notice of appeal in the Western Maryland Rail Trail case.

The park service announced Thursday that the agency’s acting National Capital Area director had signed a Finding of No Significant Impact for the right of way permit request from Columbia Gas Transmission LLC on Sept. 23, according to a park service news release.

The document describes why the proposed pipeline path “will have no significant effects on the environment, provides the rationale for the decision and outlines conservation measures that the NPS will take to avoid, minimize and mitigate impacts,” according to the release, noting the FONSI is on the park service’s website.

Columbia Gas Transmission still needs a right of way permit from the park service to construct the pipeline under NPS land. The park service said it will issue that permit once the gas company completes an appraisal of the property that is approved by the Department of the Interior’s Appraisal and Valuation Services Office, according to the release.

The right of way permit would allow the gas company to put 553 feet of 8-inch-diameter natural gas transmission pipe under the canal towpath. The pipeline would be between 116 and 148 feet below the surface and be drilled horizontally near Hancock.

The decision to OK the permit came after an environmental assessment by the Federal Energy Regulatory Commission, according to the release. The study was required after the gas company applied for a Certificate of Public Convenience and Necessity, and for authorization under a section of the Natural Gas Act.

The ruling only impacts park service land. “No other aspects of the overall proposal, except the portion of the pipe crossing under Chesapeake and Ohio Canal National Historical Park, are under NPS jurisdiction,” the release states.

Columbia Gas Transmission, a subsidiary of TC Energy, has proposed running the pipeline approximately 3.37 miles from existing facilities in Pennsylvania to a new Mountaineer Gas Co. pipeline in West Virginia. The pipeline would run through Fulton County, Pa., Washington County, and Morgan County, W.Va.

Proponents have said the new pipeline is critical to economic development in West Virginia’s Eastern Panhandle.

Opponents have said the pipeline, which would also burrow under the Potomac River, would threaten the environment and drinking water while bringing little benefit to the state.

The pipeline has been the subject of public meetings and debates for more than three years. The project received permits from the Federal Energy Regulatory Commission, the Maryland Department of the Environment and the Maryland Department of Natural Resources. But protests against it continued in the Tri-State region and elsewhere in Maryland.

In court documents, Columbia Gas Transmission stated it has negotiated “the voluntary acquisition of easements” for 18 of the 22 tracts in the pipeline’s path. But it still needs easements to go under the Western Maryland Rail Trail and three parcels owned by the National Park Service. Those parcels are part of the C&O Canal park.

According to the paperwork, Columbia Gas offered the Maryland Department of Natural Resources $5,000 for the easement, which is more than the amount due as determined by an appraisal.

But in January, the state Board of Public Works denied Columbia’s easement application. Gov. Larry Hogan, Comptroller Peter Franchot and Treasurer Nancy Kopp voted unanimously.

At the time, Franchot cited “the compelling testimony of people who came down and said that they don’t think this is the right thing for the state of Maryland to do — that we weren’t gonna subject our state to all the environmental problems of this pipeline and get none of the economic benefits.”

In May, Columbia Gas Transmission sued. It asked the U.S. District Court in Baltimore to condemn about 0.12 acres for a 50-foot-wide and 102-foot-long easement, so the company can tunnel the 8-inch pipeline under the rail trail. Using a directional drilling method, the company would burrow the pipeline about 175 feet under the trail and about 114 feet under the river.

Columbia Gas argued that “time is of the essence” to meet the FERC deadline of July 19, 2020, and its “contractually committed in-service date” of Nov. 1, 2020.

But the state argued that the 11th amendment to the U.S. Constitution prevents a federal court from ordering the state to grant the easement.

Columbia Gas Transmission on Sept. 20 filed a notice of appeal of the U.S. District Court decision with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., TC Energy spokesman Tim Wright said in an email Thursday afternoon. “This project is important to help ensure that everyone in the region has access to a reliable and affordable source of energy,” Wright wrote. “For that reason, we continue to look to move it forward.”

Upper Potomac Riverkeeper Brent Walls, one of the pipeline opponents, said the park service decision is of secondary importance “since we have an active legal case.”

“We would have like to have seen” the park service follow the state’s action, he said.