Duncan on U.S. Supreme Court Decision to Uphold Key Permit for Atlantic Coast Pipeline

June 15, 2020
Press Release

Washington, D.C. – Congressman Jeff Duncan (SC-03) released the following statement on the U.S. Supreme Court’s decision to reverse the Fourth Circuit Court of Appeals’ ruling to vacate the U.S. Forest Service’s Atlantic Coast Pipeline permit:

“I’m pleased to hear the U.S. Supreme Court ultimately reversed the Fourth Circuit Court of Appeals’ ruling to vacate the U.S. Forest Service’s authority to grant rights-of-way in a 7-2 decision. It was clearly Congress’ intent for the U.S. Forest Service to have authority over rights-of-way in the national forests when they bisect the Appalachian Trail. The Fourth Circuit Court of Appeals’ erroneous decision abruptly halted the construction of the Atlantic Coast Pipeline, a domestic natural gas pipeline, which hindered our ability to further domestic energy transportation in the United States.

“I’ve long supported domestic energy production and transportation and filed an amicus brief to the U.S. Supreme Court in support of the construction of the Atlantic Coast Pipeline in December 2019. Energy production and transportation are critical to ensuring safe, reliable, and affordable energy to consumers around the country. I applaud the U.S. Supreme Court’s ruling today and look forward to the advancement of the Atlantic Coast Pipeline.”

Read the U.S. Supreme Court’s Opinion HERE.

Background:

Duke Energy, Dominion Energy, and Southern Company were constructing a $7.5 billion, 600-mile natural gas pipeline, the Atlantic Coast Pipeline (ACP), from West Virginia to North Carolina until the project was halted in December of 2018. Despite clearing numerous environmental reviews, environmental activist groups challenged every permit. Specifically, these lawsuits included challenges around two rights-of-way at the same location needed to go 700 feet below the Appalachian Trail and Blue Ridge Parkway. The Obama Administration started this approval process, and it was completed by the Trump Administration.

The Cowpasture River Preservation Association led the environmental groups challenging the permit. In December 2018, a three-judge panel on the Fourth Circuit Court of Appeals (one President Clinton appointee and two President Obama appointees) vacated the U.S. Forest Service right-of-way, citing the Lorax in their decisions, “someone needs to speak for the trees because the trees can’t speak for themselves.”

Congressman Duncan filed an amicus brief to the U.S. Supreme Court in December 2019 to explain that Congress intended the U.S. Forest Service to have authority to grant rights-of-way over the Appalachian Trail when the trail crosses a national forest. Congress granted heads of agencies with jurisdiction over federal lands the authority to grant rights-of-way for pipelines over those lands (30 U.S.C. § 185(a)). The ACP was set to cross over the Appalachian Trial in the George Washington National Forest. There has been no legislation transferring the jurisdiction of the federal lands over which the trail passed. Therefore, the U.S. Forest Service, which administers the George Washington National Forest, is the appropriate agency to grant a right-of-way for the ACP.

The brief further expressed the sense that Congress supports domestic energy production, including pipelines like the ACP. The Fourth Circuit Court of Appeals’ decision was a prime example of judicial activism and unsound environmental extremists killing energy products. Their decision created an energy reliability issue for the entire region, the potential for courts to stop pipeline operations, and legal uncertainty for the construction of new pipelines moving forward. The ACP would carry as much as 1.5 billion cubic feet of natural gas per day from the Marcellus shale in West Virginia to customers, saving them $377 million per year. Fifty-six pipelines already cross the trail.

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