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Federal government, Atlantic Coast Pipeline, seek US Supreme Court hearing

The federal government and Atlantic Coast Pipeline have asked the U.S. Supreme Court to hear a case in which they say the natural gas project should be allowed to cross the Appalachian Trail.

The U.S. solicitor general and Atlantic Coast Pipeline filed separate petitions for a writ of certiorari, or appeal, to the Supreme Court on Tuesday, asking the court to review the 4th U.S. Circuit Court of Appeals’ December decision, which effectively halted construction of the project.

“We believe the 4th Circuit got this case wrong, and we’re appealing to the U.S. Supreme Court to get it right,” Aaron Ruby, a spokesman for Dominion Energy, the company primarily overseeing the project, said.

In December, the 4th Circuit vacated two key approvals issued by the U.S. Forest Service for the Atlantic Coast Pipeline, saying the Forest Service had violated the National Environmental Policy Act and National Forest Management Act. The court also said the Forest Service lacked the authority, under the Mineral Leasing Act, to grant rights-of-way for the project through the Appalachian Trail.

The 600-mile-long natural gas pipeline would span from Northern West Virginia into North Carolina, crossing 21 miles of the George Washington and Monongahela national forests. At one point, the pipeline also would be buried 600 feet below the Appalachian Trail.

The Forest Service does have the authority to approve the project under the Mineral Leasing Act, because it has authority over federal forestland; the National Park Service oversees the footpath part of the Appalachian Trail, the solicitor general wrote in his cert petition.

In the cert petition, the solicitor general said he was asking the Supreme Court only to review the Forest Service’s authority under the Mineral Leasing Act; the Forest Service could address the other challenges separately.

Following the 4th Circuit’s decision, the federal government and ACP asked for a panel rehearing en banc, meaning the case would be heard before all judges on the 4th Circuit. Those requests were denied.

The Supreme Court receives between 7,000 and 8,000 petitions for a writ of certiorari each term, according to the court’s website. Of those, the court decides to hear oral arguments in about 80.

“The big picture here is Atlantic Coast Pipeline is determined to fight this out in court. It could reroute the pipeline and build it legally in about the same time it would take to litigate this case,” said DJ Gerken, senior attorney at the Southern Environmental Law Center, which represented a coalition of environmental groups that challenged the Forest Service’s approvals. Gerken said the SELC plans to file a brief, too.

In the federal government’s cert petition, the solicitor general makes a case for the private project, arguing that customers in North Carolina and Virginia may end up paying millions in utility costs without the pipeline.

“The Supreme Court takes cases of national importance and this is not one,” Gerken said. “The court’s decision doesn’t block pipelines in the east, it doesn’t call into questions any existing pipelines. It doesn’t even block this pipeline because they have reroute options they know are legal.”

Dominion expects to finish the entire project by late 2021, Ruby said. The project is estimated to cost between $7 billion and $7.5 billion.

Reach Kate Mishkin at

kate.mishkin@wvgazettemail.com, 304-348-4843 or follow

@katemishkin on Twitter.

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