As GAIN Gavel has been keen to acknowledge, courts are increasingly becoming a venue for anti – infrastructure types to air out their grievances in hopes of a favorable judge and subsequent ruling that will stall or halt projects altogether. The Atlantic Coast pipeline was subject to litigation from its earliest proposals and became one of the first cases to reach the Supreme Court.
In a 7 – 2 decision the Supreme Court ruled that the Appalachian Trail is not a barrier to natural gas pipelines despite arguments from plaintiffs contending that because the trail is administered by the National Park Service it counts as Park System lands, meaning no federal agency would have the authority to permit the pipeline crossing the Appalachian Trail. This case made its way to the high court after an appellate decision against the pipeline.
Justice Clarence Thomas delivered the Court’s opinion and as the Wall Street Journal Editorial Board noted “made short work of the argument in U.S. Forest Service v. Cowpasture River Preservation Association. ‘If a rancher granted a neighbor an easement across his land for a horse trail,’ he wrote, nobody would think ‘that the rancher had ceded his own right to use his land in other ways, including by running a water line underneath the trail.’ The same principle applies when the Forest Service grants a ‘right-of-way’ under the Trails Act of 1968.”
Justice Thomas also added that “Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land,” this – of course – is a correct analysis. The many layers of jurisdictions and agency roles mean that those opposed to a project can find opportunities for litigation aplenty. More than anything this speaks to the need for regulatory reform.
The Atlantic Coast pipeline is not out of the woods yet though. A number of permits and reviews are still outstanding, including a draft supplemental environment impact statement that the Forest Service is expected to issue alongside some permits. Other permits are still under review with the Fish and Wildlife Service; these could also potentially be litigated against to further delay the pipeline.
As we have written before, the litigious environment surrounding energy infrastructure projects is a detriment to the success of the industry and many benefits it affords Americans nationwide. The Supreme Court’s decision is a small victory for energy infrastructure but the trend of projects having to be settled in court remains a negative.