Client Alerts
October 07, 2019

Pipeline Crafts Urge U.S. Supreme Court to Reverse Atlantic Coast Pipeline Decision and to Allow a More Reliable Permitting Process

Stites & Harbison Client Alert, October 7, 2019

On October 4, 2019, the U.S. Supreme Court agreed to review the 4th Circuit’s rejection of the National Forest Service’s permit authorizing the Atlantic Coast Pipeline (ACP) to cross the Appalachian Trail within the George Washington National Forest.

Although the Mineral Leasing Act (MLA) permits the National Forest Service, and other agencies, the authority to grant right-of-ways across federal lands, the 4th Circuit concluded that the Appalachian Trail, which is managed by the National Park Service (NPS), was an exempted National Park. Thus, the National Forest Service’s permit, granting a right-of-way, was determined to be invalid. The decision, if upheld, would force developers to receive Congressional approval, among other approvals, before the ACP can proceed with the current route.

The Pipe Line Contractors Association and Pipeline Crafts,1 as Amici Curiae, requested the U.S. Supreme Court to review and reverse the 4th Circuit’s decision. The Pipeline Crafts argue that a basic understanding of the plan for constructing the ACP demonstrates that the Court applied an overbroad interpretation of the applicable regulatory framework and the role of the NPS. The plan calls for the 600 mile pipeline to cross the Appalachian Trail at a depth of 700 feet. The .1 mile crossing would be installed using Horizontal Directional Drilling from an entry point 1400 feet away from the Trail to an exit point 3400 feet away on the opposite side of the Trail. Therefore, the construction of the ACP would have no impact on the operation of the Appalachian Trail and the National Forest Service’s permit should remain.

In addition to asserting that the appellate court failed to properly apply the MLA, the Pipeline Crafts detail the impacts of inconsistent and delayed permitting decisions across the pipeline industry. Notably, the Pipeline Crafts estimate that the ACP is anticipated to create 17,240 construction jobs across multiple states. Over the course of the two year construction schedule, these workers are slated to work more than 30 million hours, and generate $1.8 billion in wages and fringe benefit contributions. Because of the delays in permitting, workers must replace the two years of consistent work that was initially expected to start in December 2018. It is further noted that even where those individuals are able to find replacement work, it oftentimes pays inferior wages and benefits. Uncertainty in the permitting process also prevents unions from accepting and training as many entry-level members as they would otherwise.

For these reasons, the Pipeline Crafts argue that an inconsistent permitting process is devastating. They say that if the decision is allowed to stand, the unreliable permitting process could “compromise an entire industry including the many thousands of skilled careers it supports.”2

The U.S. Supreme Court cases are U.S. Forest Service et al. v. Cowpasture River Preservation Association et al., case number 18-1584, and Atlantic Coast Pipline LLC v. Cowpasture River Preservation Association et al., case number 18-1587.

1UA, IUOE, LIUNA, and Teamsters.
2Brief of the United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; International Union of Operating Engineers; Laborers’ International Union of North America; International Brotherhood of Teamsters; and Pipe Line Contractors Association as Amici Curiae in support of Petitioners at 16.

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