A Virginia case is once again headed for the U.S. Supreme Court as opponents of the Atlantic Coast Pipeline try to prevent construction of that 600-mile project from West Virginia to North Carolina.
As it passes through the state of Virginia, the Atlantic Coast Pipeline is supposed to cross the Appalachian Trail – a 2,200 mile footpath from Georgia to Maine.
"The trail runs through The George Washington and Jefferson National Forest. Those forests are managed by the forest service," says Cale Jaffe, a professor of law at the University of Virginia and a consultant to the Southern Environmental Law Center which is leading a fight against the pipeline on behalf of seven groups.
The National Forest Service approved a permit for construction, but opponents argued that agency had no right to sign off.
"The Appalachian Trail is actually a feature of the National Park System," Jaffe explains. "It’s managed – administered by the park service."
And drilling or digging in national parks is forbidden. That’s what the Fourth Circuit Court of Appeals in Richmond had to say, but Dominion and Duke – builders of the pipeline – hope for a different decision from the Supreme Court. Cale Jaffe says you might expect conservative justices to rule in favor of utilities – but you might be wrong.
"Courts, especially conservative courts, pride themselves on interpreting a law as it is, not the law as we wish it might be," he says.
The case could be heard this spring with a ruling in June, and regardless of what the court decides, other legal issues and challenges remain.
Editor's note: After this story aired, Jafee sent the following clarification. The Fourth Circuit’s ruling holds that the Mineral Leasing Act does not give federal agencies (such as the National Forest Service) authority to grant pipeline rights of way across lands in the National Park System, including the AT, when pipelines are proposed to cross federal land. State and private land would be a different story.
As a professor at UVA's law school, Jaffe has students who work on SELC cases, and as a former employee of that non-profit, he also confers on an occasional basis with SELC attorneys. He is not a paid consultant to that organization.
The Southern Environmental Law Center is a financial supporter of RadioIQ.