For Energy Infrastructure Projects, Even Supreme Court Victories Mean Nothing

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In the last two years, two different natural gas pipeline projects were the subject of Supreme Court cases, and both times the project developers achieved a legal victory against those who had sued to stop them. Regardless, both projects were cancelled soon thereafter. This speaks volumes about the many hurdles facing new energy infrastructure projects, especially fossil fuel-related ones.

In 2020, the Court decided United States Forest Service v. Cowpasture River Preservation Association. At issue was the proposed Atlantic Coast Pipeline, which would take some of West Virginia’s abundant natural gas (thanks to fracking) east to Virginia and North Carolina, where it is in demand. It would cross underneath the Appalachian Trail, a 2,100-mile hiking trail comprised of private, state, and federal lands stretching from Georgia to Maine. Unfortunately, a lower federal court agreed with the farfetched claim from environmentalist litigants that the part of the Appalachian Trail at issue should be treated like a national park, in which case no pipeline crossings could be approved. On appeal, the Supreme Court dispensed with this claim in a 7-2 decision.

In 2021, the Supreme Court decided PennEast Pipeline Co. v. New Jersey. The proposed Penn East pipeline would take natural gas from Pennsylvania to New Jersey, for which the company would have to exercise eminent domain over some New Jersey state lands. The state objected, but the pipeline developers prevailed in a 5-4 Supreme Court decision.

After both decisions, pipeline opponents insisted that even losing at the highest court in the land won’t stop them from blocking these projects. On the Atlantic Coast Pipeline, the Sierra Club  asserted that since the project is “still lacking 8 permits, this decision is just plugging just one hole on a sinking ship.” This included an Endangered Species Act permit, a special use permit and right-of-way grant from the U.S. Forest Service, a right-of-way permit from the National Park Service, and Clean Water Act authorizations and other permits from every impacted state.

Similarly, PennEast opponents asserted that, notwithstanding the Supreme Court loss, there were plenty of other avenues for obstruction. For example, the executive director of the Watershed Institute said that “our fight against PennEast is far from over,” noting a separate case before the D.C. Circuit of the U.S. Court of Appeals and permits yet to be obtained from the U.S. Army Corps of Engineers, the Delaware River Basin Commission, and the New Jersey Department of Environmental Protection.

Just a month after their Supreme Court win, the developers of the Atlantic Coast Pipeline, Dominion Energy and Duke Energy, recognized that their six year-long battle for approval was far from over and decided to cancel the project. Similarly, PennEast gave up three months after prevailing in its Supreme Court case.

Losing these two projects is bad enough, but the bigger problem is chilling effect on other prospective pipeline developers. If you can take the time and expense of fighting pipeline opponents all the way to the Supreme Court, win, yet still are forced to give up, why even try?