Today the Supreme Court handed down a 7-2 decision allowing the construction of the Atlantic Coast Pipeline, a 600-mile project bringing natural gas produced in West Virginia eastward into Virginia and North Carolina. The case, United States Forest Service v. Cowpasture River Preservation Association, represents a big win for energy dominance, jobs, affordable energy, and most importantly the rule of law.
In so doing, the Supreme Court reversed a far-fetched Fourth Circuit Court of Appeals decision that essentially labeled the Appalachian Trail—a 2,100 mile hiking trail that runs through private, state, and federal lands from Georgia to Maine—as a national park. Treating the trail as such would have blocked the proposed pipeline, which has to pass underneath it, not to mention all manner of other energy and transportation infrastructure serving the population centers of the East Coast. The lower court decision, if allowed to stand, would have cut off the East Coast from the rest of the country in several economic respects.
The relevant law was clear that the land in question is under the control of the Department of Agriculture’s Forest Service, which had approved the pipeline, and was not part of some new national park that would be subject to the Department of the Interior’s National Park Service. The latter designation would have made a pipeline approval impossible. Justice Thomas, writing for the majority, noted that “Congress has used unequivocal and direct language in multiple statutes when it wished to transfer land from one agency to another,” but that no such statutory language exists here.
This case is part of a larger trend among climate change activists. In the absence of any duly enacted federal climate legislation—cap and trade bills, carbon tax proposals, climate change treaties, and most recently the Green New Deal have all failed to become law—activists have sought to achieve the same goals by reinterpreting older statutory authority never intended for the purpose.
Beyond the Atlantic Coast Pipeline, examples include novel interpretations of the 1972 Clean Water Act (since reined in by a recent EPA final rule) to block natural gas pipelines as well as other fossil fuel projects like a coal export facility in Washington State. Here, the Supreme Court rejected a strained reading of existing law that had been used to stop the pipeline.
The Atlantic Coast Pipeline would create thousands of construction jobs as well as many permanent jobs operating the pipeline, serve as an outlet for West Virginia’s abundant natural gas supplies, and help keep energy prices lower for end users in the Virginia and North Carolina.
Unfortunately, it still faces a number of other regulatory and permitting hurdles. But this decision is a welcome sign that inventing legal reasons to stop fossil fuel-related projects has its limits.