Federal Court Denies Atlantic Coast Pipeline's Request for New Hearing

Feb 26, 2019

A federal appeals court has denied a request by the developers of the Atlantic Coast Pipeline to rehear a case over the legality of permits that allow the multibillion dollar natural gas pipeline to cross under national forest lands, including the Appalachian Trail.

The 4th U.S. Circuit Court of Appeals on Monday declined pipeline developer Dominion Energy’s request for the case to be reheard in front of the full bench. The company says it intends to appeal to the U.S. Supreme Court within 90 days.

In December, a three-judge panel of the 4th Circuit ruled the U.S. Forest Service violated two cornerstone environmental laws -- the National Forest Management Act and the National Environmental Policy Act -- and thus failed to protect federal land when it issued approvals to allow the 600-mile Atlantic Coast Pipeline to cross the George Washington National Forest, Monongahela National Forest and the Appalachian Trail.

In her 60-page opinion, 4th U.S. Circuit Court of Appeals Judge Stephanie Thacker cited Dr. Seuss’ “The Lorax.”

"We trust the United States Forest Service to 'speak for the trees, for the trees have no tongues,'" Thacker wrote. "A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources."

The court’s decision not to rehear the case “en banc” or in front of the full court is another blow to the 600-mile interstate natural gas pipeline that would run from West Virginia to eastern North Carolina. Construction is currently halted along its entire route.

The 4th Circuit in December also stayed the pipeline’s revised Biological Opinion and Incidental Take Statement, a key permit from the U.S. Fish and Wildlife Service that authorizes construction through habitat identified as critical for certain threatened or endangered species across West Virginia, Virginia and North Carolina.

In a statement, Dominion spokesman Karl Neddenien said project developers intend to appeal to the U.S. Supreme Court within the next 90 days. The company is also pursuing legislative and administrative options.

In its Feb. 1 earnings call, Dominion said costs for the pipeline had ballooned from between $4.5 billion and $5 billion when first announced to between $7 billion and $7.5 billion.

The company said despite the myriad of delays, it is confident “at least partial construction will recommence in the third quarter of 2019” and the entire pipeline will be completed.

In a statement, the Southern Environmental Law Center and the Sierra Club, two environmental groups challenging the project, said the 4th Circuit's decision not to rehear the case "sends the Atlantic Coast Pipeline back to the drawing board."