Atlantic Coast Pipeline, LLC is a partnership between Dominion Energy and Duke Energy. They are trying to build a 604-mile natural gas pipeline from West Virginia to North Carolina along a route that crossed 16 miles of land within the George Washington National Forest. Atlantic Coast Pipeline secured a special use permit from the United States Forest Service in 2017, obtaining a right-of-way for a 0.1-mile segment of pipe approximately 600 feet below the Appalachian National Scenic Trail (Appalachian Trail or Trail), where it also crosses the National Forest.
In December 2018, the Fourth Circuit vacated the permit that the U.S. Forest Service had issued. In the opinion Judge Thacker stated that the judges concluded that the Forest Service’s decisions violated the National Forest Management Act and National Environment Policy Act, and that the Forest Service lacked statutory authority pursuant to the Mineral Leasing Act to grant a pipeline right of way across the Appalachian National Scenic Trail.
Now the Supreme Court in a 7-2 opinion by Justice Clarence Thomas on Monday, overturned that ruling. The Supreme court found that the Forest Service had the authority to issue the special use permit. The Court found that the Forest Service, with authority granted by the Secretary of Agriculture, has jurisdiction over the National Forest System, including the George Washington National Forest. The National Trails System Act (Trails Act) establishes national scenic and national historic trails, including the Appalachian Trail. The Trails Act also empowers the Secretary of the Interior to establish the Trail’s location and width by entering into “rights-of-way” agreements with other federal agencies, States, local governments, and private landowners.
The Supreme Court found that a right-of-way is a type of easement. And easements grant only non-possessory rights of use limited to the purposes specified in the easement agreement: They are not land; they merely burden land that continues to be owned by another. Thus, the Forest Service maintained ownership of the land and could grant a right of way easement to the pipeline.
If it goes forward the Atlantic Coast Pipeline will originate in West Virginia, travel through Virginia with a lateral extending to Chesapeake, VA, and then continue south into eastern North Carolina, ending in Robeson County. Two additional, shorter laterals will connect to two Dominion Energy electric generating facilities in Brunswick and Greensville Counties. The Atlantic Coast Pipeline will provide a consistent supply of natural gas to the power plants in the region in addition bring natural gas to the coast for export.
The abundance of shale natural gas coming from the Marcellus is expected to keep prices for natural gas relatively low into the foreseeable future and has created a glut in natural gas that can now be exported. The gas fired generation can serve as swing power, rather than base supply for Virginia during the transition away from fossil fuels. Virginia is now subject to the Virginia Clean Economy Act which was signed by Governor Northam on April 12, 2020 requires Dominion Energy Virginia to be 100% carbon-free by 2045 and Appalachian Power to be 100% carbon-free by 2050. It requires nearly all coal-fired plants to close by the end of 2024.
The Virginia Clean Economy Act also establishes a carbon dioxide cap-and-trade program to reduce emissions from power plants, in compliance with the Regional Greenhouse Gas Initiative (RGGI). The Department of Environmental Quality will establish and operate an auction program to sell allowances into a market-based trading program. Cap-and-trade system can be very complex to operate. Cap-and-trade also requires the establishment of an emissions trading market that has not always proven efficient in practice and they can become expensive to operate and monitor. I have long supported a carbon tax instead.
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