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June 22, 2020

Supreme Court May Be Deciding Factor In State Pipeline Construction

There was a lot of energy pipeline-related news in the last week. On June 15, the U.S. Supreme Court ruled in favor of the Atlantic Coast Pipeline, determining that the federal government could not block pipeline development under the Appalachian Trail. That 7-2 decision overturns the 4th U.S. Circuit Court of Appeals’ finding that the Forest Service could not authorize the natural gas pipeline to pass hundreds of feet below the trail.

The court also announced that, on June 25, it will hear an initial consideration of PennEast’s appeal for review of its pipeline project.

As Connecting the Dots has noted in the past, its partners at the Energy Equipment and Infrastructure Alliance (EEIA) have been working to allow construction of this pipeline to move forward after the U.S. Court of Appeals for the Third Circuit, which covers New Jersey, Pennsylvania, and Delaware, ruled in 2019 that PennEast cannot exercise its federally-delegated eminent domain authority to route the pipeline through New Jersey state-owned property. PennEast petitioned the U.S. Supreme Court in February to review and overturn the Third Circuit’s ruling, and EEIA supported that effort.

Two possible outcomes of the court’s June 25 review are:

  • First, the court could decide shortly thereafter if they will accept the case, or
  • The court could request the opinion of the U.S Solicitor General, in which case the decision likely would not come until at least September after the Court returns from its summer break.

If the court does take the case, it is likely that arguments would be heard in the fall and a decision would come in the first half of 2021.

In related news: The U.S Department of Justice, on behalf of the Army Corps of Engineers, filed a petition this week with the Supreme Court to delay implementation of the Montana Court’s ruling striking down the Corps’ Nationwide Permit 12 pipeline water crossing permits for Keystone XL, and into the bargain invalidating all NWP 12 permits for pipeline projects nationwide, while an appeal of that ruling is being considered by the 9th Circuit Court of Appeals. That court had earlier denied a request for a stay pending appeal that was filed by TC Energy and supported by EEIA’s amicus brief.

The Supreme Court will likely decide whether to issue the stay within the next three weeks. The 9th Circuit Court’s review of the appeal could take several months, meanwhile. If the lower court rules against the NWP 12 permit program, it would be yet another pipeline decision that could end up in the hands of the U.S. Supreme Court.