Dominion, Duke Hike to Supreme Court in Trail Dispute: Podcast (1)

Two companies, Dominion Energy Inc. and Duke Energy Corp., want to build a pipeline underneath the famed Appalachian Trail, but environmentalists want them to go take a hike.

On this episode of our podcast, Parts Per Billion, we head out to the trail with Bloomberg Environment’s Ellen M. Gilmer and find out what this dispute is about and why it’s heading all the way to the Supreme Court.

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TRANSCRIPT

David Schultz: Energy companies want to build a pipeline underneath the Appalachian trail. But environmentalists are telling them to go take a hike. On this episode of Parts Per Billion, we go take a hike, literally, and find out why this whole conflict is at the Supreme Court.

Hello. Welcome back once again to Parts Per Billion, the podcast from Bloomberg Environment. I’m your host David Schultz. The Appalachian trail is of course a very famous hiking trail. It goes all the way from Georgia to Maine. But today we’re going to be talking about one specific spot on the trail just outside of Charlottesville, Virginia. That’s because this is the spot where two energy companies, Dominion and Duke want to build a natural gas pipeline underneath the trail. The companies say there will be little if any impact on the trail and its pristine environment, but environmental activists disagree and their dispute has now reached all the way to the highest court in the land. And here to sort all this out for us is Bloomberg Environment’s legal reporter Ellen Gilmer. Ellen, thank you for joining us. So Ellen, tell me about the Appalachian Trail. I’ve never been there. I understand you’ve been there very recently. What, what makes this unique? Why is this something that’s worth, you know, protecting?

Ellen M. Gilmer: The Appalachian Trail is really an iconic piece of American history and American life today. People… thousands of people hike on it every year. They come from all over the country and all over the world. It’s actually not that far from D.C., so you should really go check it out. I think the nearest spot is, is maybe an hour or so away in Harper’s Ferry. Yeah. But it’s just a trail that goes that far when it… when they were first working on the idea to create this trail, it was really a kind of novel and revolutionary idea. And it’s become a model for all these other trails all over the world.

DS: That you’d have a hiking trail that goes across that many states.

EG: Yeah. And so far it’s, it’s more than 2,000 miles, you know, just contiguous all the way through.

DS: Well, as I mentioned, you recently went there to see what all this sort of hubbub is about and you took a hike and it sounds like there are people out there who go on this trail almost every day.

EG: Yeah. Actually, as I was hiking on the trail, I went out to visit a slice of the Appalachian trail that’s near the Blue Ridge Parkway in Virginia. It’s about 40 miles from Charlottesville. And I went hiking with some people from Dominion Energy. I also went hiking with some people from the Southern Environmental Law Center and some environmental organizations who are challenging the pipeline.

EG: Well, that’s a lot of work.

Lynn Cameron: Well, it’s good exercise. That’s right. Some people go to gyms. We go to the Appalachian Trail.

DS: So Ellen, tell me about what Dominion and Duke, what do they want to do here? You know, I understand it’s a pipeline under the trail, but it’s sounds a little more complicated than that. Why do they need this pipeline here?

EG: So here’s the situation. West Virginia has a ton of natural gas. East coast or Eastern seaboard areas, highly populated areas, you know, they’ve got energy needs for electricity and home heating and things like that. So the pipeline would move natural gas from West Virginia to the East coast. What’s between those two things? Mountains and the Appalachian trail.

DS: So is it that simple? It’s just you have energy on one side of the trail and you have people who need to use energy on the other side of the trail.

EG: That’s pretty much it. I mean, there’s a lot of disagreement over the particular route that the Atlantic Coast Pipeline would take and a lot of environmental groups and conservationists argue that if they must build a pipeline, there are some other places where it might be more compatible. But at the end of the day, it’s got across the trail to get to where it’s going. Now the particular crossing we’re talking about, it’s important to note that it doesn’t actually cross the trail at the surface level. It would burrow underneath the trail about 700 feet underground.

DS: And you actually spoke with a spokesperson for Dominion Energy Ann Nallo on the trail. And she mentioned that, you know, they’ve taken a ton of, of, you know, precautions to make sure that this pipeline would not impact the trail. Let’s hear from them.

Ann Nallo: We’ve worked with all these agencies to ensure that this route in particular is the one with the least environmental impacts. And that’s been our goal all along. So this is the route we believe is the right one.

DS: And the agencies she’s talking about there, the National Park Service, which oversees the trail and the US Forest Service, which owns and oversees the land around the trail. And we’re going to get into the reasons why that is important in just a bit because that’s a really important point. But so we heard from Dominion, we heard that, you know, this trail will go underground, it won’t impact the actual trail itself, either the ecosystem or the aesthetic scenic aspects. Environmentalist see it differently. What, what did they say?

EG: Environmentalists who I also went, went out and visited the trail with, they say, look, maybe you can’t see the pipeline right here on this exact spot where it would burrow underneath the mountain, but just keep walking a mile or two and you’re going to see the pipeline corridor in the distance and you know, kind of views where previously you would just see mountains and some houses a road like kind of a, a slice of the Shenandoah Valley. They’re also concerned about the actual construction to burrow underneath the mountain. They use a process, they would use a process called horizontal directional drilling. It takes about a year to get from where they would start to their end point on the other side of the mountain and that whole year or for much of it, they’re, they’re using drills, heavy machinery to go underneath the mountain, creating a lot of noise affecting the wildlife and the trail experience.

DS: So a year where, you know, you’re going to be hiking along the trail and you know, having a nice sort of quiet moment of solitude and then you’re going to be hearing like a power drill off in the distance.

EG: Yeah, potentially. I mean, I don’t, it’s not, it wouldn’t be 24, seven, but there would certainly be a lot of that happening.

DS: Yeah. And I mean, I guess Lynn Cameron is someone you spoke with also on the trail. And she kind of summed up what people are worried about the most. She’s a board member of the Virginia wilderness committee, and she talked about exactly why people in her group are so worried about this pipeline going underneath the trail.

LC: Now this is one of the most unfragmented tracks of forest around. So you’re taking an area that’s outstanding in its scenic qualities and reducing it to an industrial corridor.

DS: So that pretty much summarizes the debate between the environmentalists and the energy company. But that debate has now spilled into the legal arena and it’s gone all the way up to the U.S. Supreme court. We’re going to get to that in a little bit, but first we’re going to take a quick break.

And we’re back and we’re talking about the Atlantic Coast Pipeline, which could potentially go underneath the Appalachian trail. There’s a lawsuit about that. And that lawsuit has gone really far about as far as any lawsuit can possibly go. What’s going on here? Who’s suing who and where is this case and, and what’s, give me a little sense of the history.

EG: Sure. So a coalition of environmental groups has filed a lot of lawsuits over the Atlantic Coast Pipeline. There’s one lawsuit that’s made it all the way up to the Supreme court that focuses on the Appalachian Trail crossing. And the issue is kind of wonky as are a lot of issues that make it up to the Supreme court, of course. Right. So the issue here is basically what agency is in charge of what, so we’re talking about the Appalachian Trail. It’s a national scenic trail. The National Park Service overseas national park lands, and the trail is considered one of those units.

DS: Okay. So that means if you want to build a pipeline underneath the trail, you just apply for a permit with the National Park Service. Sounds simple enough.

EG: Well, that’s what some people would say. The other issue here is that this is a part of the Appalachian Trail that crosses a national forest. So the trail crosses the George Washington National Forest. The Forest Service is in charge of what happens on Forest Service lands.

DS: Ooh. So National Park Service, US Forest Service, who gets to decide whether the pipeline gets built, right? And is that, is it fair to say that’s the central question of this case?

EG: That’s right. And here’s why it matters so much. In this case, the pipeline company applied for a permit from the Forest … Forest Service issued the permit. A lower court said the Forest Service didn’t have authority to do that. It had to be the National Park Service. If it’s the National Park Service that’s in charge of issuing permits for pipeline crossings on the Appalachian Trail, it’s actually a lot more complicated because of the way federal law is written. The National Park Service actually can’t do that and it has to bump the question over to Congress. So Congress would have to approve any pipeline crossing of the Appalachian Trail if it’s determined that the National Park Service is the agency in charge and the crossing at issue is on federal lands.

DS: Whoa. So that means that if the environmentalist win this case, any pipeline that wants to cross the Appalachian Trail needs explicit approval from Congress?

EG: Only where the Appalachian trail is on federal lands.

DS: And then what if the energy companies when went then, then who gets to approve you know, applications to build a pipeline?

EG: In that case, then it would just be what happened. They applied for a permit from the Forest Service, Forest Service granted it. So then it would be clear from the Supreme Court that the Forest Service has authority over Appalachian Trail crossings when it’s on Forest Service land.

DS: So let’s talk about the stakes here. And I think one of the ways that we can illustrate how big the stakes are is by who’s representing the energy companies. This is a name that you might be familiar with if you’re a legal nerd. If you’re not, you might not be familiar, but it’s Paul Clement, the former Solicitor General of the United States of America is representing the energy companies here before the Supreme Court. And he talked about the stakes here. What… what it would mean if the, the energy companies lose at the Supreme Court. Let’s hear from him.

Paul Clement: It’s 2,200 miles and it goes all the way from Maine to Georgia and it’s really quite a significant, if that entire trail is construed to be National Park Service land that can’t have a pipeline go through it. I mean that’s a huge barrier to pipelines up and down the entire East Coast. And I think it’s really hard to think that Congress would have wanted to do that.

DS: Does he have a point here that you know, the, the trail as we mentioned goes from Georgia to Maine. If pipeline companies can’t build through it, it’s essentially like an iron curtain.

EG: Well it all depends on really whose legal analysis is the prevailing argument, because the environmental groups involved in the case say the entire trail is not like an impassable barrier. You can build on private lands, you can build on state lands if you’ve got the right permits and whatnot. If, if you have a, those permissions, the issue of National Park Service authority is only implicated when you’re crossing federal lands. It’s very complicated and very wonky at the Supreme Court.

DS: But so, so it sounds like the environmental groups are saying, no, you’re making it sound more, you’re just making it sound worse than it is. You could have built this pipeline somewhere else and cross the trail. That would’ve been fine, but you had to build it here and we don’t like you building it here.

EG: Right. And the… the area they’re talking about, it’s, it’s you know, it’s a national forest. It also has three nearby wilderness areas, which are basically the, the least developed wild areas that are protected as public lands. You’ve got the, the Appalachian Trail itself. Obviously you’ve got the Blue Ridge Parkway. So they’re saying we have all these protected areas. Why would you choose to build it right here?

DS: What are the energy companies say? I mean, do they, like… we just felt like it this we threw a dart at a map and this is what happened? Or do they have a reason why they want to build it where they’re building it?

EG: Well, they spent years planning their route and they say this route was the best option. Tunneling under the trail or burrowing under the trail is the best option because if they were to take the pipeline, say a little bit north to go kind of near an interstate corridor where there’s more development and some people might think that’s more compatible for a big pipeline. Dominion says, well, if we were to do that, we would have added all this mileage to the pipeline so then we would have been affecting more actual land and more species nearby. So they thought this was the best option.

DS: All right, well before we wrap this up the oral argument is on the 24th. Is that right?

EG: That’d be right. 24th.

DS: So both sides are going to head up to the Supreme Court, duke it out, and then you know, the justices will decide at some point later on in the future. Care to make a prediction?

EG: Never make predictions, but it’ll be interesting to watch. It’s actually the U.S. government and Atlantic Coast will be arguing on one side and then the environmental groups will be arguing on the other.

DS: All right, that was Ellen Gilmer talking about the court case. U.S. Forest Service v. Cowpasture River Association. That’s the official title of it. We have much more about this on our website, news.bloomberg environment.com. And for more Supreme court coverage, visit our sister website, news.bloomberg law.com. If you want to chat with us on social media, use the hashtag parts per B. That hashtag once again is parts per B.

And one more thing before we go on our last episode, we talked about how the FDA and the EPA are regulating ethylene oxide, toxic gas that’s also used as a medical sterilizer. The FDA weighed in with us and wanted to say that when it’s sent comments to the EPA, they reiterated that while the FDA has authority over medical device sterilization, the EPA, its job is to limit emissions of the toxic gas to protect health and the environment.

So that was today’s episode of Parts Per Billion. It was produced by myself along with Marissa Horn, Jessica Coomes, and Josh Block. The music for this episode is “A Message by Jahzzar” and “Miles Away” by Christopher Moutot. They were used under a Creative Commons license. Thanks for listening.