Key Environment, Workforce Rulings Ahead For U.S. Supreme Court
The U.S. Supreme Court on Oct. 4 said it would hear, in its term starting Oct. 7, two consolidated cases to consider whether the U.S. Forest Service has the authority to grant right-of-way for the $7.8-billion, 600-mile Atlantic Coast Pipeline to cross beneath the Appalachian Trail on national forest land. The two cases involve decisions by the federal appeals court in Richmond, Va.
Justices also will hear on Oct. 8 a workforce-related case that could have industry impact, whether LGBTQ workplace discrimination protections are covered by Title VII of the 1964 Civil Rights Act. They also will decide later this term whether President Donald Trump can eliminate the Deferred Action for Childhood Arrivals (DACA) program, begun in 2012 that now provides temporary protections to hundreds of thousands of undocumented workers, including many now working in construction.
Pipeline developers Dominion Energy and Duke Energy argued that the decisions in its case had the effect of erecting a 2,200-mile barrier—the length of the trail—separating natural gas resources in the interior of the country from consumers on the East Coast.
About 1,000 miles of the Appalachian Trail is within national forest land. The developers also said the decisions would threaten construction of dozens of pipelines anticipated to generate 17,240 jobs.
U.S. courts and agencies have suspended seven critical permits for the line, resulting in a construction halt since last December, the Southern Environmental Law Center said.
The 300-mile Mountain Valley Pipeline was not party to the lawsuits, but its developers in a supporting court filing said the project was stopped at 67% complete as workers prepared to drill a borehole under the Appalachian Trail. Developer EQM Midstream Partners LP has invested $3 billion in the project, which is estimated to cost $4.6 billion.
Meanwhile, eminent domain issues related to pipeline construction factor in three other cases petitioned to the court for possible review this term, including whether the $1-billion PennEast line can be built on state-owned land in New Jersey.
The pipeline cases will join several other high-profile rulings involving environmental issues the high court is set to consider this term.
Justices will hear arguments on Nov. 6 on whether point sources of pollution that indirectly contaminate navigable waters through groundwater flows need a federal Clean Water Act permit.
The case involves Maui County, Hawaii’s injection of wastewater into wells that then migrates through the groundwater to the Pacific Ocean, where environmental advocates claim it has harmed coral and should require further municipal treatment.
The county voted to settle the case after a San Francisco federal appeals court ruling, but County Mayor Michael Victorino has yet to sign the settlement and it is unclear if he will. He says the agreement could cost Maui County $800 million in fines, required upgrades and legal fees.
Another closely-watched appellate-level case, which raised issues of federal clean-water enforcement of coal-ash pollution through groundwater, was removed last month from high court review when parties settled.
But the court could decide to hear a similar case, in which the Richmond appellate court concluded that seepage of gasoline through soil and groundwater to contaminate navigable waters was an ongoing violation of the Clean Water Act’s prohibition of unpermitted discharges from a point source.
That case, Kinder Morgan Energy Partners v. Upstate Forever and Savannah Riverkeeper, could be taken up later in the term, analysts say.
The court has also agreed to hear, but has not set a hearing date, for a case involving a dispute over a common-law claim for restoration.
Landowners near the Anaconda copper smelter Superfund site in Montana want cleanup remedies that conflict with remedies authorized by the U.S. Environment Protection Agency.
The question is whether the federal law authorizing Superfund preempts state common-law claims for restoration that conflict with EPA-ordered remedies.
The high court is set to take up the DACA elimination case on Nov. 12.
In a "friend of the court" brief filed on Oct. 4,143 business groups and employers, including several software trade groups and National Association of Manufacturers, as well as energy firm Exelon, and corporate giants Intel, IBM, Verizon and Apple, cite harm to the U.S. economy if DACA is eliminated.
Universities such as MIT and the University of California and a group of state attorneys general also have filed supporting arguments citing negative impacts and economic harm.