Supreme Court Set to Alter Law on Key Project, Workforce Issues
With its term now under way, the U.S. Supreme Court could change federal laws with industry impact—from where huge pipelines can be built and new regulation of pollution in groundwater to whether LGBTQ workers have anti-bias rights under the 1964 Civil Rights Act.
Next year, justices will decide whether President Donald Trump can legally eliminate immigrant status for young undocumented “Dreamers” now in the U.S., who include many working or considering jobs in the construction sector.
In a key pipeline siting dispute, the court agreed to take up two consolidated cases to decide 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.
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 are 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 appellate ruling also appears to be a key factor in the Oct. 11 denial by the state of required environmental permits for its current planned route.
The pipeline cases will join several other high-profile decisions on environmental law the high court could make this term.
In particular, 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 and could require treatment—potentially costly to municipalities.
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, which would have removed it from the court docket, 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 later in its term a similar case, in which the Richmond appellate court concluded that seepage of gasoline from a Kinder Morgan pipeline through soil and groundwater that contaminated navigable waters was an ongoing clean water law violation.
An in yet another Clean Water Act dispute, the court could consider when and how a state can waive its authority under the law to grant environmental permits to projects.
The case California Trout v. Hoopa Valley tribe stems from a settlement to decommission four dams on the Klamath River in California.
The high court will determine if California's action in having the utility seeking the projects' water quality permit repeatedly submit and then withdraw its application allowed the state more time±beyond the year mandated under federal law—to complete needed assessment and issue the permit.
States argue that such certifications are complex and often take up to five years to complete.
Two appellate courts ruled that states waive their authority after one year, but another said states do not if applicants withdraw and resubmit their requests.
Justices also will hear arguments on Dec. 3 involving federal v. local authority in mandating the cleanup approach for a site on the U.S. Superfund list.
The case before them involves a dispute over a so-called "common-law claim" for site restoration at the former Anaconda copper smelter in Montana filed by local landowners. They want a site cleanup approach that conflicts with the one authorized by the U.S. Environment Protection Agency.
The question is whether the federal Superfund law preempts such a claim if it conflicts with EPA-ordered remedies.
The thinking of this seemingly divided Supreme Court on whether sexual orientation and gender identity bias are protected under Title VII of the Civil Rights Act will be much anticipated. While not expected to rule until the term ends next June, justices heard the first case arguments on Oct. 8.
The decision could be significant since fewer than half of the states bar discrimination based on the two issues.
The outcome could hinge on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs during argument, but also worried about the “massive social upheaval” that a favorable ruling could bring, says Amy Howe, an attorney and former law professor who has followed the court closely for SCOTUSblog.
Brian McAlexander, an architect and president of an American Institute of Architects chapter in Ohio, cites local protections and the group’s recently enacted ban against job bias based on sexual orientation. But he says: “I also know that this decision will be very impactful to those who do not live with such privileges.” he says.
The court also will hear on Nov. 12 three cases challenging the legality of the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program that offers temporary legal status to about 800,000 undocumented people brought to the U.S. as children.
In a "friend of the court" brief filed on Oct. 4,143 business groups and employers, including several software trade groups and the National Association of Manufacturers, as well as energy firm Exelon, and corporate giants Intel, IBM, Verizon and Apple, cite detrimental impacts 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.