Supreme Court Agrees to Hear ACP Appeal -- When and What Will the Decision Be?
Last Friday, the U.S. Supreme Court (Supreme Court) agreed to hear the appeal filed by Atlantic Coast Pipeline (ACP) and the U.S. Forest Service (USFS) which challenged the decision by the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) voiding the permit allowing ACP to cross the Appalachian Trail (AT) on land owned by the USFS. Following the decision to hear the appeal, Dominion indicated that it anticipates a ruling by June, and that if it resolves its other permitting delays in a similar time frame, that construction could resume by next summer and wrap up by late 2021.
Today, we look at the history of similar Supreme Court cases to determine the likely date for a decision, and the likelihood of a decision that would allow the project to move forward. We find that the ruling by June is appropriate and that it is more likely than not that the decision will be one that allows the project to move forward. That would certainly be good news for ACP, but also Mountain Valley Pipeline (MVP), which also requires a permit for a similar crossing of the AT.
Appalachian Trail Crossing
As we discussed in MVP and ACP – Similar Projects, Similar Problems, Different Paths , both ACP and MVP cross the AT on land that is owned and managed by the USFS. ACP’s permit from the USFS was appealed to the Fourth Circuit, which found that the USFS did not have the authority to issue a permit, and that if any organization in the federal government did, it would be the National Park Service. While MVP’s similar permit was never directly challenged, its crossing of USFS land was also vacated by the Fourth Circuit. Since it needs a revised agreement to cross USFS land, MVP appears to be anticipating a similar challenge to its AT crossing. Therefore, MVP has supported ACP’s efforts to have the Fourth Circuit’s decision reversed, and MVP’s path to completion of its project would be greatly benefited if ACP is successful in its appeal.
Impact of the Decision
As ACP has argued in its petition to the Supreme Court, a decision in its favor may be critical to the entire pipeline industry because, otherwise, the AT could become a 2000 mile barrier against pipeline development along the Eastern Seaboard. That is why both MVP and fourteen trade organizations filed briefs in support of ACP when the Fourth Circuit was considering whether to rehear its original order. Those groups, including the National Association of Manufacturers, the American Petroleum Institute, the Interstate Natural Gas Association of America, the Natural Gas Supply Association, and the Edison Electric Institute, argued that the decision by the Fourth Circuit threatened U.S. energy security and created uncertainty that would have lasting economic effects. We expect similar supporting briefs to be filed with the Supreme Court.
The immediate impact on ACP of the Supreme Court’s acceptance of its appeal was that the DC Circuit decided to delay hearing the consolidated appeals of the FERC certificate approving the project. On the same day that the Supreme Court agreed to hear the appeal of the Fourth Circuit decision, the DC Circuit put the appeals of the FERC certificate on hold until the Supreme Court reaches a decision about the AT crossing. Since ACP has indicated it does not intend to start construction until next summer, and because it is uncommon for the DC Circuit to issue stays while it decides the appeals of a FERC certificate, we do not view this decision as problematic with regard to ACP’s ultimate schedule.
Timing of the Case
In its response to the decision to hear its appeal, ACP noted that it anticipates a decision by June of 2020 on the appeal. This appears to be based on the fact that the Supreme Court hears cases through April of each year and will typically render decisions on those cases by the time it adjourns at the end of June. Looking at the history of the Supreme Court’s docket since 2005, when Chief Justice Roberts succeeded Chief Justice Rehnquist, shows that the decision could come a few weeks earlier than the end of June, depending on when the court hears the oral argument.
Under the Supreme Court’s rules, ACP and the USFS will have 45 days, until November 18, 2019, to file their opening briefs, subject to any requested extensions. Those groups opposing the appeal will have until 30 days after that, December 18, 2019, to file their opening briefs. All reply briefs are due no later than 30 days following that, or January 17, 2020, but must be filed at least one week before the date of oral argument.The Supreme Court has not fixed the date for the oral argument in ACP’s appeal. It has scheduled oral arguments in other cases only through December of this year and has 12 cases, including ACP’s appeal, for which it has yet to schedule an oral argument. Therefore, it is possible that the oral argument could be scheduled as early as January or February of next year. The graphic below shows the time period between the date of an oral argument and the court’s decision for all cases granted cert since Justice Roberts became Chief Justice in 2005.
Data derived from Harold J. Spaeth, Lee Epstein, et al. 2019 Supreme Court Database, Version 2019 Release 1. URL: http://Supremecourtdatabase.org accessed on October 7, 2019.
As seen above for cases argued in January, the median time to a decision is 106 days. Since January’s oral arguments are scheduled for the 13th through the 22nd, that would mean if ACP’s case is heard that month, the decision could be expected between April 28 and May 7, depending on the day in January the oral argument occurs. If we assume the oral argument occurs in February, the median drops to 101 days, which means the decision could come somewhere between June 4 and June 9. If it slips to March, the median drops to 84 days, which would make the decision date sometime between May 25 and June 23. And if the argument is delayed until April, the median time to decision drops to 58 days, which would put the expected decision date between May 29 and June 27. Given this history, it seems likely that the decision will come by the end of May rather than the end of June. We will know more once the date of the oral argument is set.
Likely Outcome
By looking at cases decided since Justice Roberts became Chief Justice in 2005, it is also possible to assess the likelihood that the decision will be one which allows the ACP and MVP projects to move forward. Such a decision would have to reverse or vacate the Fourth Circuit’s decision. If the Supreme Court were to uphold the Fourth Circuit’s decision, that would put an end to the case, but would also mean the projects would need to either find another legal basis for crossing the AT, such as the land swap MVP is pursuing, or an Act of Congress -- or would need to reroute the project to avoid the current crossing of the AT. It is, of course, possible that the Supreme Court might issue a decision that neither affirms or reverses the Fourth Circuit’s decision. That would probably lead to further delays as the case would likely be remanded to the Fourth Circuit for further consideration. The graphic below shows the chances of these three possible outcomes -- a reversal of the lower court, a decision affirming or upholding the lower court, or a decision that really does neither, i.e ., a mixed decision -- by looking at key features of this appeal and comparing it to all similar appeals decided by the Roberts Supreme Court since 2005.
Data derived from Harold J. Spaeth, Lee Epstein, et al. 2019 Supreme Court Database, Version 2019 Release 1. URL: http://Supremecourtdatabase.org accessed on October 7, 2019.
The first column above shows the overall rate for all appeals from Federal Circuit Court decisions since 2005. The overall rate shows that there is a 65% chance that the Fourth Circuit’s decision is reversed. However, as you slice the data a little more finely, that percentage can change. The second column shows the reversal rate for appeals from the Fourth Circuit, which is actually lower, at 52%, than the overall reversal rate. If you look at only those cases where a federal agency, like the USFS, is the petitioner, the reversal rate goes up slightly to 56%. If you consider only those cases where the interpretation of a federal statute is the key issue for the Supreme Court, the reversal rate jumps to 68%. For cases of essentially first impression for the Supreme Court, where it takes the case without waiting for there to be a split among the lower courts, as it did in this case, the reversal rate goes to 69%.
Finally, if you combine three key features of this case, where a federal agency is asking the court to review the interpretation of a federal statute and the court took the case before a split had developed among the lower courts, the reversal rate jumps to its highest, at 76%. No matter how you slice the data, it appears likely that the decision of the Fourth Circuit will be reversed in this case in a manner that allows the projects to move forward with their current crossings of the AT. The chance of a mixed decision, which would lead to further delay, appears very unlikely at less than 10%. We will be following this case closely and intend to provide our views on the likely outcome following the oral argument in the case.
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