OVERNIGHT ENERGY: Supreme Court upholds permit for $8B pipeline under Appalachian Trail | Report finds NOAA ‘Sharpiegate’ statement ‘not based on science’ but political influence | EPA faces suit over plan to release genetically engineered mosquito

by Rebecca Beitsch - 06/15/20 6:43 PM ET

HAPPY MONDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@digital-staging.thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@digital-staging.thehill.com or follow her on Twitter: @RachelFrazin.

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HIT THE TRAIL: The Supreme Court on Monday upheld a permit for a controversial $8 billion gas pipeline that would tunnel below the famed Appalachian Trail.

The 7-2 opinion handed a defeat to environmental groups who challenged the Atlantic Coast Pipeline (ACP), which would carry natural gas some 600 miles from West Virginia to North Carolina.

The decision to uphold the permit resolves a complex bureaucratic dispute involving multiple U.S. environmental agencies and overlapping legal authorities.

The case delved deep into philosophical questions. Is a trail more than just the land it sits on? And if so, who controls it?

The justices held that the U.S. Forest Service (USFS) had been duly authorized to greenlight the project, rejecting the challengers’ claim that power over the affected land lay elsewhere.

The dispute stemmed from the Department of the Interior’s decision to make the National Park Service (NPS) responsible for the Appalachian Trail, calling into question whether approval for the pipeline rests with Congress.

But Justice Clarence Thomas, writing for the majority, said the administrative arrangement did not remove the USFS’s power to permit construction under the trail.

“Accordingly, the Forest Service had the authority to issue the permit here,” wrote Thomas, whose majority opinion cut across ideological lines.

“For decades, more than 50 other pipelines have safely crossed the trail without disturbing its public use. The Atlantic Coast Pipeline will be no different,” ACP spokeswoman Ann Nallo said by email, reiterating the company’s plans to be in operation by 2022.

“To avoid impacts to the trail, the pipeline will be installed hundreds of feet below the surface and emerge more than a half-mile from each side of the trail. There will be no construction activity on or near the trail itself, and the public will be able to continue enjoying the trail as they always have.”

The case came before the justices on appeal from a 2018 ruling by the 4th Circuit Court of Appeals, which sided with environmentalists.

The lower court ruled that the Appalachian Trail fell under the authority of the NPS, which it said was barred by law from granting land access, known as a right-of-way, for energy development.

The ACP remains tied up in a number of other legal disputes and has yet to secure several other permits it needs to follow its proposed route.

“While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power,” DJ Gerken, with the Southern Environmental Law Center, which sued over the pipeline, said in a statement.

Environmental groups have pledged to continue to fight the pipeline in other outstanding cases.

“This decision doesn’t greenlight the dangerous Atlantic Coast Pipeline. The fact remains the developers cannot move ahead without securing eight crucial federal and state permits required for construction — concerning air pollution, endangered species, rights of way and clean water,” the Natural Resources Defense Council said in a statement.

“That’s why we’ll continue fighting through all legal and federal and state avenues to ensure this proposed fracked gas pipeline — which threatens the air, drinking water, environmental justice communities and our climate — is never built.”

Read the full story here, with more legal analysis from our SCOTUS report.

NOAA CONSEQUENCES: Leaders at the National Oceanic Atmospheric Administration (NOAA) violated the agency’s scientific integrity policy by issuing a statement in September contradicting the National Weather Service (NWS) shortly after President Trump warned Hurricane Dorian could be headed toward Alabama.

“The development of the statement was not based on science but appears to be largely driven by external influence from senior Commerce [Department] officials who drafted the Sept. 6 statement,” the National Academy of Public Administration (NAPA) concluded in its report, which was requested by NOAA following public pressure.

NOAA wrote in a Sept. 6 statement that “tropical storm-force winds from Hurricane Dorian could impact Alabama,” contradicting a Sept. 1 statement from the NWS in Birmingham, Ala., that said the state would see “no impacts” from the hurricane.

The statement came after Trump insisted that Alabama could bear the brunt of the 2019 hurricane, which ultimately landed on the East Coast. In making his claim, Trump used a marked-up projection map produced by NOAA that conflicted with information given by weather forecasters.

“The administration made matters worse by refusing to correct this known error in real time, and even taking steps to obstruct the career scientists and officials trying to do this work,” said Rep. Paul Tonko (D-N.Y.), who had been among those calling for an investigation.

“It will be clear to anyone reviewing the accounts captured in this highly credible, independent Scientific Integrity report that the political leaders who interfered in our emergency response system need to publicly apologize or resign,” Tonko added.

In its response to the report, NOAA said: “Scientific integrity is at the core of NOAA’s work and is essential for maintaining the public’s trust in the agency’s ability to provide accurate, thorough and timely science.”

The agency said it largely agreed with the report’s findings, which focus most heavily on NOAA head Neil Jacobs and his deputy chief of staff and head of communications, Julie Roberts.

“As the head of the agency and the director of communications, Dr. Neil Jacobs and Julie Roberts should take responsibility for the statement,” the report said.

But, it added, “they purported to believe it was out of their hands. It is important…to take into account the circumstances under which the Sept. 6 statement was developed and released.”

Investigators said they attempted to interview two Commerce Department officials involved in the drafting and release of the statement but were denied access by NOAA.

The NAPA investigation is one of three probes into what was dubbed “Sharpiegate” in reference to Trump’s additions to NOAA graphics. The House Science Committee and the Commerce Department’s Office of Inspector General are also investigating. The Commerce Department oversees NOAA.

The NAPA report concludes by saying NOAA staff should undergo training on scientific integrity as part of annual ethics trainings and that the agency should formalize an agreement with the Commerce Department to guide how it helps draft NOAA communications.

Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, a group that had called for the investigation, said that while the NAPA recommendations may be useful, the lack of any consequences for NOAA or Commerce staff do little to ensure there won’t be future political interference.

“This is important stuff. We’re about to be in another hurricane season and we’re going to have more natural disasters like pandemics and there don’t seem to be any consequences for manipulating the science,” he said, “and that puts real communities, real people at risk.”

The story is here.

AROUND THE AGENCIES:

EPA… The Environmental Protection Agency (EPA) is facing a lawsuit over its approval of a plan to release genetically modified mosquitoes in Florida and Texas.

Several groups, including the Center for Food Safety, the International Center for Technology Assessment and Friends of the Earth filed a notice of intent to sue on Friday. They allege that the EPA violated the law by failing to consult with wildlife agencies before determining that the mosquitoes will not pose risks to threatened species.

“EPA’s ‘no effect’ findings and failure to consult are arbitrary and capricious and violate the [Endangered Species Act] because they fail to follow the ESA’s mandated procedures, fail to use the best scientific and commercial data available, fail to consider significant aspects of the issue, and offer an explanation that runs counter to the evidence before the agency,” the groups claimed in their notice.

The EPA last month approved an experimental use permit for a company that wants to test the use of genetically engineered mosquitoes as a way to try to reduce mosquito populations and protect people from mosquito-borne illnesses.