The day after pepper spray was deployed on a large crowd of protesters outside Richmond police headquarters and a woman was arrested, Police Chief William Smith said his officers had shown “great restraint” as protesters threw rocks and other objects at them.
But the police department’s account of what happened as hundreds massed outside headquarters Sunday night and Monday morning was sharply contradicted by one eyewitness.
The witness, Jimmie Lee Jarvis, has been attending and recording several recent protests in Richmond and reviewing video of the events. He said that although the large crowd was angry and hurling obscenities at the police on Sunday night, he did not see anyone throw anything at officers until after they released pepper spray into the crowd.
“It turned violent,” Jarvis said. “But the first act of violence was from the police.”
The police department released its description of the protest at about 5:15 p.m. on Monday, about 90 minutes before a crowd of about 200 people began to march from Monroe Park to City Hall for the 18th day of demonstrations in the city.
The source of much of the anger among protesters over the past two nights has been fueled by an incident on Saturday night when an officer drove an SUV into a crowd of protesters blocking his path at the Robert E. Lee statue. The event prompted Mayor Levar Stoney to ask the city’s top prosecutor to investigate the incident and the police department to place the officer on administrative leave.
Jarvis said that the police department’s account of how the protest unfolded outside headquarters on Sunday night into Monday morning “was inaccurate on almost every level.”
In the police statement, Smith said he will hold his officers accountable for their conduct during the continued demonstrations, but he said that under no circumstance would he “allow violent protest to continue to harm our community.”
“This demonstration escalated into rioting and violence that lasted throughout the night and into the early morning hours,” the chief is quoted as saying in the news release issued Monday afternoon. “Last night’s actions far exceeded what is considered to be lawful First Amendment activity. Organizers were intent on provocation and creating mayhem by throwing rocks and other objects at the officers on duty, who showed great restraint in response to these attacks.”
According to the statement, several city vehicles, including dump trucks, were damaged significantly. Several privately owned buildings in the area also were vandalized and “numerous dumpster fires were set with the intent to destroy public and private property.”
“The escalating violence prompted multiple declarations of an unlawful assembly, which was broadcast to the crowd several times with instructions to disperse,” the news release said. “After warnings were disregarded, a pepper spray fogger was deployed.”
One person was taken into custody after crossing the police line after repeated warnings not to do so, the news release said. When a Richmond police officer tried to stop her, the suspect struck the officer in the head with a bullhorn, the authorities said.
Michaela G. Hatton, 22, of Richmond, was charged with felony assault on a law enforcement officer and conspiracy to incite a riot. During the booking process, Hatton refused to provide her personal information, as required by law, the police statement said. At her hearing Monday, the judge banned her from any actions tending to incite criminal activity.
Hatton’s attorney, Sara Gaborik, declined to comment on Monday.
Richmond police said three officers were injured during the clash. Virginia State Police and Henrico County police officers also provided support.
On Monday night, the state police posted the following on their Facebook page: “Among the #VSP injured, was a sergeant who was transported to VCU Medical Center to be treated for a leg injury after being struck by a large piece of asphalt thrown at him by a protester. A trooper was struck in the head with an object. Fortunately, his helmet took the brunt of the impact and he suffered only a minor injury.”
Jarvis, who was outside the police department from about 8:45 p.m. Sunday until 2:45 a.m., acknowledged that the crowd was hostile and said he could not see everything that happened from his vantage point.
But he said he saw officers “very eagerly deploying pepper spray at people who were not doing anything” other than angrily yelling and cursing at them.
“I saw many protesters who were vomiting, crying,” Jarvis said. “I saw people kind of collapsing on the ground.”
After the pepper spray, Jarvis said, he saw people throwing water bottles, a jug and water balloons, most of which missed officers, although a full can of soda or beer struck an officer’s shield. He also saw people throwing broken bricks or cinderblocks at windshields of dump trucks.
He also said he saw two officers grab the woman to arrest her and that her bullhorn “made a connection with an officer,” but he described it as a glancing blow off the officer’s forearm. She then was pepper sprayed directly in the face, he said.
Jarvis also said that more than two hours later, at about 1:30 a.m., police released tear gas cannisters into the crowd, and some of the demonstrators threw them back at officers.
The police statement noted that the chief understands that the overwhelming majority of protesters are peaceful and lawfully exercising their rights.
“We fully support peaceful demonstrations, but we will not tolerate the violent assault of police officers, the threats to law-abiding members of our residential and business community or the willful destruction of city and private property,” Smith said.
“I expect my officers to remain patient and professional during this trying time, and will hold accountable those who do not uphold this standard. But demonstrators must practice non-violence, and under no circumstance will I allow violent protest to continue to harm our community.”
As demonstrations continued into Monday night, the group of about 200 people marched from Monroe Park along Franklin Street to City Hall. Once they reached City Hall, organizers spoke of the importance of defunding police and emphasized the importance of unity and supporting black and LGBTQ communities.
During the evening, organizers started call-and-response chants demanding justice and for protesters to say the names of victims of police brutality.
As they left City Hall and made their way along Main Street, organizers chanted “Say their name.” To which the crowd responded: “Which one?”
About 200 people or more later gathered outside police headquarters, with some shining laser pointers toward officers.
Her body shaking, her eyes wide and wet, Sierra Shoosmith sat on a curb at the intersection of North Allen and Monument avenues Saturday night.
She was trying to make sense of what she had just seen: A Richmond police officer had driven a marked SUV through gathered protesters.
No one appeared seriously injured, but Shoosmith didn’t know that. She was in shock, according to a field medic who treated her at the scene.
“They’re supposed to protect us,” she said, her voice shaking nearly as much as her body. “I don’t know; my whole worldview just kind of rolled upside down in that moment.”
Another protester, whom she didn’t know, rubbed Shoosmith’s shoulder and said: “This is it. This is why we’re here.”
Shoosmith was among thousands of demonstrators who had been marching, at that point on Saturday night, for 16 straight nights in Richmond protests sparked by the killing of George Floyd by Minneapolis police. Protests continued Sunday and Monday nights, further fueled by incidents with Richmond police.
Shoosmith said police brutality was something she unquestionably opposed, but had never seen in person until Saturday.
“Like I know it’s real, but seeing it in front of your face is totally different,” she said.
Richmond police said the officer who was driving the SUV “was reportedly assaulted through an open window” and that protesters had trapped the vehicle and damaged it. The department said some of the protesters involved could face criminal charges.
But elements of the department’s timeline appeared to conflict with videos of the incident posted to social media, as well as the accounts of two Richmond Times-Dispatch reporters who witnessed the incident. Police did not respond to detailed questions from the Richmond Times-Dispatch about the incident on either Sunday or Monday.
Two prominent defense attorneys and the ACLU of Virginia’s legal director criticized the officer’s actions, saying that driving through the protesters constitutes use of deadly force and could amount to criminal assault.
Steven D. Benjamin and Betty Layne DesPortes, law partners who have each served as experts in their field on various boards, acknowledged that they didn’t have all the facts of the incident, but had reviewed the social media videos provided by police in a news release.
“We have seen no reported account, including the statement of the RPD, that justifies what we saw in the videos we’ve reviewed,” they said in a joint statement.
“The department is wrong that it can use deadly force where officers’ lives are not threatened,” they added. “A civilian doing the same thing would have been charged with some degree of criminal assault, and the felony of leaving the scene. The department is handling this in the least transparent and most aggravating way possible. It continues to frustrate justice, and it has failed to protect the constitutional right to protest. The department has used unwarranted force, and now even threatens charges related to this incident, thus discouraging any witness statements or complaints.”
In a tweet, the ACLU of Virginia said: “There’s no justified reason that this is necessary. Officers can no longer hide behind the lie that they’re serving & protecting. We’re calling for an investigation to hold the officers involved accountable.” In a letter sent Monday to the Richmond mayor, police chief and commonwealth’s attorney, the ACLU said it was yet another example of the “escalation of violence against protesters over the past two weeks.”
Eden Heilman, the organization’s legal director, said the incident “looks like use of excessive force.”
“This absolutely has to be investigated, preferably by an independent prosecutor, and I would think that this would be something where both disciplinary action as well as criminal charges should be on the table,” Heilman said.
On Sunday morning, Richmond Mayor Levar Stoney tweeted that he has asked the city’s top prosecutor, Colette McEachin, to investigate what happened, along with other recent incidents. He also asked the that the Richmond Police Department place the officer who was driving on leave, but it’s unclear whether police did so.
Twice last week, area police arrested two men after similar run-ins with protesters.
Early Friday, Richmond police detained several people equipped with assault-style rifles, handguns, ammunition and body armor after confronting protesters at the Robert E. Lee statue on Monument Avenue — the same location where the police officer drove through protesters the next night.
About 12:55 a.m. Friday, officers in the area of the Lee circle saw several pickup trucks approach a group that had dismounted their bicycles in the traffic lanes, police said.
“Words were exchanged between the individuals and the drivers of the pickup trucks,” police spokeswoman Amy Vu wrote in an email. “One pickup truck sped off and then another pickup truck ran over a bicycle while fleeing the area.”
Officers stopped three separate trucks in connection with the incident. One man was arrested and charged with possessing a firearm as a felon.
On June 7, a Hanover County man who claimed ties to the Ku Klux Klan was accused of driving a truck through protesters on Lakeside Avenue in Henrico County, near Vale Street. Authorities said Harry H. Rogers recklessly drove onto the median to get to the march, revved his engine at marching protesters and drove through the crowd, running over one man’s foot and causing a women to jump on the hood of his truck to avoid being hit.
Rogers, 36, has been charged with attempted malicious wounding, felony vandalism, and assault and battery. He is being held without bail.
In all three of the incidents, cyclists were blocking traffic from reaching marchers on foot. On Saturday, the police vehicle had slowly moved forward to the blockade of bicyclists, who had been blocking the intersection at the Lee statue for hours.
“Intentionally striking a person with a vehicle is routinely charged as a criminal assault, even when the driver’s actions are a response to being blocked by a pedestrian or cyclist,” Benjamin wrote in an email. “The only defense is that the use of that degree of force was reasonably necessary for self-defense. While Virginia law specifies certain instances when emergency vehicles being operated under emergency conditions and using emergency lights and a siren may disregard certain traffic regulations, none of those exceptions permit emergency vehicles to strike pedestrians or cyclists.”
The police SUV had its blue flashing lights on initially, but they were switched off and a floodlight turned on before the encounter. No siren was used, and officers could not be heard giving instructions to protesters.
DesPortes wrote in an email that the 4th Circuit Court of Appeals “has repeatedly held that ‘a vehicle driven directly at a law enforcement officer constitutes a deadly weapon.’ The same principle should apply when an officer drives a vehicle directly at a person — it is the use of deadly force.”
Heilman, with the ACLU, said uneven applications of law are why police reforms have come to be such a rallying cry for protests across the country.
“It is easier for a person to be held criminally responsible for injuring a police officer than it is vice versa,” she said. “The culture for a very long time has been all around the country that police officers, for better or for worse, have been largely immune from liability or culpability criminally for certain conduct. As that shifts, it will be interesting to see how police departments respond.
“Why is it OK for one particular group of society, the police, to do some sort of behavior that it’s not OK for other people to do?” she added. “Certainly what we’re seeing across the country, in some jurisdictions, is that police officers are starting to be held criminally responsible for conduct, which previously they weren’t.”
In New York, two Buffalo police officers were charged with assault for pushing a 75-year-old man during protests, according to The New York Times.
“Normally that probably wouldn’t have risen to the level of criminal arrest. But it is now,” Heilman said. “All of this should be a wake-up call. Both to individual officers, as well as departments about how they are training their officers. As there is more accountability and increased transparency and better policy, then all of that will result in better training and that would trickle down.”
Mera Carle, a medic who has been offering support to protesters nearly every night since the protests began, said Saturday wasn’t the first time she had seen vehicles “weaponized ... against us” by police.
On May 30, the second night of unrest in Richmond, Carle said she watched police drive SUVs onto the medians of Monument Avenue several times as hundreds of people marched there. She caught the second occurrence on video.
“I made up my mind after the first time it happened that filming would be as important as the immediate first aid,” she said. “No one was run over, but people were hit. I was messaged on social media by someone saying I saved their life.”
Carle estimated that she has used $400 to $500 in first aid supplies since the protests began. Most treatments have been for tear gas, but others include sprains from running from police and panic attacks. She said the rushing vehicles triggered flashbacks to the deadly Unite the Right in Charlottesville in 2017.
“You can see it in their eyes,” Carle said. “These police tactics looked identical to what was used to result in the murder of Heather Heyer.”
Alex Fields Jr. was found guilty of first-degree murder and hate crimes after he drove into the Charlottesville crowd, killing Heyer. He was sentenced to life in prison, plus 419 years.
The sun struggled to break through clouds on the 18th day of unrest in Richmond, three months after the COVID-19 pandemic shuttered schools, but Erin Clark couldn’t stop smiling.
Erin, 11, should have been walking across the auditorium stage with 65 others at George Washington Carver Elementary School, where administrators had planned to pass out cupcakes piled high with icing and snap photos of families beaming before signs celebrating the Class of 2020.
Instead, she stood tall along Calhoun Street in the white ankle-length dress her mother had bought for the occasion, clutching a bundle of balloons in one hand and waving with the other to dozens of Carver teachers, administrators and school volunteers shouting their love and support during a parade past the students’ homes Monday.
“It feels mad good,” Erin said of reaching the first finish line of her academic career. “I did it!”
School leaders couldn’t cure COVID-19 or end the police brutality that led protesters across the country to the streets, but they were able to bring the cupcakes, said school Principal Tiawana Giles, who reflected on the short mile between the school and a towering monument to Confederate Gen. Robert E. Lee that has served as the epicenter for Black Lives Matter protests in Richmond.
The proximity matters, especially for students of color born in the aftermath of the Great Recession, who entered school as police killings of black people sparked a movement that has gained broader support in recent weeks following the death of George Floyd in Minneapolis.
“My kids experience [racism] every day,” Giles said. “They are used to being looked at differently ... being seen as the kids from Gilpin Court. But they have the mentality of ‘That’s not who I am.’”
Now more than ever, the educators and volunteers of Carver, named for a pioneering African American scientist, wish they could wrap arms around the students, more than 90% of whom are black.
They couldn’t give the kids a packed auditorium, blue robes and hats with white tassels, speeches from local officials or the school’s signature cookout, but they brought as much joy and noise as they could muster.
“Today is about them, and about letting them know they are loved,” volunteer Clarissa Beasley said as she took a break from inflating the red, white and blue balloons she had originally bought for a Fourth of July celebration.
She decided to use them on cars driven by STEP reading program volunteers and members of Victory Life Fellowship Church instead.
“Nothing is ever guaranteed in this life; let us celebrate them now,” said Della Wilson, a STEP volunteer who used to work as a preschool aide at the school, as the group prepared to leave the school parking lot.
Dozens of drivers honked and cheered their way in a loop around Carver before streaming into Gilpin Court, blowing bubbles and shaking pompoms at families who had streamed out onto the sidewalks to film the cars and greet people they have been missing since schools closed in March.
Giles hopped in and out of a sedan to love on students and families while trying to maintain some semblance of social distance. Teachers have been calling at least five families a day to keep up with them during the closure, she said, but it’s a struggle. And everyone needs a hug.
Mattie Murray, who volunteers with the students, said it was a relief just to lay eyes on children who have been weighing heavier on her heart with each passing day.
“This is a trying time for our children and not just the ones in Gilpin,” she said as the car passed Greater Mount Moriah Baptist Church. “They need care and compassion and for their questions to be answered honestly.”
Murray said she related to students’ lived experiences, as a black woman who integrated a South Carolina school in the eighth grade.
She shouted at a trio of girls in bright T-shirts, eating freeze pops and waving.
“My hope is that this will truly be a time for honest conversations, for exploring the hurtful things we feel and what we have carried,” she said. “The truth is that some of us are more privileged than others.”
Giles said the support in January of Monument Avenue preservationists who helped raise more than $100,000 for a foundation formed in the aftermath of a cheating scandal that rocked the school two years ago is a sign of progress.
The money has gone in part to fund technology improvements at the school, such as buying computers and smart boards.
Challenges remain. About 1 in 3 students who were in the fourth grade last year read on grade level, according to state data. Scores are not available for the current year; students were unable to take accountability tests during the pandemic.
Erin’s mother, Nicole Wright, said life has felt heavy lately, but she gave thanks for Monday’s visit.
“What they did for us was just beautiful,” said Wright, hands clasped, as she beamed at Erin. “These kids have taken the hardest hit in all this. Their whole lives just stopped, and they’re just getting started.”
Giles grinned in the back seat as the sedan pulled back into the Carver parking lot.
A mile away, the Lee statue sat coated in the language of the unheard. Woven amid the graffitied profanities and proclamations: “Trayvon looked just like me.”
But also: “The world is watching.”
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WASHINGTON — The Supreme Court ruled Monday that a landmark civil rights law protects gay, lesbian and transgender people from discrimination in employment, a resounding victory for LGBT rights from a conservative court.
The court decided by a 6-3 vote that a key provision of the Civil Rights Act of 1964 known as Title VII that bars job discrimination because of sex, among other reasons, encompasses bias against people because of their sexual orientation or gender identity.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Neil Gorsuch wrote for the court. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The decision was a defeat not just for the employers, but also the Trump administration, which argued that the law’s plain wording compelled a ruling for the employers. Gorsuch, a conservative appointee of President Donald Trump, concluded the opposite.
He was joined in the majority by Chief Justice John Roberts and the court’s four liberal members. Justice Brett Kavanaugh, Trump’s other Supreme Court pick, dissented, along with Justices Samuel Alito and Clarence Thomas.
“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” Alito wrote in the dissent. “Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.‘”
Kavanaugh wrote in a separate dissent that the court was rewriting the law to include gender identity and sexual orientation, a job that belongs to Congress. Still, Kavanaugh said the decision represents an “important victory achieved today by gay and lesbian Americans.”
The outcome is expected to have a big impact for the estimated 8.1 million LGBT workers across the country because most states don’t protect them from workplace discrimination. An estimated 11.3 million LGBT people live in the U.S., according to the Williams Institute at the UCLA law school.
Gerald Bostock, a gay county government worker from Georgia whose lawsuit was one of three the Supreme Court decided Monday, said no one should have to be “fearful of losing their job because of who they are, who they love or how they identify. And the justices have now made sure that we won’t have to worry about that.”
John Bursch, who argued the appeal from a Michigan funeral home owner against a fired transgender employee, said, “Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle. Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts.”
But Monday’s decision is not likely to be the court’s last word on a host of issues revolving around LGBT rights, Gorsuch noted.
Rights groups have said they will challenge the administration’s effort to roll back anti-discrimination protections for transgender people in health care. Lawsuits are pending over transgender athletes’ participation in school sporting events, and courts also are dealing with cases about sex-segregated bathrooms and locker rooms, a subject that the justices seemed concerned about during arguments in October. Employers who have religious objections to employing LGBT people also might be able to raise those claims in a different case, Gorsuch said.
“But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,” he wrote.
The cases were the court’s first on LGBT rights since Justice Anthony Kennedy’s retirement and replacement by Kavanaugh. Kennedy was a voice for gay rights and the author of the landmark ruling in 2015 that made same-sex marriage legal throughout the United States. Kavanaugh generally is regarded as more conservative.
The Trump administration had changed course from the Obama administration, which supported LGBT workers in their discrimination claims under Title VII.
During the Obama years, the federal Equal Employment Opportunity Commission had changed its longstanding interpretation of civil rights law to include discrimination against LGBT people. The law prohibits discrimination because of sex, but has no specific protection for sexual orientation or gender identity.
Democratic presidential contender Joe Biden, Obama’s vice president, praised the decision on Twitter as “another step in our march toward equality for all. The Supreme Court has confirmed the simple but profoundly American idea that every human being should be treated with respect.”
In recent years, some lower courts have held that discrimination against LGBT people is a subset of sex discrimination, and thus prohibited by the federal law.
Efforts by Congress to change the law to explicitly bar job discrimination on the basis of sexual orientation and gender identity have so far failed.
The Supreme Court cases involved two gay men and a transgender woman who sued for employment discrimination after they lost their jobs.
Aimee Stephens lost her job as a funeral director in the Detroit area after she revealed to her boss that she had struggled with gender most of her life and had, at long last, “decided to become the person that my mind already is.” Stephens told funeral home owner Thomas Rost that following a vacation, she would report to work wearing a conservative skirt suit or dress that Rost required for women who worked at his three funeral homes. Rost fired Stephens.
The 6th U.S. Circuit Court of Appeals in Cincinnati, Ohio, ruled that the firing constituted sex discrimination under federal law.
Stephens died last month. Donna Stephens, her wife of 20 years, said in a statement that she is “grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity.”
The federal appeals court in New York ruled in favor of a gay skydiving instructor who claimed he was fired because of his sexual orientation. The full 2nd U.S. Circuit Court of Appeals ruled 10-3 that it was abandoning its earlier holding that Title VII didn’t cover sexual orientation because “legal doctrine evolves.” The court held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
That ruling was a victory for the relatives of Donald Zarda, who was fired in 2010 from a skydiving job in Central Islip, N.Y., that required him to strap himself tightly to clients so they could jump in tandem from an airplane. He tried to put a woman with whom he was jumping at ease by explaining that he was gay. The school fired Zarda after the woman’s boyfriend called to complain.
Zarda died in a wingsuit accident in Switzerland in 2014.
In a case from Georgia, the federal appeals court in Atlanta ruled against Bostock, a gay employee of Clayton County, in the Atlanta suburbs. Bostock claimed he was fired in 2013 because he is gay. The county argues that Bostock was let go because of the results of an audit of funds he managed.
The 11th U.S. Circuit Court of Appeals dismissed Bostock’s claim in a three-page opinion that noted the court was bound by a 1979 decision that held “discharge for homosexuality is not prohibited by Title VII.”
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The U.S. Supreme Court has struck down a Richmond appeals court ruling that would have blocked construction of the Atlantic Coast Pipeline beneath the Appalachian Trail in the Blue Ridge Mountains.
The court announced Monday that it had voted 7-2 to overturn the 2018 ruling by the 4th U.S Circuit Court of Appeals, based in Richmond. The ruling will allow construction of the 42-inch-wide natural gas pipeline to tunnel 600 feet beneath the national scenic trail where it crosses land managed by the U.S. Forest Service in the George Washington National Forest.
The decision removes one obstacle — but not all — for Dominion Resources and its partners to cross the Blue Ridge between Augusta and Nelson counties and complete the $8 billion, 600-mile project and connect gas shale fields in West Virginia to markets on the coast of Virginia and North Carolina.
The company suspended construction 18 months ago, after the 4th Circuit threw out a separate federal permit on protection of endangered and threatened wildlife species in the pipeline’s path.
“This is not a done deal,” said Greg Buppert, senior attorney for the Southern Environmental Law Center, which represented the Cowpasture River Preservation Association, the Sierra Club and other environmental organizations opposed to the pipeline. “The project still has a lot of obstacles in front of it.”
The decision sends the case back to the 4th Circuit, which vacated the Forest Service permit for the project for a series of defects — such as inadequate review under federal law of erosion and landslide threats that the pipeline’s construction posed in the mountainous national forest.
“Today’s decision doesn’t even fix the Forest Service permit,” Buppert said.
The Forest Service said last week that it is preparing a new environmental impact statement for the project that Dominion said would allow the issuance of a new permit that addresses the other issues the 4th Circuit raised in its ruling in December 2018.
“We have been working diligently with the U.S. Forest Service on the other issues identified by the court,” said Ann Nallo, a spokeswoman for the pipeline company and Dominion, its majority owner. “This issue at the Supreme Court was the only one that wasn’t procedural or about providing additional information, since the heart of the question was which agency had the authority.”
Justice Clarence Thomas, who wrote the 18-page majority opinion, dismissed as “circuitous” the legal arguments by environmental organizations that the land beneath the trail is part of the National Park System and that the Forest Service lacks authority to permit the gas pipeline to cross it on national forest land.
Thomas said the National Park Service’s only role is to administer the 2,200-mile trail as an easement across land that Congress explicitly granted to the Forest Service more than a century ago.
“Easements are not land, they merely burden land that continues to be owned by another,” he said in the opinion, joined in whole or part by all of his colleagues except Justices Sonia Sotomayor and Elena Kagan, who dissented.
The 21-page dissent asserts that the Appalachian Trail became part of the National Park System administered by the Park Service in a series of federal laws enacted from 1968 to 1973, which give Congress alone the authority to allow a natural gas pipeline to cross the national scenic trail on federally owned land.
“By contrast, today’s Court suggests that the trail is not ‘land’ in the Park System at all,” Sotomayor wrote in the dissent.
The decision represents a major victory for Dominion, which said the court “upheld longstanding precedent allowing infrastructure crossings of the Appalachian Trail” while not disturbing the trail or those who use it.
“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,” Nallo said. “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 Appalachian Trail Conservancy, a private steward of the national scenic trail, has no position on the pipeline, but President and CEO Sandra Marra said the Supreme Court ruling “would keep in place the cooperative management system that tens of thousands of Appalachian Trail volunteers, professionals and agency partners have collaborated under for decades.”
The majority opinion raised concerns about the effect of the 4th Circuit ruling on federal control over pipeline crossings of state and privately owned property crossed by national scenic trails.
“What will not change, no matter how this decision impacts pipeline permitting rights, is the [conservancy’s] dedication to protecting, managing and advocating for the [Appalachian Trail] in coordination with our federal, state and regional partners,” Marra said in a statement.
West Virginia Attorney General Patrick Morrisey led an 18-state coalition in opposition to the 4th Circuit ruling, which he warned would jeopardize his state’s oil and gas industry by creating a nearly impenetrable barrier to supplying energy to markets east of the Blue Ridge.
“The Supreme Court’s decision will help put back to work thousands of men and women,” Morrisey said Monday.
Construction of the Atlantic Coast Pipeline depends on new permits from the Forest Service; the U.S. Fish & Wildlife Service (which already has issued two permits rejected by the 4th Circuit); the National Park Service, which would have to permit the crossing beneath the Blue Ridge Parkway; and the U.S. Army Corps of Engineers, which governs a nationwide water quality permit struck down this year by a federal court in Montana.
The 4th Circuit also vacated a state air pollution permit last year that would have allowed construction of a natural gas compressor station next to a historic African American community at Union Hill in Buckingham County.
At the same time, environmental groups are awaiting action by the U.S. Court of Appeals, D.C. Circuit, on their lawsuit challenging the permit the Federal Energy Regulatory Commission issued for the pipeline project. Environmentalists recently petitioned the commission to revise its environmental impact statement to reconsider the need for the natural gas that the pipeline would transport and the damage to the environment that the project would cause.
“It’s been six years since this pipeline was proposed — we didn’t need it then and we certainly don’t need it now,” Dick Brooks said for the Cowpasture River Preservation Association, based in the Virginia Highlands.
“Today’s decision doesn’t change the fact that Dominion chose a risky route through protected federal lands, steep mountains, and vulnerable communities.”