Issues
Does the Appalachian Trail constitute National Park land, such that only Congress may grant a pipeline right-of-way underneath it?
These two consolidated cases ask the U.S. Supreme Court to determine whether the Mineral Leasing Act authorizes the United States Forest Service to grant a right-of-way under the national trail system. The U.S. Court of Appeals for the Fourth Circuit held that the Forest Service lacks authority to grant a right-of-way for a natural gas pipeline under the Appalachian Trail, which is administered by the National Park Service. The Forest Service and Atlantic Coast Pipeline, the respective Petitioners in each case, contend that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way under any trail that crosses through national forest land owned by the Forest Service. The Respondents, Cowpasture River Preservation Association et al., counter that the Appalachian Trail is National Park land and, accordingly, only Congress—not the Forest Service—may grant a right-of-way. The Court’s decision in these cases will influence future pipeline development, environmental preservation, and the economies of communities along the Appalachian Trail.
Questions as Framed for the Court by the Parties
Whether the United States Forest Service has the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.
Facts
On September 18, 2015, Atlantic Coast Pipeline, LLC (“Atlantic”) applied to the Federal Energy Regulatory Commission (“FERC”) to own, operate, and construct the Atlantic Coast Pipeline (“ACP” or “the pipeline”). Cowpasture River Preservation Ass’n et al. v. U.S. Forest Service at 5. This proposed underground natural gas pipeline would connect West Virginia and North Carolina with 604.5 miles of pipe. Id. at 3. Atlantic’s proposed route would cross under the Appalachian Trail and parts of the George Washington and Monongahela National Forests for 21 miles. Id. Building the pipeline would require clearing trees in a 125-foot right-of-way through the national forests, blasting mountain ridgelines to flatten the terrain, and digging a ditch to bury the pipeline. Id at 4.
To complete the pipeline, Atlantic requested FERC’s approval and petitioned the United States Forest Service (“USFS”) to grant a special use permit and right-of-way. Id. According to the National Environmental Policy Act (“NEPA”), FERC was required to prepare an environmental impact statement (“EIS”) that analyzed alternative pipeline routes and assessed various environmental concerns accompanying pipeline construction. Id. at 33. In a draft EIS, FERC stated that siting decisions for the pipeline were made in part to ensure that the pipeline crossed the Appalachian Trail on land acquired and administrated by the USFS because of the anticipated difficulties with securing Congressional approval, which would be required if the pipeline crossed National Park Service land. Id. at 7.
Initially, the USFS, which provided comments throughout the FERC proceedings, expressed concerns that FERC’s conclusions in the draft EIS were based on incomplete information, especially regarding the impact of pipeline construction on national forest resources, wildlife, and mitigation strategies. Id. at 8. The USFS was also concerned that the draft EIS did not explore alternative pipeline routes that would not cross through national forest land. Id. Nevertheless, four months after being presented with the draft EIS, the USFS adopted FERC’s final EIS and concluded that alternative routes did not offer a significant environmental advantage and were not economically practical. Id. at 11–12. On January 23, 2018, the USFS granted Atlantic the special use permit and right-of-way across the Appalachian Trail. Id. at 13.
On February 5, 2018, Cowpasture River Preservation Association et al. (“Cowpasture”) petitioned the U.S. Court of Appeals for the Fourth Circuit (the “Fourth Circuit”) to review the USFS’s decision to grant the special use permit and right-of-way. Id. The Fourth Circuit determined that it had jurisdiction to hear the challenge based on the Administrative Procedure Act and the Natural Gas Act. Id. Cowpasture argued that the USFS’s actions violated the National Forest Management Act (“NFMA”), NEPA, and the Mineral Leasing Act (“MLA”). Id. at 14. The Fourth Circuit agreed. Id. at 60. First, the Fourth Circuit determined that the USFS violated the NFMA because, among other reasons, the USFS failed to consider whether the proposed pipeline could be routed around national forest land. Id. at 30. Second, the Fourth Circuit concluded that the USFS violated NEPA by failing to adequately assess the environmental impacts associated with ACP construction. Id. at 41. And, finally, the Fourth Circuit concluded that the MLA did not authorize the USFS to grant a pipeline right-of-way across the Appalachian Trial. Id. at 59. Accordingly, the Fourth Circuit vacated the USFS’s decision and remanded the case back to the USFS for further proceedings. Id. at 60. The USFS and Atlantic petitioned for rehearing en banc, which the Court of Appeals denied on February 25, 2019. Cowpasture River Preservation Ass’n v. U.S. Forest Service at 5532.
Both the USFS and Atlantic subsequently petitioned the U.S. Supreme Court for certiorari, seeking to resolve whether the MLA authorized the USFS to grant a pipeline right-of-way across the Appalachian Trial within national forests. See Brief for Petitioners, United States Forest Service et al. (“USFS”) at 16. The Court granted certiorari on October 4, 2019, consolidated the two petitions, and scheduled oral argument for February 24, 2020. Id. at 2.
Analysis
THE USFS’S AUTHORITY TO GRANT A PIPELINE RIGHT-OF-WAY
The USFS and Atlantic (collectively, “Petitioners”) argue that the MLA authorizes the USFS to grant a pipeline right-of-way across national forest lands. Brief for USFS at 19–20; Brief for Petitioner, Atlantic Coast Pipeline, LLC (“Atlantic”) at 21–22. The Petitioners explain that, under the MLA, the appropriate agency head may grant a right-of-way through federal lands that are not within the National Park System. See Brief for USFS at 21. Here, the Petitioners continue, the right-of-way would cross the Appalachian Trail within the George Washington National Forest, which is federal land owned and administered by the Chief of the USFS. Brief for USFS at 20; Brief for Atlantic at 22. Further, the Petitioners point to the Weeks Act, in which Congress specified that lands in the George Washington National Forest “shall be permanently reserved, held, and administered as national forest lands.” Brief for USFS at 20–21; Brief for Atlantic at 26–27. Hence, the Petitioners contend, the USFS can grant a right-of-way through the George Washington National Forest, whether the Appalachian Trial exists within its borders or not. Brief for USFS at 20; Brief for Atlantic at 21.
Cowpasture responds that the USFS has no authority to grant a pipeline right-of-way under the Appalachian Trial because the Trail is land in the National Park System—even when it crosses through national forest lands. Brief for Respondents, Cowpasture River Preservation Association, et al. at 14. Cowpasture argues that the MLA explicitly does not apply to lands in the National Park System, which, Cowpasture notes, include the Appalachian Trail. Id. Cowpasture also asserts that the Trails Act—which officially established the Appalachian Trail in 1968—is a more recent and relevant statute than the Weeks Act, which only created the national forest system generally. Id. at 38–40. Cowpasture contends that the Trails Act clearly delegates administrative responsibilities for the Appalachian Trail to the Secretary of the Interior, who oversees the National Park Service, rather than the Secretary of Agriculture, who oversees the USFS. Id. at 40. Ultimately, Cowpasture concludes that Congress alone must legislate to grant a right-of-way across the Appalachian Trail because the Trail is “land in the National Park System.” Id. at 14.
LAND OWNERSHIP AND THE NATIONAL PARK SYSTEM
The Petitioners argue that the Trails Act does not divest landowners of their authority to administer the land over which the Appalachian Trail passes. Brief for USFS at 26; Brief for Atlantic at 20. The Petitioners assert that, as used in the Trails Act, a “trail” is distinct from the “land” over which it crosses. Brief for USFS at 25; Brief for Atlantic at 23. Looking back to the Appalachian Trail’s creation, the Petitioners contend that federal agencies like the USFS bore responsibility for acquiring lands to add to the Appalachian Trail, and that the Secretary of the Interior had to negotiate with those agencies for a right-of-way to establish the Trail in the first place. Brief for USFS at 30; Brief for Atlantic at 24–25. Given that an owner who grants a right-of-way still maintains ownership, the Petitioners assert that agencies like the USFS retain jurisdiction over the lands along the Trail route. Brief for USFS at 30–31; Brief for Atlantic at 26. Accordingly, the Petitioners continue, when Congress granted the Secretary of the Interior the authority to administer the Appalachian Trail as a “trail,” it did not confer administrative jurisdiction over federal, state, and private “lands” that the Trail crosses over. https://www.doi.gov/whoweare/secretary-bernhardtBrief for USFS at 28; Brief for Atlantic at 19. To bolster this assertion, the Petitioners note that the Trails Act prevents the Secretary of the Interior from regulating the Appalachian Trail without first consulting the other federal agencies that own land that the Trail crosses. Brief for USFS at 30; Brief for Atlantic at 25–26. The Petitioners thus contend that the lower court erroneously conflated trail administration with “jurisdiction over the lands through which that trail passes,” which would “effect a massive land transfer” of those lands to the National Park System. Brief for Atlantic at 19; see also Brief for USFS at 35. Therefore, Petitioners suggest, ultimate authority remains with the agencies who own the land under which the Appalachian Trail runs—in this case, the USFS. Brief for USFS at 34–35; Brief for Atlantic at 25.
Cowpasture counters that the Appalachian Trail and the land through which it runs are one and the same for administrative purposes, regardless of underlying land ownership. Brief for Respondents at 22. Cowpasture notes that the National Park Service exercises administrative jurisdiction over “a particular, defined area of land,” which includes the Appalachian Trail. Id. Cowpasture argues that attempts to divorce the “trail” from the “land” over which it crosses are misguided because such efforts fail to recognize that the Appalachian Trail and the underlying land are a single unit of the National Park System. Id. at 20–21. Cowpasture claims that this understanding is reinforced by the federal government’s frequent references to the Appalachian Trail as “land.” Id. at 19–20, 23–24. Additionally, Cowpasture contends that the Trails Act repeatedly refers to the Trail as “land” that is administered by the National Park Service. Id. at 24–25, 30. Cowpasture further argues that, while the land underlying the Appalachian Trail might vary in ownership, “[a]dminstration, not ownership, is what matters here,” because the National Park Organic Act—which created the National Park System—provides that the National Park System consists of any land administered by the Secretary of the Interior. Id. at 21, 35. In this regard, Cowpasture claims, the USFS does not administer the Appalachian Trail. Id. at 21. Ultimately, Cowpasture asserts that because the Department of the Interior is responsible for protecting “all federal lands dedicated to the Trail,” that agency, not the USFS, would need to approve any pipeline right-of-way that might affect the Trail. Id. at 27–28.
CONGRESSIONAL INTENT
The Petitioners argue that Congress intended for the USFS to permanently administer the land at issue as “national forest lands.” Brief for USFS at 21; Brief for Atlantic at 21. To bolster this claim, the Petitioners contrast language in the Trails Act with language in other environmental statutes to illustrate instances where Congress plainly intended to transfer administrative control from the USFS to the Secretary of the Interior. Brief for USFS at 22; Brief for Atlantic at 27. For examples of clear congressional intent, the Petitioners point to the Wild and Scenic Rivers Act (the “Rivers Act”) and the Blue Ridge Parkway Act. Brief for USFS at 22–24; Brief for Atlantic at 27–29, 31–32. With the Rivers Act, the Petitioners contend that Congress explicitly transferred administrative jurisdiction to the Secretary of the Interior over certain rivers and adjacent land on the same day that Congress enacted the Trails Act. Brief for USFS at 22–23; Brief for Atlantic at 27–28. And, the Petitioners note, with the creation of the nearby Blue Ridge Parkway seven days after enacting the Trails Act, Congress again explicitly directed the USFS to relinquish administrative jurisdiction wherever the Parkway crossed over national forest land. Brief for USFS at 23; Brief for Atlantic at 30–32. Compared with these statutes, the Petitioners conclude that the Trails Act’s silence proves that Congress intended that the USFS should retain jurisdiction of the entire George Washington National Forest. Brief for USFS at 24; Brief for Atlantic at 31.
Cowpasture responds that Congress intended that the Secretary of the Interior administer the entire Appalachian Trial. Brief for Respondents at 39–40. Cowpasture argues that, with the Trails Act, Congress unambiguously conferred administrative responsibility over the Appalachian Trial to the Secretary of Interior. Id. at 40. Cowpasture acknowledges that the USFS has broad administrative authority over “all federal lands held as national forest,” but argues that Congress specifically designated the Appalachian Trail for “more protective treatment as part of the Park System,” which demonstrates clear congressional intent to confer administrative authority to the Secretary of the Interior because “the specific governs the general.” Id. Further, Cowpasture maintains that comparing the Trails Act to the Rivers Act and the Blue Ridge Parkway Act misconstrues Congressional intent. Id. at 41. While conceding that the Trails Act does not plainly commit jurisdiction of the Appalachian Trail to the National Park System in the same way that Congress did with these two other statutes, Cowpasture contends that the Trails Act still empowers the Secretary of the Interior to take additional steps to assign Trail administration to the Park Service. Id. at 42. Furthermore, Cowpasture asserts that the Petitioners ignore key sections of the Blue Ridge Parkway Act that transfer administration of Parkway land, thus creating Park Service jurisdiction in the same way that Cowpasture argues the Trails Act did for the Appalachian Trail. Id. at 44. In the end, Cowpasture argues that Congress intended all three environmental statutes to accomplish the same objective: empowering the National Park Service, not the USFS, to administer designated federal lands. Id. at 42–43.
Discussion
ECONOMIC IMPACT
The United States Association of Journeymen and Apprentices (“AFL-CIO”), in support of the Petitioners, argues that requiring congressional approval before granting a pipeline right-of-way across the Appalachian Trail would discourage investments into infrastructure, prevent energy sharing, harm workers, and disrupt local economies. Brief of Amicus Curiae The United States Association of Journeymen and Apprentices, AFL-CIO (“AFL-CIO”), in support of Petitioners at 11. AFL-CIO contends that this additional hurdle would transform the pipeline-permit procedure into an “inherently political process” that produces a lack of regulatory clarity. Id. at 13–14. This lack of clarity will ultimately discourage companies from investing in energy infrastructure as these companies must “wager” each dollar invested in projects that cross any portion of any National Park Service trail. Id. at 13–14. Further, the National Association of Manufacturers (“NAM”) argues that pipelines like Atlantic’s are vital to domestic energy production and help to supply low-cost energy to remote areas. Brief of Amicus Curiae National Association of Manufacturers et al. (“NAM”), in support of Petitioners at 12–14. AFL-CIO adds that regulatory uncertainty would be priced into pipeline construction, which would increase energy costs for consumers. Brief of AFL-CIO at 22. AFL-CIO further argues that ACP construction is projected to create 17,240 jobs for skilled workers and generate over $1.8 billion in wages and fringe benefits. Id. at 16–17. Construction jobs are by their nature temporary, AFL-CIO says, which makes it essential to predict when permits will be granted to pipeline workers who rely on such opportunities. Id. at 17. Finally, AFL-CIO explains that ACP construction will benefit local economies by sourcing construction materials from local communities, and by generating an estimated $2.7 billion in economic activity and $25 million in tax revenue for State governments. Id. at 21. AFL-CIO argues that requiring congressional approval prior to permitting the pipeline constructs a “roadblock” that compromises these benefits to local economies. Id. at 20.
The Natural Resources Defense Council et al., in support of Cowpasture, responds that the economic impact concerns are overstated because many non-federal entities own land along the Appalachian Trail where many pipelines already exist and can continue to be constructed. Brief of Amicus Curiae National Resource Defense Council et al., in support of Respondents at 20–21. Vermont and other states (“Vermont”), also in support of Cowpasture, explain that the Trail is a “permeable system” of federal and non-federal lands, which provides the possibility that pipelines could be constructed elsewhere. Brief of Amicus Curiae States of Vermont et al., in support of Respondents at 7, 21–22. Further, Vermont contends that protecting the Trail creates many economic benefits for local communities. Id. at 29. Vermont adds that over 2 million people visit the Appalachian Trail each year and spend between $125 and $168 million during their visit, which directly benefits local economies. Id. Vermont continues that the communities adjacent to the Trail “tend to be small,” so the estimated $27 million spent directly in local economies has a big impact. Id. The City of Staunton, Virginia (“Staunton”), supporting Cowpasture, agrees, adding that communities like theirs rely on the Trail as a natural resource and that the recreation and tourism accompanying the Trail are essential to those economies. Brief of Amicus Curiae City of Staunton, Virginia et al. (“Staunton”), in support of Respondents at 5–9. Staunton continues that local economies develop “comprehensive plans” to minimize adverse impacts on natural resources, which protect their investments into tourism and outdoor recreation. Id. at 9. Therefore, a pipeline across the Appalachian Trail, Staunton argues, would disrupt the Trail experience and adversely affect local economies. Id. at 10–11.
ENVIRONMENTAL PROTECTION
Members of the House of Representatives (“the Members”), in support of the Petitioners, argue that constructing the pipeline will benefit the environment. Brief of Amicus Curiae Jeff Duncan and Sixty-One Additional Members of the House of Representatives ("Members"), in support of Respondents at 13–14. The Members contend that, compared to coal, natural gas is a more efficient energy source that emits less carbon dioxide. Id. at 14. Likewise, the Members argue that transporting natural gas via pipelines instead of trucks decreases the number of trucks on the road, thereby reducing the carbon dioxide emissions and accident rates associated with truck transportation. Id. at 14–15. The AFL-CIO adds that new pipelines such as the ACP are necessary to ensure that energy infrastructure remains modern, safe, and effective. Brief of AFL-CIO at 26–28. Current pipeline infrastructure, the AFL-CIO explains, is prone to corrosion and other structural weaknesses that increase the chances of leaks and ruptures. Id. at 28. By contrast, AFL-CIO note that new pipeline construction technology is better equipped to identify safety risks and prevent leaks and ruptures. Id. Further, AFL-CIO asserts that there is a growing demand for domestic energy production and that newly-built pipelines are a safer and more reliable means of energy transportation than current pipelines, trucks, and railroads, which would otherwise shoulder the transportation burden. Id. at 26–27.
Vermont responds that, as one of the “most biologically diverse temperate forests in the world,” protecting the Appalachian Trail must be prioritized over constructing pipelines. Brief of Vermont at 15. Vermont notes that the Trail is home to many species that depend upon the Trail as a “corridor” that allows them to travel to different ecosystems as environmental conditions change. Id. According to Vermont, constructing a pipeline across the Trail would harm these species and the environment as a whole. See id. at 14–15. Staunton adds that Atlantic’s proposed pipeline path would cross the recharge area of one of Staunton’s main water sources, creating grave concerns about mudslides and other threats to the local environment and community. Brief of Staunton at 12–13. Further, Staunton disputes the environmental benefits of natural gas, contending that energy producers should focus on renewable energy and move towards a zero-emissions policy, which are required to fight climate change. Id. at 11. Finally, the Commonwealth of Virginia (“Virginia”), in support of Cowpasture, asserts that the demand for natural gas is projected to decrease over the next several years, contrary to the AFL-CIO’s contention. Brief of Amicus Curiae Commonwealth of Virginia (“Virginia”), in support of Respondents at 5. Further, Virginia points out that technological advances have reduced (and will continue to reduce) costs associated with renewable energy, which reduces the demand for natural gas and its accompanying infrastructure. Id.
Written by
Edited by
Additional Resources
- Noah Sachs, Can the Appalachian Trail Block a Natural Gas Pipeline?, The American Prospect (Aug. 14, 2019).
- Greg Stohr and Ellen M. Gilmer, Dominion’s Atlantic Coast Pipeline Gets Supreme Court Hearing, Bloomberg Law (Oct. 4, 2019).
- Michael Martz, Supreme Court Showdown Set Over Pipeline Crossing of Appalachian Trail, Richmond Times-Dispatch (Oct. 4, 2019).