Atlantic Coast Pipeline v. Cowpasture River Preservation Association

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Environmental Law.png

Argument: February 24, 2020

Petitioner Brief: Atlantic Coast Pipeline, LLC

Respondent Brief: Cowpasture River Preservation Association, et al.

Decision: TBA

Court below: United States Court of Appeals for the Fourth Circuit

Court below: United States Court of Appeals for the Fourth Circuit

Can the Appalachian Trail block a major natural gas pipeline project?

A group of energy companies have set out to build a large natural gas pipeline along the mid-Atlantic region. They say it will strengthen the economy, lower energy costs, and bring cleaner electricity to Virginia and North Carolina. 

It’s a controversial project. The pipeline will run from West Virginia through Virginia and into North Carolina. Construction will require digging through rural areas and the use of eminent domain against mostly less-affluent populations. The pipeline will expose its neighbors to a risk of leakage, and three compressor stations along the route will emit toxic gases. 

Atlantic Coast Pipeline Final

Apart from the neighboring landowners’ complaints, environmental groups are unimpressed by the investors’ claims to bring cheaper natural gas to the region. Environmentalists claim the country and world should be focused on energy sources that do not emit greenhouse gases.

The Appalachian Trail

People opposed to the pipeline could find their savior in the form of a hiking path. The Appalachian Trail is “the nation’s premiere long distance hiking trail.” It’s been around for nearly a century, providing hiking challenges, inspiring awe, and bringing national attention to a number of determined individuals who have completed the entire route. The trail spans almost the entire east coast, from Georgia to Maine. The federal government recognized the trail in 1968, leaving the current landowners in possession but giving responsibility of “administering” the trail to the Secretary of the Interior. 

Right to cross the Trail?

The Atlantic Coast Pipeline is set to cross the Appalachian Trail, but that will depend on the result of the current case before the Supreme Court. 

Environmental groups challenging the pipeline project argue the developers cannot get a permit to cross the Appalachian Trail. The developers did, in fact, receive a number of approvals and permits for the project, but the challengers argue the one allowing the pipeline to cross the Appalachian Trail is invalid.

The U.S. Forest Service gave the developers the approval in question. The Mineral Leasing Act allows the U.S. Forest Service to grant mineral rights through the national forests. Since the Appalachian Trail runs through national forest land, the developers went to the U.S. Forest Service to get approval. They received the right for the pipeline to pass through twenty-one miles of national forest land and to cross the Appalachian Trail. 

But the environmental groups have a different interpretation of federal law. They argue the Appalachian Trail is a corridor of land that is actually distinct from the national forest land. Thus, administration of the Trail land does not lie with the U.S. Forest Service. It’s actually controlled by the Park Service, the challengers argue, and the Park Service doesn’t have any power to grant mineral leasing rights. Not like the U.S. Forest Service does under the Mineral Leasing Act. Without an act of Congress, then, under the challengers’ view, the pipeline project as proposed has an uncertain future.

The environmental groups stand on top after convincing the Fourth Circuit Court of Appeals that they’re right.

Environmental groups’ argument (Respondents)

Here is how the environmental groups make their case:

In 1968, the National Trails Act gave the power to administer the Appalachian Trail to the Secretary of the Interior. The Secretary of the Interior gave the power to the Park Service. The Park Service controls all land in the National Park System, as defined by the Organic Act.

[T]he fundamental purpose of the System units . . . is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 

54 U.S.C. § 100101(a).

Because the Park Service controls the Appalachian Trail, the Trail (and its land corridor) is part of the National Park System. Under the Trails Act, the authority who can grant easements and rights-of-way through the Trail must follow the laws governing the national park system and/or the national forest system:

The Secretary of the Interior or the Secretary of Agriculture as the case may be, may grant easements and rights-of-way upon, over, under, across, or along any component of the national trails system in accordance with the laws applicable to the national park system and the national forest system, respectively . . . 

16 U.S.C. § 1248(a). 

This might actually point back to the Mineral Leasing Act, which is the law applicable to the national forest system. However, in the challengers’ view, the Mineral Leasing Act -- which can give a right-of-way for a gas pipeline in certain situations -- actually carves out an exception for lands in the National Park System. Dead end. No pipeline through National Park System land.

Atlantic Coast Pipeline’s argument (Petitioner)

Atlantic Coast Pipeline, the company controlling the project, argues there’s nothing in federal law that takes the administration of forest land away from the U.S. Forest Service. In fact, the same law the challengers are citing purporting to take the Trail territory away from the Forest Service, the National Trails Act, actually specifically provides that jurisdiction of the lands is preserved in the federal agencies which previously had them:

Nothing contained in this chapter shall be deemed to transfer among Federal agencies any management responsibilities established under any other law for federally administered lands which are components of the National Trails System.

16 U.S.C. §1246(a)(1)(A). 

The Forest Service has controlled the forests for more than a century, and the incorporation of the Trail into federal administration doesn’t change the Forest Service’s management responsibilities.

Plus, Atlantic Coast Pipeline argues, there’s even a provision in the National Trails Act that requires the Park Service to get a right-of-way from the Forest Service so that the Trail can pass through the George Washington National Forest. Clearly, then, the act intended for the Forest Service to still control the forest and all the land, including the land on which the Trail sits. From Petitioner’s brief:

Neither the designation of the Trail nor the right-of-way later granted by the Forest Service yielded more than a right-of-way or divested the Forest Service of jurisdiction over lands deemed “national forest lands” for over a century. 

The Supreme Court will hear arguments on February 24, 2020.

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