This winter the U.S. Supreme Court will examine legal questions connected to the Atlantic Coast Pipeline, thrusting the pipeline project into the national spotlight and intensifying the accompanying debate.
The focus of the court’s inquiry — the Appalachian Trail — provides a fascinating counterpoint to the proposed pipeline. The trail and the pipeline are both long and winding paths, but one of them is a wooded trail envisioned as a tool for harmonizing humans’ relationship with nature, whereas the other is a metallic tube that embodies our mastery of it.
In February, the court will review the decision by the 4th Circuit Court of Appeals in Atlantic Coast Pipeline v. Cowpasture River Preservation Association. In the Cowpasture case, the 4th Circuit overturned the National Forest Service’s decision to grant a permit that would enable construction of the pipeline underneath the Appalachian Trail.
The controversy described in Cowpasture is at least a decade in the making.
Dominion Energy and Duke Energy provide electricity to millions of Virginians and North Carolinians, along with residents of neighboring states. The two utilities want to build the 602-mile Atlantic Coast Pipeline in order to transport natural gas from West Virginia across the commonwealth to major markets in eastern Virginia and North Carolina.
The utilities and their supporters emphasize the relative merits of natural gas as a power source, and they claim the pipeline will facilitate a transition away from coal and its comparatively higher carbon emissions.
Opponents argue that the project will harm the environment and perpetuate an unhealthy reliance on fossil fuels. They also claim that building the pipeline will infringe on private property rights.
The Cowpasture case arose because the proposed route for the pipeline, through the George Washington and Monongahela National Forests and across the Appalachian Trail, necessitates review and approval by the federal government. The specific question raised in Cowpasture involves which part of the federal government has the authority to approve (or not approve) the pipeline’s route, and this question arose because of the ambiguous legal status of the Appalachian Trail.
Opened to the public in 1923, the Appalachian Trail crosses property owned by the federal government, property owned by 14 different states, and property owned by hundreds of private landowners. For many years, the federal government was not involved in managing the trail; instead, small sections were operated informally by local governments and hiking groups. Then, in 1968, Congress designated it a “national scenic trail” as part of the National Trails System Act.
Some of the federal land crossed by this “national scenic trail” is owned by the National Park Service, but the majority is owned by the National Forest Service. One might reasonably expect identical laws to apply to the Park Service land and the Forest Service land, but federal administrative law is not that straightforward.
In 1920, Congress provided special protections for National Parks in a law called the Mineral Leasing Act. The MLA enables federal agencies to authorize the construction of pipelines across or underneath most federal land (including land within national forests), but it states that only Congress may authorize a pipeline that crosses Park Service land. This is a critical distinction, because federal agencies can act much more quickly than Congress. Although subject to some public scrutiny and input, agencies need not open up their decision-making process to the political considerations affecting 535 members of Congress.
In 2017, one such federal agency — the Forest Service — granted a permit for the Atlantic Coast Pipeline to cross underneath the Appalachian Trail. The Forest Service assumed that it was empowered to do so under the MLA, since the relevant portion of the trail is located in the George Washington National Forest.
Not so fast, said the 4th Circuit in Cowpasture. The NTSA (the 1968 law that designated the Appalachian Trail a “national scenic trail”) also stated that the secretary of the interior would administer the trail. The secretary delegated this administrative authority to the National Park Service.
One might reasonably wonder why these arcane details matter. According to the 4th Circuit, the bureaucratic details matter because of a 1916 law that defines the National Park Service as encompassing “any area of land and water administered” by the National Park Service. This 1916 law, taken together with the MLA and the NTSA, leads to an important legal conclusion: The Appalachian Trail is administered by the National Park Service (under the NTSA), meaning that the portions of the trail crossing federal land are technically National Park land (under the 1916 law), meaning that a pipeline can be approved only by Congress, not by the Forest Service or any other agency (under the MLA). The Forest Service’s 2017 permit, therefore, was invalid.
If the Supreme Court were to adopt the 4th Circuit’s reasoning and reject the Forest Service permit, the future of the Atlantic Coast Pipeline would depend on Congress approving the current proposed route or, alternatively, the pipeline being rerouted to cross the trail on state or private property. In either case, the pipeline project would be subject to significant additional delay and expense.
The stakes could not be higher, which is why the attention of pipeline advocates and opponents will be squarely focused on the high court this winter and spring.