By Gillian Giannetti, Staff Attorney and Sharon Buccino, Director of Nature Program Land Division at NRDC
You may know the Appalachian Trail from Bill Bryson’s book A Walk in the Woods and the movie NRDC Trustee Robert Redford made about it. Or you may have walked pieces of it. About 3 million people hike at least some part of the Trail every year—snapping photos, writing blogs, and making memories. A unit of the National Park System, the Appalachian Trail crosses federal, state and private land as it winds its way over 2,000 miles from Georgia to Maine. Nearly fifty years ago, Congress amended the Mineral Leasing Act to shield federal Park System lands from fossil fuel development. Despite this, in an unprecedented move, the developers of the beleaguered Atlantic Coast Pipeline want to cut through the Appalachian Trail on federal land. Today, the Natural Resources Defense Council filed an amicus brief with the U.S. Supreme Court explaining why this gas pipeline’s proposed route is unlawful. Our arguments are summarized below.
How Did the Dispute Get to the Supreme Court?
At issue in the Supreme Court case is the green light that the U.S. Forest Service gave the Atlantic Coast Pipeline to cross the Appalachian Trail within the George Washington National Forest—right here in the backyard of our Nation’s capital. The U.S. Court of Appeals for the Fourth Circuit invalidated the Forest Service’s decision on multiple grounds. One of those grounds—the issue here—was the court’s holding that the plain text of the Mineral Leasing Act prohibits any federal agency from authorizing a pipeline to cross the Appalachian Trail on federal land. This decision was correct, and the Supreme Court should uphold it.
The Legal Arguments
The Mineral Leasing Act permits the U.S. government to grant a pipeline right-of-way on “Federal lands.” However, under this statute, “Federal lands” is defined to mean “all lands owned by the United States” except, among other limitations, “lands in the National Park System.” The key question, then, is whether the Appalachian Trail comprises “lands in the National Park System.”
It unquestionably does.
Federal law defines the “National Park System” as “any area of land and water” that is: (1) administered by the Secretary of the Interior; (2) acting through the Director of the National Park Service; (3) “for park, monument, historic, parkway, recreational, or other purposes.” The Appalachian Trail checks all three boxes. It is (1) administered by the Secretary of the Interior; (2) the Interior Secretary has delegated administration of the Trail to the National Park Service; and (3) the Trail is meant “to provide for maximum outdoor recreation potential.” Because the Appalachian Trail comprises “lands in the National Park System,” the federal government may not approve a pipeline to cross the portions of the Appalachian Trail on “lands owned by the United States.” This includes the portions within the George Washington National Forest.
Atlantic Coast Pipeline and the Forest Service, desperate to explain away this straightforward conclusion, levy a bunch of unconvincing rebuttals. First, they contend that the Appalachian Trail is not “land” but merely “a footpath” that metaphysically crosses land. The Appalachian Trail is not a levitating construct that is somehow divorceable from the land upon which it rests. Further, the term “footpath” refers to the means by which it is traversed—by foot—as opposed to its legal status. Additionally, this interpretation is not consistent with Supreme Court precedent on public rights-of-way.
Second, they argue that the Appalachian Trail cannot comprise “lands in the National Park System” because other agencies—here, the Forest Service for the George Washington National Forest—manage some of the lands upon which the Appalachian Trail exists. But this is again a red herring. This is not a zero-sum game; lands can be simultaneously managed by the Forest Service and be in the National Park System, and Supreme Court precedent supports that, too.
Last, they argue, hyperbolically, that if the Fourth Circuit’s interpretation is upheld, no one will be able to build a pipeline across the entire 2,000 miles of the Appalachian Trail. False again. By its terms, the Mineral Leasing Act only applies to lands “owned by the United States.” The Mineral Leasing Act does not apply to state- or privately-owned lands within the Appalachian Trail. Atlantic Coast Pipeline’s developers could seek the necessary approvals to locate the pipeline there, and not through a national forest.
What’s at Stake
Adopting Atlantic Coast Pipeline and the Forest Service’s interpretation could lead to troubling results elsewhere. For example, it could open protected Park Service areas like the Timpanogos Cave National Monument and the Gila Cliff Dwellings National Monument to gas pipelines. Like the Appalachian Trail, a cave is inseparable from the federal land which contains it. Likewise, ancient dwellings are inseparable from the cliffs into which they are built. But Atlantic Coast Pipeline would have Supreme Court justices believe that treasures we have chosen as a nation to protect—like a trail or a cave—can be separated from the land that holds them.
Atlantic Coast Pipeline has known that the Mineral Leasing Act prohibits it from crossing federal land since at least 2015, when the National Park Service told the Federal Energy Regulatory Commission that the pipeline could not cross where the Appalachian Trail and the Blue Ridge Parkway intersect—because of the Mineral Leasing Act. At that time, the Park Service did not say that Atlantic Coast Pipeline could not cross the Trail. Rather, it suggested a potential alternative route on private land. Atlantic Coast Pipeline chose instead to route its project across the Trail and a national forest.
Make no mistake—Atlantic Coast Pipeline wants the Supreme Court, and the American people, to think that upholding the Fourth Circuit’s straightforward reading would be the end of American energy infrastructure as we know it. It is not. The Atlantic Coast Pipeline cannot cross the Appalachian Trail where developers want; the law simply doesn’t allow it. Given the many places the Trail crosses non-federal land, the case does not stand as a bar to pipeline construction.
The Supreme Court is scheduled to hear oral argument in the case on February 24.
Image credit: Wilsilver77/iStock