FERC Gas Litigation Pipelines South

SCOTUS Debrief: The Atlantic Coast Pipeline Cowpasture Case

February 25, 2020

The Supreme Court heard oral argument yesterday on whether the Atlantic Coast Pipeline can lawfully cross the Appalachian Trail on federal land. Natural Resources Defense Council filed a brief in support of those challenging the pipeline. The case attracted a large crowd and involved complicated questioning from the justices, but as outlined in our brief (which was cited by Justice Sotomayor during oral argument), the core problem is straightforward: Atlantic Coast Pipeline chose an illegal crossing point and now wants the Supreme Court to fix its mistake.

This case revolves around the U.S. Forest Service’s issuance of permits for the Atlantic Coast Pipeline to cross the Appalachian Trail in Virginia within the George Washington National Forest (for more on the case background, see here). The U.S. Court of Appeals for the Fourth Circuit invalidated the Forest Service’s authorization on multiple grounds. One of those—the only one at issue at the Supreme Court—was the court’s holding that the plain text of the Mineral Leasing Act prohibits the U.S. government from authorizing a pipeline to cross the Appalachian Trail on federal land. The Supreme Court wrestled yesterday with whether that decision was correct. Importantly, its decision will not affect the multiple other reasons why the permits were thrown out.

The justices’ questioning focused on three key questions. First, can the Appalachian Trail be divorced from the land upon which it exists? Second, does the Fourth Circuit’s decision lead to an impenetrable barrier to pipeline construction along the Appalachian Trail? And third, does the Fourth Circuit’s decision open up treasured places like Yosemite National Park to pipeline construction?

The answer to each question is “No.” Here’s why.

The Appalachian Trail Is Land, Not a Magic Carpet

The Mineral Leasing Act expressly prohibits the U.S. government from authorizing pipelines across federal lands in the National Park System. The Appalachian Trail is a unit of the National Park System. Accordingly, if the Appalachian Trail is land, then the Mineral Leasing Act prohibits pipeline construction on the federally owned portions of the Appalachian Trail. Desperate to escape this straightforward reading, Atlantic Coast Pipeline argued to the Court yesterday that the Appalachian Trail is somehow severable from the land upon which it exists.

As noted by Justice Elena Kagan, “nobody makes this distinction in real life.” When you walk across the Appalachian Trail, your feet touch the ground. Your boots and hiking stick dig into the ground and pull up mud. All of the recreational activities that you engage in along the Appalachian Trail use the land. Federal law appropriates funds to acquire land for the Appalachian Trail. Supreme Court precedent expressly allows rights-of-way to include strips of land. The Appalachian Trail is not a magic carpet that hovers over the land upon which it sits. If the Park Service were to decide to dig up two feet of the Appalachian Trail to make the route more even for hikers, the freshly exposed dirt would still be the Appalachian Trail. Which means that it’s irrelevant, for the purposes of the Mineral Leasing Act, that the Atlantic Coast Pipeline would be built 600 feet underground. All that matters here is that the pipeline would be built on federal Park System land.

Pipelines Can, and Do, Lawfully Cross the Trail—Just Not Here

Here are the facts: While the entire Appalachian Trail is a unit of the National Park System, not all of the Appalachian Trail is owned by the federal government. Instead, it comprises federal land, state land, and private land. The Mineral Leasing Act prohibition on pipeline crossings is expressly limited to lands owned by the U.S. government. It does not apply to state- or privately-owned portions of Park System units. Thus, while all of the Appalachian Trail is a unit of the Park System, the Mineral Leasing Act only excludes the federally owned portions from pipeline construction.

Over 50 pipelines currently cross the Appalachian Trail—none implicates a circumstance similar to the Atlantic Coast Pipeline. They instead cross the Appalachian Trail on state or private land, or on parcels that are owned by the federal government but where the crossing either predates federal ownership or congressional delegation of the Appalachian Trail as a unit of the National Park System.

Also, the Fourth Circuit’s decision was not a shock wave that suddenly raised a red flag previously unknown to Atlantic Coast Pipeline. In 2015, the National Park Service told the pipeline’s developers in writing that the proposed route was unlawful because of the Mineral Leasing Act, and it encouraged Atlantic Coast Pipeline to reroute on state or private land. The developers chose to ignore that letter and are now facing the consequences.

Trail Lands Can Be Both Park System and Forest System Lands

Not all of the nation’s diverse trails are National Park System units. For example, the Pacific Crest Trail is primarily administered by the Forest Service. Just like there are places along the Appalachian Trail where Park System lands and national forests intersect, there are places along the Pacific Crest Trail that intersect with units of the Park System, such as the portions of the Pacific Crest Trail within Yosemite National Park.

Atlantic Coast Pipeline argued both in its brief and at oral argument that accepting the Fourth Circuit’s straightforward reading of the Mineral Leasing Act would open up Yosemite to pipeline construction because it would convert the Park System land crossed by the Pacific Crest Trail into Forest Service land. As an initial matter, neither the Forest Service nor the Park Service “own” land. All of the land at issue in this case has the same owner: the U.S. government. Additionally, this argument is wholly illogical. No pipeline could cross in either circumstance.

In both situations—a national forest intersecting with a Park Service administered trail, or a national park intersecting with a Forest Service administered trail—the affected land is simultaneously in the National Park System and in the National Forest System. When two layers of protection apply, the more restrictive of the two levels controls, regardless of the order of the layering. So, the legal prohibitions on pipeline development embedded in the Mineral Leasing Act apply equally in both situations, regardless of which agency is assigned which responsibility.

Put another way, if a child colors an image with a blue marker, and then colors over that blue marker with a yellow marker, the image becomes green. But if a child colors first with a yellow marker, and then colors over that yellow image with a blue marker, the image still becomes green. The result is the same because the applicable rules are the same. Likewise, federal lands that are in the National Park System, like Yosemite, or the federal portions of the Appalachian Trail, are both excluded from pipeline construction.

The Court will issue its decision later this year.