Supreme Court Poised to Rebuff Environmental Challenge to Pipeline Crossing Appalachian Trail

Environmental Activists Protest Against Atlantic Pipeline As Supreme Court Hears Case
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February 24, 2020

The Supreme Court on Monday seemed unwilling to block a planned natural gas pipeline that will run from West Virginia under the Appalachian Trail to the Eastern Seaboard.

The Fourth U.S. Circuit Court of Appeals ruled that a federal agency did not have the authority to issue a special-use permit for pipeline construction under the Appalachian Trail. The government and energy companies responsible for the project warn that the ruling effectively turns the trail into a barrier that walls off the East Coast from resource-rich lands in the interior of the country.

"There is no basis in any federal statute to conclude that Congress intended to convert the Appalachian Trail into a 2,200-mile barrier separating critical natural resources from the Eastern Seaboard," the energy companies told the justices in legal briefs.

The project at issue Monday is called the Atlantic Coast Pipeline. Developers say the pipeline is necessary to meet both soaring energy demands and public interest in clean-burning fuel. If constructed, the pipeline would carry natural gas approximately 600 miles from Harrison County, W.Va., to Virginia and North Carolina. The pipeline crosses beneath the Appalachian Trail southwest of Charlottesville, Va., in the George Washington National Forest (GWNF).

The legal question in Monday's case is highly technical, asking which agency is in charge of the trail. The U.S. Forest Service issued a special-use permit to construct the pipeline under the trail pursuant to its jurisdiction over the GWNF.

The Fourth Circuit said that permit is invalid, citing a 1968 law that gives the National Park Service (NPS) administrative authority over the trail. Pipelines cannot be built across national parklands without an act of Congress.

Now before the High Court, the Trump administration and the energy companies say the 1968 law did not transform the entire trail—which runs from Maine to Georgia across federal, state, and private property—into national parklands. The trail, they say, is merely a right-of-way across lands owned by different parties.

Justice Elena Kagan said the government and the developers were drawing a distinction between the trail itself and the land it runs on, which is difficult to parse.

"When you walk on the trail, when you bike on the trail, when you backpack on the trail, you're backpacking and biking and walking on land, aren't you?" Kagan asked Anthony Yang, who argued the case for the government.

"You find yourself wrapped up in these strange locutions about the trail traversing land," Kagan said.

Paul Clement, a lawyer representing the energy companies, told the justices that the NPS also administers a trail in Alabama commemorating a 1965 voting rights march called the Selma to Montgomery National Historic Trail. If the Fourth Circuit decision is right, Clement said, then parts of both cities are actually in the national park system.

"If that trail is [considered] land in the Park Service because we just can't get our head around the idea that trails are different from land, then parts of downtown Selma [and] downtown Montgomery are lands of the National Park Service," Clement said.

Chief Justice John Roberts seemed to agree with Yang and Clement, saying the Fourth Circuit's decision erected "an impermeable barrier."

"It really does erect an impermeable barrier to any pipeline from the area where the natural gas [and] those resources are located and to the area east of it where there's more of a need for them," Roberts said.

The Atlantic Coast Pipeline is a subterranean project. If constructed, it would sit about 700 feet below the surface. Justices Stephen Breyer and Samuel Alito seemed to think that was significant, telegraphing a possible ruling on narrower grounds.

"Why can't we just say that the trail is on the surface and something that happens 600 feet below the surface is not the trail?" Alito asked.

A ruling for the government and the developers might not immediately clear the way for the completion of the Atlantic pipeline. The Fourth Circuit has also ruled that the government did not study landslide risks or alternative routes closely enough before authorizing the project. Those issues must be resolved before work on the project can begin.

The Commonwealth of Virginia submitted a brief to the justices opposing the project, saying the pipeline "threatens some of Virginia's most valued natural sites."

A decision is expected by June. The case is No. 18-1584 U.S. Forest Service v. Cowpasture.

Published under: Supreme Court