The Southern Environmental Law Center (SELC) wrote the U.S. Forest Service (USFS) on June 24 regarding the Fourth Circuit Court of Appeals’ December 18 decision that the USFS lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (ANST). The SELC letter follows an April 30 communication from USFS to the Atlantic Coast Pipeline, LLC (ACP, LLC) asking the company if it would like the USFS to “renew is consideration of the right-a-way application for the ACP.” The company responded in the affirmative.
The SELC letter points out that:
“(1) the Cowpasture decision does not affect the Forest Service’s other management authorities for the ANST;
“(2) reasonable off-forest alternatives exist for the ACP to cross the ANST; and
“(3) while the Forest Service has never before and cannot now issue a new gas pipeline right-of-way across the ANST, options exist for new pipelines to be built in the eastern United States, and existing pipelines are unaffected by the Cowpasture decision.”
SELC further explains to USFS:
- “We have examined every existing crossing of the ANST by an oil or gas pipeline and confirmed that the Forest Service has never before granted a new right-of-way for an oil or gas pipeline to cross the ANST where it traverses a national forest, until it did so for the Atlantic Coast and Mountain Valley pipelines.”
- “Of the pipelines that do cross the Appalachian Trail on federally-owned land, nearly all existed before the creation of the Appalachian Trail or before the land was acquired by the federal government. The Mineral Leasing Act applies only to the initial grant of a right-of-way or the renewal of temporary rights-of-way for oil and gas pipelines. See 30 U.S.C. § 185(a), (q). Permanent rights-of-way granted before the creation of the ANST as land in the National Park System are unaffected by the Cowpasture decision because they require no new authorization under the Mineral Leasing Act. Similarly, the federal government took ownership subject to any property rights for permanent rights-of-way that existed prior to federal acquisition; such property rights do not require renewal under the Mineral Leasing Act and are unaffected by the Cowpasture decision.”