The U.S. Supreme Court has announced that the appeal of the case vacating the Atlantic Coast Pipeline’s (ACP) permit from the U.S. Forest Service to build across Forest Service land is scheduled for oral argument on Monday, February 24, 2020 at 10 am. The Fourth Circuit Court of Appeals struck down the permit in a December 18, 2018 decision on the grounds that the Forest Service 1) was negligent in its analysis of environmental impacts on Forest lands, and 2) did not have the legal authority to grant permission for the project to cross the Appalachian National Scenic Trail.
The appellants in the case – Atlantic Coast Pipeline, LLC and the U.S. Forest Service – filed their briefs with the Court on December 2. Amicus briefs in support of the appellants are due to be filed by December 9
The respondents in the case, all members of ABRA, are Cowpasture River Preservation Association, Highlands for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia. Their brief must be filed by the Southern Environmental Law Center (SELC) by January 15. Amicus briefs in support of the respondents’ position are due January 22.
The brief filed December 2 by ACP, LLC included the following highlights:
- The Fourth Circuit’s decision “not only is at profound odds with the text, structure, and history of the Trails Act (not to mention the canon against implied repeals), but threatens upheaval for the hundreds of miles of the Appalachian Trail that traverses lands owned by states or private parties. It imperils other pipelines and approvals the Forest Service has granted for other critical infrastructure to cross Forest Service lands traversed by the Trail. None of that disruption is necessary or justified. Simply put, 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 Fourth Circuit’s interpretation produces results that Congress plainly did not intend.”
- “If the Appalachian Trail really were a barrier to pipeline rights-of-way, then it likely would prevent construction of the Mountain Valley Pipeline.”
- “The Fourth Circuit’s decision converting the entirety of the Appalachian Trail into Park System lands is wrong at every turn.”
- “The irony of the Fourth Circuit’s decision is that its effort to preclude the Forest Service from granting pipeline rights-of-way, in the name of admonishing the agency to “speak for the trees” (quoting Dr. Seuss, The Lorax (1971)), will not even promote environmental protection. The pipeline itself would be nearly 700 feet below the Trail with no discernable effect on the footpath or trees above. And once operational, the Atlantic Coast Pipeline, like other natural gas pipelines, will do much for the environment.”
The brief submitted by the Solicitor General on behalf of the Forest Service including the following highlights:
- “This case concerns the Forest Service’s authority under 30 U.S.C. 185 to grant a right-of-way for an underground natural-gas pipeline through lands owned by the United States within the George Washington National Forest, where that right-of-way would cross underneath the Appalachian National Scenic Trail (Appalachian Trail or Trail). The existence of that authority ultimately depends on whether the “lands” within the National Forest traversed by the Trail remain National Forest lands or whether Congress has converted those lands into “’lands in the National Park S’”
- “The Forest Service has authority under the Mineral Leasing Act to grant an underground pipeline right-of way through federal lands in a National Forest, including where those lands are traversed by the Appalachian Trail.”
- “The court of appeals rested its contrary holding on a Trails Act provision providing that ‘[t]he Appalachian Trail shall be administered primarily as a footpath by the Secretary of the Interior.’ But that Act makes clear that the Appalachian Trail is ‘a trail’ — not ‘land’ —and that authority to administer the trail is different from authority to administer the lands traversed by the trail. Indeed, Congress expressly provided in the Trails Act that its assignment of ‘overall administration of a trail’ across the surface of lands does not ‘transfer among Federal agencies any management responsibilities established under any other law for federally administered lands.”
- The broader legal and practical context confirms that National Forest lands traversed by the Trail remain under the Forest Service’s administrative jurisdiction.
- “The court of appeals erred in holding that the Forest Service lacked authority under the Mineral Leasing Act to grant a pipeline right-of-way through National Forest lands traversed by the Appalachian Trail. That error derives from two primary sources. First, the court failed to recognize the distinction between a ‘trail’ and the ‘lands’ that the trail traverses. That oversight led the court to believe that the Secretary of the Interior’s authority to ‘administer’ the Appalachian Trail’ is the same as authority to administer the federal lands crossed by the Trail. On that premise, the court determined that ‘the [Trail] is land in the National Park System’ for which the Mineral Leasing Act does not authorize a right-of-way. Second, the court extended its conflation of trails and lands into a determination that the Chief of the Forest Service is not the appropriate ‘agency head’ to grant a right-of-way.