The U.S. Supreme Court, by a 7-2 decision on June 15, overturned a decision by the Fourth Circuit Court of Appeals that the U.S. Forest Service (USFS) did not have authority to grant a permit for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail (Trail).
In writing the opinion for the majority, Justice Thomas noted that the Fourth Circuit’s opinion had in effected made the AT a part of the National Park System (NPS) because the Trail was an area of land . . . administered by the Secretary of the Interior acting through the Director of the NPS, in accordance with provisions of the Mineral Leasing Act. With that logic, he said, the USFS lacked authority to grant a permit for the ACP to cross the Trail. Continuing, Thomas stated:
“. . . it is undisputed that the Forest Service has jurisdiction over the ‘Federal lands’ within the George Washington National Forest. The question before us, then, becomes whether these lands within the forest have been removed from the Forest Service’s jurisdiction and placed under the Park Service’s control because the Trail crosses them.
“We conclude that the lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be ‘Federal lands’ under the Leasing Act.”
“In sum, read in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service. . . . at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is a land.”
Thomas’s opinion also expressed concern that the Fourth Circuit’s theory “has striking implications for federalism and property rights.”
Justice Sotomayor, in a dissent joined by Justice Kagan, stated that “the only question here is whether parts of the Appalachian Trail are ‘lands’ within the meaning of these statutes.” Continuing, she stated:
“Federal law does not distinguish “land” from the Trail any more than it distinguishes ‘land’ from the many monuments, historic buildings, parkways, and recreational areas that are also units of the Park System. Because the Trail is land in the Park System, ‘no federal agency’ has ‘authority under the Mineral Leasing Act to grant a pipeline right-of-way across such lands.’
“By contrast, today’s Court suggests that the Trail is not ‘land’ in the Park System at all. . . Because today’s Court condones the placement of a pipeline that subverts the plain text of the statutes governing the Appalachian Trail, I respectfully dissent.”
In commenting upon the Supreme Court’s decision, D. J. Gerkin of Southern Environmental Law Center, who had successfully argued the case for the Respondents (most of whom were ABRA members) before the Fourth Circuit, said:
“While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power. It’s time for these developers to move on and reinvest the billions of dollars planned for this boondoggle into the renewable energy that Virginia and North Carolina customers want and deserve.”
A copy of the majority opinion and dissent are available here.