Oil and Gas Update
U.S. Supreme Court Allows Pipeline to Cross Appalachian Trail
July 13, 2020
By: Matthew F. Chase and Robert G. McLusky
In a major victory for natural gas pipeline development, the Supreme Court ruled 7-2 that the U.S. Forest Service had authority to grant a right-of-way to the Atlantic Coast Pipeline (“ACP”) to extend its pipeline under a portion of the Appalachian Trail (“AT”) located within the George Washington National Forest. See U.S. Forest Service v. Cowpasture River Preservation Ass’n. and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Ass’n. The decision reversed an opinion by the Fourth Circuit Court of Appeals which held that the AT was part of the National Park System, and by virtue of that fact the Forest Service lacked authority to grant the right-of-way. The opinion evaluated the entanglements created by three federal enactments: the 1911 Weeks Act; the 1968 National Trails System Act; and the 1920 Mineral Leasing Act. Even though ACP has since abandoned plans to build its pipeline, the decision is significant for other projects because the lower court’s ruling threatened to turn the AT into a 2,000 mile long barrier to energy-related rights-of-way.
The Three Statutes:
Congress enacted the Weeks Act in 1911 to provide for the purchase of lands for inclusion in the National Forest System. United States Forest Serv. v. Cowpasture River Pres. Ass’n, No. 18-1584, 2020 WL 3146692, at *3 (U.S. June 15, 2020). Lands so acquired “shall be permanently reserved, held and administered as national forest lands.” Id. The George Washington National Forest was established in 1918 under the Weeks Act, which also provided authority to administer the Forests to the Secretary of Agriculture (who has delegated that authority to the Forest Service). Id.
In 1968, Congress enacted the National Trails System Act (“Trails Act”) to “establish national scenic and national historic trails.” Id. Among the trails created by the Act was the AT. Id. The Trails Act provides that the AT “shall be administered primarily as a footpath by the Secretary of the Interior . . . [who has] delegated responsibility over the AT to the National Park Service . . . .” Id. at *3-*4 (internal citations and quotations omitted). Significantly, the Trails Act provides also that it shall not be “deemed to transfer among Federal agencies any management responsibilities established under other federal law for federally administered lands which are components of the National Trails System.” Id. at *3.
The final statute is the Mineral Leasing Act (the “Leasing Act”), enacted in 1920. Id. at *4. It originally enabled the Secretary of Interior to grant pipeline rights-of-way through “public lands, including the forest reserves.” Id. In 1973, though, the Act was amended to allow “any appropriate agency head” to grant “rights-of-way through any Federal lands . . . for pipeline purposes.” Id. However, the same amendment excluded from those “federal lands” through which the appropriate agency head could grant a pipeline easement “lands in the National Park System . . . .” Id. The Act defines “National Park System” as “any area of land . . . administered by the . . . National Park Service . . . .” Id.
In 2018, the Forest Service granted a subterranean right-of-way to ACP to pass a new gas pipeline some 600 ft. below the AT inside the George Washington National Forest. Id. at *2. The Forest Service claimed the authority to grant the right-of-way under the Leasing Act as the “appropriate agency head” over “federal lands” within the Forest. See Id. at *2, *3. Opponents argued, however, that the Forest Service did not have such authority, and the Fourth Circuit agreed, ruling that “land” within the National Forest over which the AT traversed had been removed from the Forest Service’s authority by the 1973 amendments to the Leasing Act because the AT is “land in the National Park System.” Id. at *3.
The Supreme Court reversed, holding that the Forest Service maintained jurisdiction to grant the pipeline right-of-way beneath the AT. It ruled that the Interior Department’s decision to entrust administration of the AT to the National Park Service did not transform the land in the National Forest over which the Trail passes into “land within the National Park System.” Id. at *10.
At the outset, the Court framed the issue as whether, according to the Leasing Act, the portion of the Trail in the Forest was: 1) “Federal land” across which an “appropriate agency head” such as the Forest Service may grant pipeline rights-of-way, or; 2) “lands in the National Park System” which are specifically carved-out of the “Federal lands” definition and precluded from grants of pipeline rights-of-way. Id. at *4. The Court first examined how rights-of-way are types of easements which grant only nonpossessory rights of use in property and not the property itself. See Id. at *5. When the AT was created under the Trails Act, the Court recognized that such a limited interest in land was granted not only by other federal agencies, but state agencies, local governments, and private landowners as well. Id. Thus, the Forest Service did not divest its “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.” Id. at *6. The Court reasoned that such an easement could surely be granted for a pipeline right-of-way through the Trail as well.
The Court then analyzed the Trails Act, describing the various, but limited, duties the Secretary of the Interior (and by delegation the National Park Service) has in maintaining national trails across the United States but “not the lands over which the easement passes.” Id. at *7. It also compared the Trails Act, which spoke in terms of rights-of-way, with other statutes in which “Congress [had] used unequivocal and direct language when it wished to transfer land from one agency to another.” Id. Such specific language in the delegation of duties and interests able to be transferred “reinforce[d] the conclusion that the Park Service has a limited role over only the Trail, not the lands that the Trail crosses.” Id.
The Court countered various arguments made by pipeline opponents and shared by the dissent that the Trail could not be separated from the underlying land, mainly relying on the plain language of the Trails Act and basic property principles as reasoned above. Id. at *8. It also criticized how the Respondents’ interpretation of the various statutes would result in “the Department of the Interior ha[ving] the power to vastly expand the scope of the National Park Service’s jurisdiction through its delegation choices [without congressional approval].” Id. Such an expansion of power would not only affect the Forest Service’s expressed authority to keep and maintain national forest lands pursuant to the Weeks Act and to grant rights-of-way pursuant to the Leasing Act, it would also usurp property owned by various agencies and private landowners under national trails across the United States. Id. at *9.