Tuesday, July 7, 2020

SCOTUS Allows Atlantic Coast Pipeline to Cross Appalachian Trail

The two energy companies constructing the Atlantic Coast Pipeline have abandoned their six-year bid to build it.  Despite the recent U.S. Supreme Court win discussed below, the companies cite high costs and regulatory uncertainty behind their decision to discontinue the project.

The Atlantic Coast Pipeline is a planned $8 billion, 600-mile natural gas pipeline from West Virginia to North Carolina. Petitioner Atlantic Coast Pipeline, LLC seeks to build the pipeline, which would traverse 21 miles of national forests and require crossing of 57 rivers, streams and waterways in those forests.

At issue before the Supreme Court, in a major environmental case of this term, were two consolidated cases decided by the Fourth Circuit. The cases involved a 2017 permit granted by the United States Forest Service (“Forest Service”) to allow the Atlantic Coast Pipeline to cross the George Washington National Forest in Virginia. The permit also authorized construction of a tunnel consisting of a 0.1-mile segment of pipe 600 feet beneath the Appalachian Trail within forest limits. The Fourth Circuit vacated that permit, holding that the entire 2,100-mile Appalachian Trail is part of the National Park System and, therefore, under the Mineral Leasing Act, no pipeline rights-of-way may be built on the trail.

On June 15, 2020, the Supreme Court reversed the Fourth Circuit and ruled 7-2 that the Forest Service had authority to issue the permit over the trail.

The National Park Service (“Park Service”) administers the Appalachian Trail, even where the trail runs through national forests. The trail has been an official “unit” of the Park Service for fifty years, but that status alone, now, does not prohibit construction of natural gas pipelines under the Mineral Leasing Act, which prohibits federal agencies from authorizing a pipeline right-of-way through “lands” in the National Park System. The question before the Supreme Court was whether the entire Appalachian Trail is such a “land” as defined by the Mineral Leasing Act.

The Court ruled that the Park Service had an easement under the 1968 National Trails System Act (“1968 Act”) to run a footpath over the trail, but the trail itself remained fully under the jurisdiction of the Forest Service. After providing a thorough primer on the common law of easements, the Court found that the trail is not a “land” in the National Park System but is simply a right-of-way, subject to the administrative supervision of the Park Service. But because the trail remains under the jurisdiction of the Forest Service, the Forest Service had authority to approve the crossing under the trail by way of a tunnel 600 feet beneath the trail.

The majority reasoned that Congress never transferred jurisdiction over the trail from one agency to another in the 1968 Act, but rather described the trail as a “right-of-way” through land under the jurisdiction of other agencies. The 1968 Act gave administrative authority over the trail to the Secretary of the Interior, not to the Park Service. The Secretary of the Interior then delegated the authority over the trail to the Park Service in 1969. But the Court said, “We will not presume that the act of delegation, rather than clear congressional command, worked this vast expansion of the Park Service’s jurisdiction and significant curtailment of the Forest Service’s express authority to grant pipeline rights-of-way.”

Justice Sonia Sotomayor and Justice Elena Kagan argued in dissent that the majority’s private-law easement analogies were unconvincing and inapposite. Easements are rights of limited access granted by a landowner to another, but the federal government owns all the land at issue in this case. So, federal statutory commands, not private-law analogies, should govern. The dissenting Justices argued that the majority improperly separated the trail from the land it occupies. The Park Service administers the trail, and therefore, it must also administer the land upon which the trail sits. The Secretary of the Interior had already delegated responsibility for trail administration to the Park Service when Congress passed a 1970 statute making all lands administered by the Park Service part of the National Park System. In the dissent’s view, the majority did not construe the relevant statutes in a way that effectuated what Congress intended.

Notwithstanding administrative delegation of authority over the trail to the Park Service, and the statute characterizing all lands administered by the Park Service as part of the National Park System, the Court held that the trail is not “land” in the National Park System. Rather, the trail is a right-of-way, subject to administrative supervision by the Park Service but subject to the jurisdiction of the Forest Service.

This decision removes major obstacles to constructing the Atlantic Coast Pipeline. If the Fourth Circuit decision had been upheld, the pipeline likely would have had to be rerouted, resulting in tremendous expense and delay. Other obstacles to the pipeline remain, however, as the Fourth Circuit has vacated several other permits required for the project.

United States Forest Serv. v. Cowpasture River Pres. Ass'n, No. 18-1584, 2020 WL 3146692, at *3 (U.S. June 15, 2020)

Author Megan B. Burnett is an attorney in the Baltimore office of Miles & Stockbridge P.C., with offices in Maryland, Washington, D.C., and Virginia. She practices in the areas of commercial and business litigation, with a focus on construction law and commercial real estate disputes.

Disclaimer: This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney-client relationship. The opinions expressed and any legal positions asserted in the article are those of the author and do not necessarily reflect the opinions or positions of Miles & Stockbridge, its other lawyers or the American Bar Association Construction Law Forum.

No comments:

Post a Comment