• June 22, 2020

    Supreme Court Clears Way for Progress on Natural Gas Infrastructure

    Matthew Koch

Last week, the United States Supreme Court issued an important ruling that removed a major hurdle to construct the Atlantic Coast Pipeline, dealing a fatal blow to a wide-reaching argument that opponents have tried to make to block badly needed infrastructure along the East Coast. 

In United States Forest Service v. Cowpasture River Preservation Association, the Supreme Court affirmed that the Appalachian Trail and energy infrastructure can legally co-exist. At issue: the Forest Service had given the Atlantic Coast Pipeline a special use permit and right-of-way through the George Washington National Forest. This included authorization to install a 0.1 mile pipeline segment 600 feet underneath a portion of the Appalachian Trial. However, the pipeline met one of its many legal snarls when the U.S. Court of Appeals for the Fourth Circuit held that the Forest Service had no authority to let the pipeline cross underneath the trail. This is because the Appalachian Trail is administered by the National Park Service, even where the trail crosses through other federal agency land, like the national forests. The U.S. Chamber filed amicus briefs at the Court of Appeals and the Supreme Court in support of the Forest Service and ACP.

The Appeals court essentially held that all land administered by the Park Service is part of the National Parks system, and while the Forest Service clearly has authority to authorize pipelines on its land, neither the Forest nor Park Service has authority to do so on park land. The Supreme Court reversed this decision, instead holding that the array of statutes and regulatory maneuvers that created the Appalachian Trail served to protect and administer the Appalachian Trail itself under the management of the Park Service. In setting up the trail, however, land rights were not transferred from the Forest Service to the Park Service, and the Forest Service retains the authority to grant easements on its own land, especially those well underneath and that do not disturb the Appalachian Trial itself. 

Writing for the majority (which was between 6 and 7 justices, depending on the specific issue), Justice Thomas wrote: “sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.”

Had the Supreme Court not acted, the Appalachian Trail would have served as a 2,200 mile wall stretching from Maine to Georgia, blocking pipelines, transmission lines, telecom wires, and roads and bridges. Every project needing to cross the Trail would have had to get a bill passed in Congress to do so. Private or public land in the U.S. that had granted an easement to the Parks Service could have been compromised in the same way.

While ACP still has to resolve and acquire some disputed major permits, the ruling is a major victory for the pipeline. The decision eliminates a huge hurdle to restarting construction and the 17,000 new jobs for construction workers needed to build ACP. It is also good news for the communities in southern Virginia and North Carolina that are still waiting for the supplies of clean natural gas and more affordable power that ACP will bring.