Supreme Court Visits Appalachian Trail to Address Pipeline Permitting Dispute

Legal Sidebari
Supreme Court Visits Appalachian Trail to
Address Pipeline Permitting Dispute
June 26, 2020
A proposed interstate natural gas pipeline in the mid-Atlantic is one step closer to reality after obtaining
one of the federal permits needed for construction and operation, thanks to a decision last week from the
U.S. Supreme Court. In U.S. Forest Service v. Cowpasture River Preservation Association, the Court
tackled a complex web of federal legislation and regulations that ultimately boiled down to a simple
question: who has the authority to issue a permit for an infrastructure project to cross the Appalachian
National Scenic Trail (Appalachian Trail or Trail)? The Court found that the U.S. Forest Service (FS) had
acted properly when it issued a special use permit for the construction and operation of a subsurface
pipeline segment passing under the Trail. The Court reversed a decision by the U.S. Court of Appeals for
the Fourth Circuit, which had held that the FS lacked statutory authority to issue the permit.
The decision involves the Atlantic Coast Pipeline—a proposed 604 mile natural gas pipeline that would
run from West Virginia though Virginia to Robeson County, NC, near the South Carolina border. The
developers obtained their Certificate of Public Convenience and Necessity from the Federal Energy
Regulatory Commission (FERC) in 2017 for the overal project. However, as is often the case, the
pipeline’s developers also needed authorizations from other federal and state agencies for various
segments and characteristics of the project. Among these was permission to construct and operate a
segment of the pipeline that runs approximately 600 feet below the Appalachian Trail that is within the
George Washington National Forest. The litigation focused on how and from whom to obtain permission
for construction and operation of that segment of the Atlantic Coast Pipeline project. In order to discern
the answer, the courts had to evaluate a morass of public land use statutes. The Fourth Circuit determined
that the Trail was part of the National Park System. As a result, the court held that the FS lacks authority
to grant the right-of-way because the relevant text of the Mineral Leasing Act of 1920 (MLA) explicitly
excludes “lands of the National Park System” from the definition of “federal lands” through which FS
may grant a right-of-way.
The Supreme Court disagreed, and reversed the lower court. In a 7-2 opinion authored by Justice Thomas,
the Court evaluated what it referred to as “the interaction of multiple federal laws.” The Court first
evaluated the Weeks Act of 1911, which provides for acquisition of lands to form the National Forest
System under the administration of FS pursuant to delegated authority from the Secretary of Agriculture.
Exercising its Weeks Act authority, FS established the George Washington National Forest in 1932.
Congress later established the Appalachian Trail through the passage of the National Trails System Act
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(Trails Act) in 1968. That statute dictates that the Appalachian Trail is to be “administered primarily as a
footpath by the Secretary of the Interior, in consultation with the Secretary of Agriculture.” The act also
empowers the Secretary of the Interior to establish the location and width of the trails via “rights-of-way”
agreements with federal, state, and local agencies, as wel as private landowners. The Secretary of the
Interior has delegated authority over trails to either the National Park Service or the Bureau of Land
Management. The National Park Service administers the Appalachian Trail.
With this framework in mind, the Supreme Court turned to the MLA, which FS relied on to grant the
Atlantic Coast Pipeline a right-of-way to cross under the Appalachian Trail. The MLA provides that,
among other things, “[r]ights-of-way through any Federal lands may be granted by the Secretary of the
Interior or appropriate agency head for pipeline purposes for the transportation of oil, natural gas,
synthetic liquid or gaseous fuels, or any refined product produced therefrom.” However, the statutory
language explicitly excludes “lands in the National Park System” from the definition of “Federal lands,”
meaning that the MLA does not authorize agency heads to grant pipeline rights-of-way across such lands.
The FS relied on the authority granted by this section of the act in authorizing Atlantic Coast Pipeline’s
right-of-way underneath the Appalachian Trail.
The Supreme Court focused “on the distinction between the lands that the Trail traverses and the Trail
itself, because the lands (not the Trail) are the object of the relevant statutes” (emphasis in original). The
Court noted that there was no dispute regarding FS jurisdiction over the lands within the George
Washington National Forest at the center of the dispute. The question for the Court, therefore, was
whether the lands associated with the Trail were stil subject to FS jurisdiction. If so, the FS had the
authority to issue a right-of-way permit under the MLA. If, however, the designation of the Trail under
the Trails Act and the Secretary of the Interior’s delegation of administrative authority over the Trail to
the National Park Service rendered the Trail “land[] in the National Park System,” a right-of-way could
not be granted under the MLA.
The Court held that the Trails Act did not transfer jurisdiction over the land in which the Appalachian
Trail is located. According to the Court, the Trails Act directed the Secretary of the Interior to enter into
“right-of-way agreements,” not land transfers, and that these right-of-way agreements do not convert the
underlying lands to “lands within the National Park System.” The decision explored the legal nature of
rights-of-way and easements, pointing out that these designations general y “grant a non-owner a limited
privilege to ‘use the lands of another’” but that “the grantor of the easement retains ownership over the
land itself.” The Court acknowledged that the circumstances were somewhat different in this case, where
the federal government was the owner of both the George Washington National Forest and the
Appalachian Trail that runs through it, but determined that “the same general principles apply” with
respect to different federal agencies. The Court interpreted the Trails Act’s reference to the granted land
interests as “rights-of-way” as a deliberate choice by the legislature to limit the nature of the property
rights. The Court noted that “[t]he fact that Congress chose to speak in terms of rights-of-way in the Trails
Act, rather than in terms of land transfers, reinforces the conclusion that the Park Service has a limited
role over only the Trail, not the lands that the Trail crosses.” As a result, the Court concluded that the
authorization did not make the land in question part of the “National Park System” in which issuance of
pipeline rights-of-way is not authorized under the MLA, but rather “Federal lands” under the jurisdiction
of the FS across which a right-of-way could be granted under the MLA.
The dissent, written by Justice Sotomayor and joined by Justice Kagan, found the analogy to easements
and rights-of-way across private lands “unconvincing,” noting that such property rights are general y
granted by one landowner to another, while in this case the federal government owns al of the relevant
property interests. The dissent argued that the Trail included land, not merely an easement, and asked
“how the Park Service could administer the Trail without administering the land that forms it. ”
As a result of this decision, the permit issued by the FS to Atlantic Coast Pipeline for crossing underneath
the Appalachian Trail is valid. Legislators who oppose the pipeline could halt its progress through new

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legislation. In addition, Congress could amend the statutory framework for authorizing crossings of the
Appalachian Trail and other properties administered by the National Park Service or other aspects of the
interstate pipeline permitting process.

Author Information

Adam Vann

Legislative Attorney




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