The US Supreme Court held that the National Park Service’s responsibility over the Appalachian Trail did not incorporate that land into the National Park System, leaving the Forest Service with the authority to grant the permit for the pipeline.
In US Forest Service v. Cowpasture River Preservation Ass’n, No. 18-1584 (2020), the US Supreme Court untangled a series of laws to hold that the US Forest Service is authorized to issue permits for pipelines going through public lands, even when those pipelines cross national trails. The decision reversed the US Court of Appeals for the Fourth Circuit, which had concluded that the Appalachian Trail had become part of the National Park System when the secretary of the US Department of the Interior delegated trail administrative duties to the National Park Service. The Fourth Circuit had reasoned that this delegation meant that the Forest Service did not have authority under the Mineral Leasing Act to grant such a permit.
The Supreme Court disagreed, concluding that the Trails Act only granted the National Park Service a right-of-way easement to establish and administer the Appalachian Trail, not control over the land itself. The decision clarifies an important question regarding the jurisdiction of federal agencies and removes what would have been an impenetrable barrier to construction of the pipeline.
In 2015, Atlantic Coast Pipeline (ACP) began plans to construct a 600-mile natural gas pipeline spanning from West Virginia to Virginia and North Carolina. The project required a special use permit that would authorize ACP to place a segment of pipe approximately 600 feet below the Appalachian Trail within the George Washington National Forest. ACP applied to the Forest Service, which issued the permit.
A number of parties brought suit to challenge the permit approval. They argued in part that the Mineral Leasing Act did not authorize the Forest Service to grant a pipeline right-of-way under the Appalachian Trail because the Appalachian Trail was within the National Park System and therefore outside the jurisdiction of the Forest Service. After the Fourth Circuit agreed and vacated the Forest Service’s permit, ACP appealed the decision to the US Supreme Court.
In a 7–2 decision, the Supreme Court overturned the Fourth Circuit. Writing for the Court, Justice Clarence Thomas held that “basic property law principles” and the “plain language” of the operative statutes made clear that the Forest Service had authority to issue the permit to ACP.
According to the Court, the first legislative piece of the puzzle was the Weeks Act, which established the administration of the National Forest System, including the George Washington National Forest. Those responsibilities were eventually tasked to the Forest Service.
Next, the National Trails System Act established national trails, including the Appalachian Trail. Administered primarily by the National Park Service, the statute authorizes the Parks Service to enter into right-of-way agreements with other landowners over the location and size of the Appalachian Trail. But, according to the Court, the statute is also clear that these agreements do not constitute a transfer of land management responsibilities.
The final relevant law was the Mineral Leasing Act, which gives “any appropriate agency head” the discretion to grant pipeline rights-of-way through federal land, except for land in the National Park System.
With the legislative framework established, the Court identified the ultimate question as whether the National Park Service’s authority over the trail grants it control over the land. The Court answered that question in the negative, finding that the National Parks Service’s authority is limited to trail administration.
The Court noted that the Trails Act uses “right-of-way” agreements—a type of easement that grants the non-owner a limited right to use the owner’s land but does not grant the non-owner control of the land itself. According to the Court, that means that the National Park Service has the duties related to regulating the trail, but general jurisdiction remains with the Forest Service.
The Court noted that Congress used clear and direct language in other statutes when transferring land, so the lack of such language in the Trails Act was telling. Justice Thomas characterized the analysis as ultimately a “simple proposition” because “a trail is a trail, and land is land.”
The Court also offered a policy rationale in support of that construction. It explained that an alternative view would make large areas of state and private land part of the National Park System, which the Court viewed as altering the balance between federal and state power over private property.
The Supreme Court’s holding resolves a fundamental question about federal agencies’ authority over the Appalachian Trail, and if the Court had allowed the Fourth Circuit’s decision to stand, ACP could not proceed as planned. The Court’s decision is also good news for similarly stalled natural gas pipeline projects, such as the Mountain Valley Pipeline, whose proposed route also crosses underneath the Appalachian Trail.
While the Cowpasture decision is a positive development for natural gas pipeline sponsors, recent rulings by courts and federal agencies suggest that there may be additional permitting considerations impacting natural gas pipeline project development. In April, a federal judge in Montana issued an order involving the Keystone XL Pipeline that vacated and remanded its NWP 12 permit back to the Army Corps of Engineers (Corps) until the Corps completed its consultation requirements with respect to threatened and endangered species. However, the judge did not limit his order to Keystone, as his decision applies to the construction of new oil and gas pipelines until the Corps completes its consultation process for impacts to threatened and endangered species. This decision is pending before the Ninth Circuit, which recently denied a request for a stay and ordered briefing to begin in August 2020.
Additionally, on June 9, the Federal Energy Regulatory Commission (FERC) issued a rule requiring that natural gas pipelines that have been approved by FERC begin construction only after FERC addresses requests for rehearing, or appeals of decisions, by stakeholders. FERC states that the rule is in response to increased interest and participation by stakeholders, such as landowners, community members, nongovernmental organizations, property rights advocates, and governmental entities, that have raised concerns about proposed natural gas pipeline projects.
FERC’s new rule also appears to be in direct response to the DC Circuit’s review of FERC’s practice of issuing “tolling orders” in response to requests for rehearing of pipeline certificate orders under the Natural Gas Act (NGA), which remains under review by the DC Circuit sitting en banc in Allegheny Defense Fund v. FERC.
These and other pending decisions of courts and federal agencies will help clarify the regulatory process for permitting and constructing new natural gas pipelines across the country.
Summer associate Jason Muehlhoff contributed to this LawFlash.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Ella Foley Gannon
 Judicial review of a FERC certificate order cannot begin until FERC’s rehearing process is completed. The Natural Gas Act requires FERC to act on requests for rehearing within 30 days, but, by issuing a tolling order, FERC is given more time to consider issues raised on rehearing. Importantly, because the rehearing process does not prevent FERC from allowing construction to begin or delay eminent domain proceedings, pipeline opponents have claimed that FERC’s tolling order process deprives them of the right to timely judicial review.