The Appalachian Trail Conservancy notes that the Supreme Court of the United States has decided to hear Cowpasture River Reservation Association, et al. v. United States Forest Service, which is an interesting case from the Fourth Circuit. It’s personally interesting to me because the Atlantic Coast Pipeline will pass near my parents’ house along a rather odd route that seems to avoid a number of obvious gaps and instead wants to go straight up and straight down the Allegheny highlands. And because even though I live in New York, I still think of Highland County, Virginia, as home.
But it’s also legally interesting because, as the Fourth Circuit observes, the statutes allow only Congress to grant a pipeline right-of-way on National Park lands.
The problem with the Forest Service’s argument is it misreads both the [Mineral Leasing Act (MLA)] and the National Trails System Act. The MLA specifically excludes lands in the National Park System from the authority of the Secretary of the Interior “or appropriate agency head” to grant pipeline rights of way. See 30 U.S.C. §§ 185(a), 185(b)(1). In other words, the MLA concerns the land, not the agency. The FEIS concluded, and the parties agree, that the ANST is a unit of the National Park System. Accordingly, even if the Forest Service were the “appropriate agency head” in this instance, it could not grant a pipeline right of way across the ANST pursuant to the MLA. Interpreting the MLA as the Forest Service argues would give the Forest Service more authority than NPS on National Park System land. This defies logic. [emphasis in original]
What sort of grounds will SCOTUS find to permit the pipeline to cross National Park lands? In addition to the Appalachian Trail, the proposed route also crosses the adjacent Blue Ridge Parkway.
We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.
The Court issued their opinion in this matter on June 15, 2020. Just another one of those boring, administrivial cases that trades the degradation of the common good for private profit. The Court found (7-2) all the necessary hoops it needed to jump through to find the text that would allow the Atlantic Coast Pipeline to cross the Appalachian Trail. As Justice Sotomayor writes in her dissent, “The majority’s complicated discussion of private-law easements, footpath maintenance, differently worded statutes, and policy masks the simple (and only) dispute here.”
I guess that means the construction of a pointless pipeline through the karst near my parents will start up again, soon enough. But I suppose this was to be expected; Appalachia has only ever been good for despoiling.
Way to go.
Update: Dominion Energy and Duke Energy cancelled the project on July 5, 2020.