The Atlantic Coast Pipeline

The United States Supreme Court ruled on Monday that the controversial Atlantic Coast Pipeline can traverse sixteen (16) miles of land within the George Washington National Forest.  The case, United States Forest Service v Cowpasture River Prevention Assoc., 590 U.S. ___ (2020), considered the grant of a special permit from the Forest Service for a right of way some 600 feet below a portion of the Appalachian National Scenic Trail.  The Respondents filed a petition for review alleging that the special permit for the right of way violated the Mineral Leasing Act.

The decision by Justice Clarence Thomas lifts one barrier to the continuation of the $8 billion project.  Under the Mineral Leasing Act, the Secretary of the Interior has the authority to grant natural gas pipelines rights-of-way through National Park System lands.  The Appalachian Trail is considered a unit of the National Park System.

The Court addressed the issue by analyzing the matter by traditional real estate definitions.  It held that the right-of-way agreement did not convert “Federal Lands” into “Lands” within the “National Park System.”  The Court stated, “[a]  right-of-way is a type of easement.”  It further stated, “a right-of-way between two agencies grants only an easement across the land, not jurisdiction over the land itself.”  “We hold that the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System.  Accordingly, the Forest Service had the authority to issue the permit here.”

Justice Sotomayor joined by Justice Kagan dissented.  Justice Sotomayor wrote that statutory history reinforces that the Appalachian Trail is land in the National Park System, that the majority’s distinction between trail and land was unfounded, and that the majority decision was inconsistent with the language of three statutes, longstanding agency practice, and common sense.

But, other hurdles remain.  Opponents continue to dispute the need for the pipeline, particularly in light of the Virginia Clean Economy Act.  Stay tuned.