The Supreme Court heard arguments today in the case of U.S. Forest Service v. Cowpasture River Preservation Association, No. 18-1587. At issue is an $8 billion, 600-mile-long pipeline that would transfer natural gas from where it is sourced in Pennsylvania and West Virginia to customers in Virginia and North Carolina. Back in 2017 the US Forest Service approved a permit for the pipeline that would run through a portion of the George Washington National Forest, over which the USFS has jurisdiction.
The pipeline would be underground as it passes through national forests and the AT, but with a 50-foot swath of clearcut above the pipeline along its length.
But the Appalachian Trail is technically a unit of the National Park Service, to be governed by the NPS.
This reality, combined with fears of environmental impact, has meant that the project has stalled in the face of federal court rulings that have sided against Dominion Energy, the lead builder on the project. In December of 2018, Virginia’s 4th Circuit Court of Appeals cited the beloved Dr. Seuss book, The Lorax, in its ruling that the USFS had ignored environmental threats posed by the pipeline. “We trust the United States Forest Service to speak for the trees, for the trees have no tongues,” said the court filing.
The court argued that the USFS had uncovered many environmental concerns about the pipeline, but then shelved them without explanation, in order to approve the project.
Perhaps more damningly, at least as far as the legality of the project, the court also cited that no federal agency may approve of a pipeline through a national park—only Congress may approve of such a thing.
That prompted an appeal by Dominion Energy to the Supreme Court.
Today, the builders argue that to consider the entire AT as a national park, disallowing pipelines to cross it, would be to draw a barrier preventing natural gas to move eastward to population centers along the eastern seaboard.
“Simply put, there is no basis in any federal statute to conclude that Congress intended to convert the Appalachian Trail into a 2,200-mile barrier separating critical natural resources from the eastern seaboard,” Paul Clement, an attorney representing Dominion, wrote in a brief.
Opponents of the pipeline counter that there are pipelines running across the trail, but those do so only on private land and were built before the feds took over management of the AT. They point to the hundreds of explosions that have occurred in natural gas pipelines in the past decade, the thousands of accidents. They also argue that a pipeline running beneath and through the AT directly contradicts the very purpose of the trail and wild places in general—as a respite from the modern industrial world, not a park crisscrossed with fossil fuel delivery systems.
Interestingly, the Appalachian Trail Conservancy does not oppose the pipeline.
That’s not to say they support it, but that they don’t consider it a big enough affront to the AT to consume resources fighting it.
“There might be a lot of really good reasons to oppose the Atlantic Coast Pipeline,” Andrew Downs, a senior regional director for the Appalachian Trail Conservancy told NPR. “The Appalachian Trail is being used as a tool to stop it.”
Most of the pipeline would be buried only 10 feet below the ground, but where it would intersect the AT, it would be 700 feet below the ground. The pipeline would also enter and leave that stretch of the AT on private lands that run both sides of the trail. It’s also quite close to the Blue Ridge Parkway, a busy road that can be heard from the trail where the pipeline would cross. It isn’t the wildest or scenic part of the AT, in other words.
Complicating legal issues with the trail is the potentially competing interests that manage it. “If, in fact, the Appalachian Trail is part of the National Park System, then the Forest Service had no authority to authorize this tunneling underneath it for the Atlantic Coast Pipeline,” Noah Sachs, a professor of environmental law at the University of Richmond says.
Lawyers for the pipeline have argued that the NPS can have jurisdiction over the AT, while the USFS might retain jurisdiction of the land beneath the trail. The New York Times has reported that the justices seem unmoved by that theory, focusing instead on the idea of the AT being a natural barrier, some 2,000 miles long, preventing pipelines running across it at any point.
The Appalachian Trail Conservancy is concerned that a SCOTUS ruling about which federal agency gets to manage which sections of the AT will be disruptive to a trail management system that is carefully pieced together among federal, state, and local agencies, as well as the conservancy itself. They aren’t thrilled about the idea of a Supreme Court ruling that allows for a large-scale reimagining of the cooperation that keeps AT policy running smoothly.
The pipeline developers have already conceded, a bit, that the NPS may have ultimate jurisdiction over the AT and have petitioned for a special use permit.
Reporters at the Court indicate that the justices were dubious that the NPS ought to retain sole rights over the AT regardless of where it passes.
“It runs through cities, the trail. It runs through downtown Selma,” said Justice Sonia Sotomayor. “Does the Park Service, can it regulate the use of that area? Can it put, at a halt, everything that happens in downtown Selma?”
We’ll follow up as the case proceeds. You can read the proceedings and arguments in the SCOTUS case, here.
Photo: Emma Frances Logan