The Supreme Court rules that the Forest Service can approve natural gas pipelines crossing the Appalachian Trail.
In United States Forest Service v. Cowpasture, the U.S. Supreme Court held that the U.S. Forest Service could authorize the Atlantic Coast Pipeline, a now-cancelled $8 billion pipeline project, to cross the Appalachian Trail in the George Washington National Forest.
From the outset, Cowpasture was an unusual case for the Court to consider. There was no circuit split—only one circuit court had ruled on this issue—and there was no constitutional question. The case involved a single natural gas pipeline crossing an iconic trail deemed part of the U.S. National Park System by federal agencies for decades. The narrow question was simply whether the Appalachian Trail in the national forest was federal land in the park system, thereby excluding it from Mineral Leasing Act authority invoked by the Forest Service, or whether the trail was distinct from the land it traverses in the national forest, and therefore not excluded from the Leasing Act.
If the lower court ruling stood, the pipeline would have had to reroute several miles to cross the trail on non-federal lands, where Leasing Act authority does not apply. A decision either way would neither stop nor guarantee the development of the 600-mile pipeline, which was missing multiple permits sent back to the agencies by the courts. In seeking review, pipeline proponents asserted that the stakes were much higher, and the lower court decision would create a barrier to pipeline development along the east coast. This assertion turned the case of a single pipeline crossing the trail into a battleground for natural gas energy development.
No party disputed that the Appalachian Trail is a unit of the national park system, nor that the Leasing Act, which gives the Forest Service authority to grant pipeline rights-of-way, excludes lands in the park system. Instead, the parties disputed what the Leasing Act means for the section of the 2,000-mile Appalachian Trail, a national park unit, that falls within the George Washington National Forest.
The U.S. Court of Appeals for the Fourth Circuit anchored in statutory text its conclusion that the trail was beyond the authority of the Forest Service to grant pipeline rights-of-way. The National Trails System Act, the National Park System Organic Act, and the Leasing Act, in combination with the U.S. Department of Interior’s decades-old decision to delegate responsibility over the trail to the U.S. National Park Service, placed the trail in the park system and, by definition, excluded such land from the Leasing Act.
In reversing the Fourth Circuit, the Court’s majority rejected that path as too “circuitous.” An opinion by Justice Clarence Thomas turned instead to “basic property law principles,” finding that the Trails Act only gave the Park Service a right-of-way easement—granting a “nonowner” limited privilege to “use the lands of another”—under the jurisdiction of the Forest Service. Like other right-of-way easements, the Appalachian Trail covers “a particular parcel of land,” but the land and the easement remain separate. Applying these same principles to federal agencies with overlapping jurisdiction over land owned by the federal government, the Trails Act, with its stated purpose of administering the trail as a footpath, did not divest the Forest Service of authority over land within the national forest. “A trail is trail, and land is land.”
The dissent argued that the answer lay not in a “complicated discussion of private-law easements,” but in statutory text. Land in federal ownership has a single owner—the United States—and administration of that land could be determined by three “interlocking” statutes.
The Trails Act tasked the Interior Department with administering this trail, using authorities related to units of the park system, and the Interior Department had officially delegated that responsibility to the Park Service decades ago. By definition, land in the park system includes “any area of land” administered by the Park Service. For the dissent, the Organic Act left no room to treat a trail any differently than land. The “trail is land, land on which generations of people have walked.”
According to the dissent, federal law has not distinguished the trail from land any more than it has monuments, historic buildings, and parkways, all of which are park system units.
Finally, although the Leasing Act authorizes the Secretary of the Interior or the appropriate agency head to grant rights-of-way for gas pipelines through federal lands, the Leasing Act excludes “lands in the National Park System.” Because the trail is land in the park system, the dissent concluded that no federal agency has authority under the Leasing Act “to grant a pipeline right-of-way across such lands.” The Trails Act, on the other hand, reserved to the Interior Department, as trail administrator, authority to grant rights-of-way across the trail.
In rejecting the dissent’s textual analysis, the majority found the dissent placed too much weight on the Interior Department’s choice to delegate administration of the trail to the Park Service, even if that delegation responded to congressional direction in the Trails Act and preceded broad enactments that brought historic and recreation areas within the park system.
The Court required a “clear congressional command” to curtail the Forest Service’s authority to grant pipeline rights-of-way. Invoking Epic Systems v. Lewis, the majority found that the agency’s delegation and subsequent congressional enactments did not provide “the requisite clarity to place that intent beyond dispute” and so turned to property law principles for clarity.
In Epic Systems, the Court rejected a statutory interpretation argument that it deemed a “triple bank shot.” The majority found arbitration clauses in individual contracts were enforceable under the Federal Arbitration Act and unaltered by the later-enacted National Labor Relations Act (NLRA), which guarantees workers the right to engage in activities for the purpose of collective bargaining or other mutual aid or protection, even for collective claims brought under the Fair Labor Standards Act. The Court held that although “Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA—much less that it manifested a clear intention to displace the Arbitration Act.”
In relying on Epic Systems, the majority in Cowpasture arguably signaled its inclination to expand similar reasoning to cases where the interaction between statutory text and the question at hand is much closer, and goes beyond, for example, the domain of disfavored repeals by implication. In addition, although the Court in Epic Systems counsels that when confronted with two acts touching the same topic, the Court must “strive ‘to give effect to both,’” the Cowpasture majority elected not to reconcile a separate provision of the Trails Act, which assigns authority for granting rights-of-way “under” the trail to the Interior Department as the trail administrator. The majority instead declared that question of “no moment” to whether the Forest Service was divested of right-of-way authority under the Leasing Act.
In the end, any significance of Cowpasture will have to be determined by projects in the future. This is because, despite their victory in Cowpasture, proponents of the Atlantic Coast Pipeline abandoned the project soon after the Court’s decision, citing ongoing delays and legal uncertainties.
This essay is part of a series entitled The Supreme Court’s 2019-2020 Regulatory Term.