By Noah Sachs
A note before you begin: Noah Sachs is a law professor. Law professors are like lawyers only more so. There is a constant danger that they will veer off into jargon, law talk, or worse. Fortunately, this story avoids those tendencies. It is long by Voice standards but if you read it all the way through you will really understand the case before the Supreme Court. So have at it.
The question of the trail’s ownership looms large in a case now pending in the Supreme Court of the United States. The answer could determine the fate of natural gas megaprojects on the East Coast.
The stakes are high. The lawsuit over this section of the Appalachian Trail could determine the fate of some of the largest natural gas deposits in North America. In a landmark decision last December, the Fourth Circuit Court of Appeals in Richmond axed the project—for now. That court found that the entire Appalachian Trail from Georgia to Maine is part of the National Park System, blocking federal agencies from authorizing a pipeline crossing. The astonishing decision upended the U.S. natural gas industry and also jeopardizes other pipeline projects with proposed routes across the trail.
Both the Trump administration and Dominion petitioned the Supreme Court of the United States to review the Fourth Circuit decision; the Supreme Court has now agreed to hear the case. If the Fourth Circuit decision stands, the Atlantic Coast Pipeline will likely be doomed unless it gets a congressional exemption or Dominion chooses a costly new route. (Full disclosure: I’m on the board of an environmental group, Virginia Conservation Network, that has opposed the Atlantic Coast Pipeline, but VCN is not a party to any of the pipeline litigation.)
The Appalachian Trail, the longest continuous hiking-only route in the world, occupies a strange legal landscape. No one had an incentive to determine conclusively who controlled sections of the trail—until now. But who controls the trail affects everything from jobs and energy resources to water quality and climate change. The Appalachian Trail has long been a story of power, property, jurisdiction, and land rights, and the quandaries surrounding those issues now fuel this case. Is the Appalachian Trail part of the National Park System even when it runs through property that the Park Service doesn’t own? If so, what does that mean for users of the trail? And how can U.S. energy policy support pipeline construction through public lands and at the same time allow a narrow strip of footpath to block the projects?
Federal law allows pipeline rights-of-way in national forests, and 55 other oil and natural gas pipelines already cross under the Appalachian Trail at 34 separate locations (sometimes several pipelines cross at a single location). The Forest Service assumed it had authority over the pipeline and the tunneling under the Appalachian Trail since the proposed crossing is within the boundaries of the George Washington National Forest, land that the Forest Service purchased in 1918.
But Congress put the Park Service in charge of administering the entire Appalachian Trail, and agencies can’t approve pipelines on Park Service lands. For decades, the Park Service has claimed the whole trail as one of the 419 official units of the National Park System, an authority that the Forest Service has acknowledged. The Cowpasture suit was filed in 2017 by the nonprofit Southern Environmental Law Center (SELC) to challenge the ACP’s Forest Service approvals.
Who is really in charge of this stretch of the Appalachian Trail near the Three Ridges Overlook? No single entity owns the whole footpath. It meanders continuously for 2,100 miles through 14 states. It crosses 717 miles of national parks, 423 miles of state and private lands, and 1,006 miles of Forest Service lands. At the midpoint of the trail in Harpers Ferry, West Virginia, the trail runs right down city streets. At Bear Mountain, New York, it travels across the Hudson River on a bridge owned by the state of New York.
Born in the Progressive Era, the Appalachian Trail was assembled from dozens of smaller trails that had been operated by various hiking clubs. By 1937, the full route was complete, but there was no overarching federal protection until Congress passed the National Trails System Act in 1968, which designated the Appalachian Trail as a “national scenic trail” and tasked the National Park Service with administering the path. With funding from Congress, the Park Service purchased 825 trail miles from private landowners in the early 1980s. But authority was still dispersed. Today, nearly half the trail runs through Forest Service lands.
Meanwhile, the Trump administration, which has never met a fossil fuel deposit it didn’t want to exploit, quickly got behind the ACP. Reversing Obama administration policy in 2017, the Forest Service blessed a route through the Monongahela and George Washington National Forests that included tunneling 700 feet beneath the trail (the pipeline will be buried a few feet belowground along the rest of the route).
Even with tunneling, the ACP would wreck the wilderness experience of being on the trail. And it’s not just one pipeline. Another project owned by a different developer, Mountain Valley Pipeline (MVP), is further along in construction, on a more southerly route than the ACP, and it also needs an Appalachian Trail crossing. Environmentalists have locked themselves to bulldozers and are slamming the MVP with lawsuits. The developers are fighting back, citing construction jobs and billions in economic activity. They also argue that cleaner-burning natural gas is needed to replace aging coal-fired power plants.
But the other lawsuits don’t have the same national impact as the Appalachian Trail case. The Fourth Circuit was the first court to conclude that the entire Appalachian Trail is part of the National Park System, giving the trail a talismanic power to block energy projects. The Forest Service’s ACP approval was bogus, the court said, because it lacked authority to give it, even within the George Washington National Forest. Judge Stephanie Thacker, writing for the court, concluded that the Forest Service had “abdicated its responsibility to preserve national forest resources.” She invoked Dr. Seuss and quoted The Lorax: “We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’”
This wasn’t a case where two federal agencies were at loggerheads over jurisdiction. In fact, the National Park Service under President Trump acquiesced in the Forest Service permitting process for the pipeline. Instead, the court found that federal law doesn’t allow either agency to approve a pipeline crossing under a trail in the National Park System. The ruling could set a precedent for other trails administered by the secretary of the interior, such as the Natchez Trace Scenic Trail from Mississippi to Tennessee, or the North Country Scenic Trail from New York to North Dakota.
Did the court get it right? A plain reading of the applicable statutes shows that it did. At the heart of this case is the 1920 Mineral Leasing Act, which governs energy development on public lands. That law allows pipeline rights-of-way on “all lands owned by the United States,” except “lands in the National Park System.” Is the Appalachian Trail a land “in the National Park System”? According to the Fourth Circuit, the answer is yes because Congress defined the National Park System, in a 1916 law, to include “any area of land and water administered” by the Park Service.
“Administered” is the key word because 50 years later, in the 1968 National Trails System Act, Congress gave administrative authority over the Appalachian Trail to the secretary of the interior, who then delegated it to the Park Service. Congress gave the U.S. Forest Service administrative authority over other trails (like the Pacific Crest Trail in California), but not the Appalachian Trail. Piecing together multiple statutes enacted decades apart, the Fourth Circuit concluded that the Park Service’s administration of the Appalachian Trail makes the trail part of the National Park System. The court was saying Dominion should go to Capitol Hill, not the courts, if it wants an exemption.
In their respective Supreme Court petitions, the Trump administration and Dominion stressed the billions in economic gains from the pipeline. For the Trump administration, the Cowpasture decision throws a wrench into plans to fast-track pipelines and exploit natural gas resources to achieve U.S. energy “dominance.” Arguing for the administration, Solicitor General Noel Francisco labeled the trail a mere “ribbon of land” in a national forest and asserted that the Cowpasture decision threatens “significant and immediate adverse consequences” for energy infrastructure in the eastern United States.
Dominion, represented by serial Supreme Court litigator Paul Clement, argued that the decision effected “a massive unauthorized land transfer” from the Forest Service to the Park Service. It also “imperiled the Eastern Seaboard’s ability to access inland oil and gas sources.”
A final decision would likely come next spring. A lot depends on whether the conservatives on the court give as much weight to the National Trails System Act as the Fourth Circuit did. With a strong conception of property rights, the conservatives might say that the Park Service’s authority to “administer” the trail does not give it the power to determine what happens on or underneath the trail on lands it doesn’t own.
The justices might want clearer language from Congress. At least five justices may be open to the argument that Congress would not have made a dramatic change to laws governing pipeline rights-of-way through a seemingly unrelated law about scenic trails. As Dominion argued in a brief last year, quoting an opinion by the late Justice Antonin Scalia, Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”
Did the Fourth Circuit really turn the Appalachian Trail into a “Great Wall” that blocks all energy transport from the Midwest to the East Coast, as many energy industry analysts have suggested? And what about those 55 pipelines that already cross under the trail? Maybe this is a case of environmentalists tolerating existing blemishes on the landscape while targeting their legal firepower on what seems new and scary.
A document released in June by Southern Environmental Law Center attorney Austin D.J. Gerken helps to clarify the stakes. Gerken conducted a land parcel analysis on every one of the 55 pipelines (at 34 crossing points). It shows that in each case, the pipelines crossed under the Appalachian Trail on state or private land, or the pipelines existed before the National Park Service acquired the land.
This is apparently the first time that the Forest Service has authorized a pipeline to cross the Appalachian Trail on federal property. If so, the Fourth Circuit engaged in a reasonable slap-back of a federal agency that exceeded its authority under the Mineral Leasing Act. According to Gerken, the Cowpasture decision doesn’t preclude all pipeline crossings of the Appalachian Trail—in fact, he suggested alternate ACP crossing points on state or private land. This could take some of the heat off this case and make the Fourth Circuit decision appear more reasonable to the Supreme Court.
Noah Sachs is a professor at the University of Richmond School of Law. This is a shortened, and slightly updated, version of something he wrote for The American Prospect in August, 2019. Used with the permission of The American Prospect, “Can the Appalachian Trail Block a Natural Gas Pipeline,” by Noah Sachs. © The American Prospect, Prospect.org, 2019. All rights reserved. To read the whole thing, go to