By John McFerrin
The United States Supreme Court has reversed the Court of Appeals for the Fourth Circuit and held that the United States Forest Service was within its authority to allow the Atlantic Coast Pipeline to cross the Appalachian Trail.
The dispute focused on the Appalachian Trail. The Trail itself runs from Maine to Georgia. On its way, it passes through the George Washington National Forest. There it is in the proposed pathway of the Atlantic Coast Pipeline. If built, the Pipeline would have to cross the Trail somewhere.
Everybody agrees that the Pipeline would have to get approval from somebody to cross the Trail. This case was about who has authority to give that permission. The United States Forest Service, which administers the George Washington National Forest, thought that it had authority to grant that permission. The United States Court of Appeals for the Fourth Circuit disagreed. It ruled that the Forest Service did not have that authority. It ruled that the Trail is under the control of the National Park Service and that, because of this, the Forest Service has no authority to give permission to cross.
One way to look at this case is that it is just a case of statutory interpretation: did Congress give the Forest Service the authority to give permission to cross the Trail? One statute creates the National Forests and says how land in the National Forest may be used. Another creates the National Park system and says how lands within its jurisdiction may be used. A third gives the right to grant rights of way to different agencies and gives those agencies the authority to grant rights of way across lands they control. The Supreme Court had the task of figuring out how all these statutes fit together.
In the Court’s view, the case turns on whether there is a distinction between the Appalachian Trail and the Forest Service land upon which it is located. If Congress gave control over the Trail to the Park Service, does that mean that it gave control of the land upon which it is located. Or did the Forest Service keep all that is below the surface, including where the Atlantic Coast Pipeline would cross?
Even is the whole discussion sounds at times as if they are warming up for a discussion of how many angels can dance on the head of a pin, the bottom line is that the Forest Service has the power to authorize crossing of the Appalachian Trail by the Atlantic Coast Pipeline. One barrier to construction has now fallen.
This does not mean that it will necessarily be built. The Southern Environmental Law Center responded to the decision by channeling its inner Yogi Berra, pointing out the legal and financial difficulties that remain. A slightly shortened version of its statement appears on page 3.