Wednesday, May 31, 2023 | Back issues
Courthouse News Service Courthouse News Service

High Court Green-Lights Pipeline Route Through Appalachian Trail

With a 7-2 Supreme Court reversal, Atlantic Coast Pipeline on Monday won the right to cut through the Appalachian Trail.

WASHINGTON (CN) — Atlantic Coast Pipeline won the right to cut through the Appalachian Trail with a 7-2 Supreme Court reversal on Monday.

Once completed, the 605-mile natural gas pipeline will span West Virginia to North Carolina, including one 16-mile stretch of the George Washington National Forest.

Though the pipeline company obtained special-use permits to that end from the U.S. Forest Service, environmental groups that filed suit claimed that any work would require congressional approval because a tenth of the pipeline in the forest would run through the Appalachian Trail.

The Fourth Circuit agreed to block construction on the basis that the National Park Service administers the Appalachian Trail, but the Supreme Court reversed Monday.

Writing for the majority, Justice Clarence Thomas said federal lands cannot be converted into the property of the National Park System merely because the Park Service obtained rights-of-way agreements for the length of the trail within national forests.

“Easements are not land, they merely burden land that continues to be owned by another,” he wrote.

“If analyzed as a right-of-way between two private land-owners, determining whether any land had been transferred would be simple,” the 18-page opinion continues. “If a rancher granted a neighbor an easement across his land for a horse trail, no one would think that the rancher had conveyed ownership over that land. … Likewise, when a company obtains a right-of-way to lay a segment of pipeline through a private owner’s land, no one would think that the company had obtained ownership over the land through which the pipeline passes.”

Dominion Energy — one of the energy companies expected to eventually construct the pipeline — applauded the outcome, with spokeswoman Ann Nallo saying it will also be welcomed by people and communities who are depending on the pipeline for “jobs, economic growth and clean energy.”  

“Communities across Hampton Roads, Virginia and eastern North Carolina are experiencing chronic shortages of natural gas,” Nallo said in a statement. “They urgently need new infrastructure to support military bases, manufacturing and home heating. The ACP will also support our region’s transition from coal and the rapid expansion of renewables, both of which are essential to Dominion Energy’s and Duke Energy’s plans to achieve net zero emissions by 2050.”

Monday’s reversal triggered an impassioned dissent from Justice Sonia Sotomayor, who wrote the court went against “a half century of agency understanding and common sense.”

“Unless the court means to imply that the Appalachian Trail is water, the trail must be land in the Park System,” Sotomayor wrote. “Indeed the court’s atextual reading unsettles much of the Park System as we know it. … These monuments, houses, roads and recreational areas are just as much ‘land’ in the Park System as is a foot trail worn into the earth.”  

D.J. Gerken, director of the Southern Environmental Law Center Program, said in a statement Monday that the court's decision only address “one of the many problems faced by the Atlantic Coast Pipeline.”  

“This is not a viable project,” Gerken said in a statement. “It is still missing many required authorizations, including the Forest Service permit at issue in today’s case and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power. It’s time for these developers to move on and reinvest the billions of dollars planned for this boondoggle into the renewable energy that Virginia and North Carolina customers want and deserve.” 

Along with the Cowpasture River Preservation Association, Gerken’s group signed is among those fighting construction of pipeline along the Appalachian Trail.

Discussion of the Trails System Act, a federal law establishing recreational trails in America’s national parks and doling out the authority of those trails, dominates Thomas’ opinion. Asserting that while the secretary of the interior has authority in that legislation to “administer” the land primarily as a footpath, it is the National Park Service “that performs the necessary physical work.”

Looking to Sotomayor’s dissent, which was joined by Justice Elena Kagan, Thomas said Congress would have enacted “exceedingly clear language” if it wanted to alter the balances of power between the federal and state governments and privately owned lands.  

“Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: a trail is a trail and land is land,” Thomas wrote.  

Sotomayor meanwhile noted that the National Park Service itself has long referred to the Appalachian Trail as land in the Park System, most recently doing so in a 2019 reference manual.

The dissent also questions the failure to explain how the Appalachian Trail could be a separate parcel under National Park System authority if the trails do not constitute land.

The court does not differentiate between “lands,” and for example, national monuments administered by the Park System, she wrote.  

Paul Clement at Kirkland & Ellis represents Atlantic Coast Pipeline but did not return a request for comment Monday.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.