Supreme Court Poised to Give ‘All Clear’ on Atlantic Coast Pipeline

WASHINGTON (CN) — With a focus on which federal agency, if any, has authority over a portion of Appalachian Trail inside a national forest, the Supreme Court appeared inclined Monday to reinstate a permit for the 605-mile Atlantic Coast Pipeline.

Though the permit was issued in 2017 by the National Forest Service, which is responsible for the George Washington National Forest, the Fourth Circuit vacated that permit the following year after determining that the call should have come from the National Park Service as operator of the trail.

This Feb. 8, 2018, file photo shows signs that mark the route of the Atlantic Coast Pipeline in Deerfield, Va. The U.S. Supreme Court is set to wade into a long-running battle between developers of the 605-mile natural gas pipeline and environmental groups who oppose the pipeline crossing the storied Appalachian Trail. On Monday, Feb. 24, 2020, the high court will hear arguments on a critical permit needed by developers of the Atlantic Coast Pipeline. (AP Photo/Steve Helber)

In addition to the dispute over the authority of the two agencies, the case implicates the dueling authorities of the Mineral Leasing Act and the National Trails System Act.

Justice Samuel Alito emphasized meanwhile that the squabble could be settled with a simple definition of what constitutes the trail.

“Why can’t we just say that the trail is on the surface, and something that happens 600 feet below the surface is not on the trail?” Alito asked.

The proposal was one welcomed by Kirkland & Ellis attorney Paul Clement, an attorney for the developers who was otherwise congratulated this morning for making his 100th appearance and argument before the court.

“You could do that Justice Alito and I suppose my clients would be perfectly happy to win this case on that ground,” Clement said to laughter from the court. “I do think though, that there is a critical difference between administrative authority over that trail up there and administrative authority over the lands.”

Justice Neil Gorsuch appeared inclined to reinstate the permit as well, saying the opponents of the pipeline were unwittingly opening up a Pandora’s box for national parks in the American West.

“If the land goes with the assignment of the management authority for the trail, then you have the circumstance that a lot of western national parks, Sequoia, Yosemite, others, there are now ribbons throughout those national parks that belong to the Forest Service and that would be at least open to pipeline development,” Gorsuch said.

“So, while you might thwart a pipeline here,” the judge continued, “it’s not a costless, it’s not a zero-sum gain. You’re going to invite pipelines elsewhere.”

Michael Kellogg, an attorney with the firm Kellogg Hansen arguing for pipeline opponents at the Cowpasture River Preservation Association, responded by using the example of the Pacific Crest Trail.

“Where it runs across Forest Service lands, where it runs across state, local, or private lands, then the Mineral Leasing Act would allow a pipeline to run,” Kellogg said.

“Now, they raise the hypothetical, well, couldn’t the Forest Service Dig up the entire trail and snake a pipeline through there? I would suggest no, both as a legal matter and of course as a practical matter, they couldn’t. But as a legal matter, they couldn’t because they can only allow uses that are consistent with the purposes of the trail. So, I think that’s a false hypothetical.”

The court also heard an argument in the case from Anthony Yang, assistant to the U.S. solicitor general, who said it is the position of the Forest Service that the Appalachian Trail is administered by the Park Service but does not represent lands within the National Park System.

Justice Elena Kagan appeared troubled by the distinction.

“I don’t know really quite how to say it except that nobody makes this distinction in real life,” Kagan said. “When you walk on the trail, when you bike on the trail, when you backpack on the trail, you’re backpacking and biking and walking on land, aren’t you?”

Yang replied by referencing another famous trail.

“You’re certainly sometimes walking on land,” he said You’re also walking on things like bridges. You’re also walking on for instance, trails include waterways,” Yang said. “So, Congress recently enacted, expanded the Lewis and Clark Trail to include the Ohio River. All of the Ohio River from Pittsburgh to the Mississippi, then the Missouri up to St. Louis, and all the way to the — to the West Coast from there. No one thinks that those waters are all in the National Parks Service.”

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