Next February, the U.S. Supreme Court will review the 2018 decision by the 4th Circuit Court of Appeals, Cowpasture River Preservation Association, et al. v. United States Forest Service, blocking the proposed Atlantic Coast Pipeline, and the outcome of this case is critical for the future of natural gas on the East Coast. In a December 9th amicus curiae brief submitted to the Supreme Court, West Virginia and 17 other states make a strong legal and policy case for approving the pipeline.
The proposed pipeline would carry natural gas from West Virginia to customers in Virginia and North Carolina. In so doing, it would cross the Appalachian Trail, America’s longest hiking trail encompassing 2,100 miles of federal, state, and private lands from Georgia to Maine. Dozens of pipelines already cross the trail, but the Atlantic Coast Pipeline and other new ones are needed for states experiencing a fracking boom west of the trail to transport natural gas to the population centers on the East Coast where it is needed. Without the Atlantic Coast Pipeline and others, much of the East Coast would be deprived of the full benefit of America’s newfound natural gas abundance, and President Trump’s energy dominance agenda would take a significant hit.
In an unprecedented decision that casts doubt on the legality of any new East-West gas pipelines serving Atlantic states (as well as reauthorizations of existing ones), the 4th Circuit essentially decided that the trail has the status of a national park, which would make pipeline crossings virtually impossible. In so doing, the court shot down the Department of Agriculture’s Forest Service permit approval (the crossing point is on land managed by the U.S. Forest Service), agreeing with environmental litigants that the Department of Interior’s National Park Service is the proper agency to (not) approve such pipelines.
In the December 9th amicus brief, the states explained the legal faults with this decision as well as its energy policy implications. Most significantly, it demonstrates convincingly that, since the pipeline bisects the trail on Forest Service land, the Forest Service was indeed the proper agency to issue permits. The mere fact that the Park Service has limited authority under the National Trails System Act of 1968 to administer the trail itself doesn’t change that, and allowing such a strange interpretation could deprive the East Coast of needed supplies for homes and businesses. In fact, the brief notes that the Trails Act explicitly states that “[n]othing contained in this Act shall be deemed to transfer among Federal agencies any management responsibilities established under any other law for federally administered lands which are components of the National Trails System.”
The misuse of the Appalachian Trail to block natural gas pipelines is but one of many means by which climate activists, in the absence of any explicit legal authority to target fossil fuels, misuse existing authority in order to do so. In 2020, the Supreme Court will have an opportunity to right this wrong.