Supreme Court Rules U.S. Forest Service Can Grant Pipeline Right-of-Way Under Appalachian Trail

On June 15, the Supreme Court ruled 7-2 in our clients’ favor, holding that the U.S. Forest Service has authority to grant a pipeline right-of-way that crosses underneath the Appalachian Trail within a national forest. Beveridge & Diamond represented an amici coalition of over 20 trade associations across various sectors, both at the 4th Circuit and at the Supreme Court (which reversed the 4th Circuit’s ruling that the land was instead National Park Service land and thus precluded any pipeline right-of-way without additional legislation by Congress). The B&D team included principals John Cruden, Jamie Auslander, and Peter Schaumberg. We provide a more detailed description of the February 24 oral argument here

In Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, the proponent of a natural gas pipeline project acquired a special use permit from the Forest Service, obtaining a right-of-way for a 0.1-mile segment of pipe approximately 600 feet below a part of the Appalachian Trail. Opponents to the project argued that the special use permit violated the Mineral Leasing Act (MLA) because the MLA prohibits pipeline rights-of-way through National Park System lands, and because the Appalachian Trail and its underlying land within the George Washington National Forest had instead become a part of the National Park System. The Fourth Circuit agreed, holding for the first time that the Forest Service thus lacked authority to issue a special use permit underlying a scenic trail within a national forest.

The Supreme Court reversed the Fourth Circuit, focusing on the distinction between the trail “footpath” and the underlying land. Writing for the majority and interpreting interrelated statutes governing federally-managed lands, Justice Thomas concluded that neither Congress nor the Department of the Interior had transformed the land beneath the Appalachian Trail from a national forest into a national park. Rather, the Appalachian Trail merely constitutes a right-of-way or easement across Forest Service land. As a result, the National Park Service administers only a surface easement for the Appalachian Trail, and the Forest Service retains jurisdiction to grant pipeline rights-of-way under the MLA. The decision is a significant victory for energy pipeline project proponents, as it removes a legal obstacle to pipeline development that otherwise would have required a separate act of Congress. Legal challenges to these projects on a variety of other grounds are ongoing.

B&D’s John Cruden and Allyn Stern previously shared key takeaways following the oral argument. This case has been covered in news outlets, including the article, "Justices Say $8B Pipeline Can Cross Appalachian Trail" in Law360 (subscription may be required).

B&D’s Litigation practice spans federal and state trial and appellate courts across the U.S., including the U.S. Supreme Court. B&D’s Natural Resources and Federal Lands practice counsels clients on resource and project development on federally-managed and private lands, all aspects of environmental permitting, regulatory enforcement, and litigation. Clients entrust us with novel and complex litigation matters vital to their continuing operation and success. For more information, please contact the authors.