On June 15, 2020, the Supreme Court of the United States decided United States Forest Service et al. v. Cowpasture River Preservation Association et al. (Cowpasture). In a 7-2 decision, the court authorized the U.S. Forest Service (Forest Service) to reinstate a special use permit under the Mineral Leasing Act of 1920 (Leasing Act) to allow the Atlantic Coast Pipeline (ACP) to cross a portion of the Appalachian National Scenic Trail (the Trail) that traverses the George Washington National Forest in West Virginia (GW Forest). The decision removes a significant obstacle to the ACP, but other legal roadblocks remain.
The interstate natural gas pipeline’s proposed right-of-way includes 16 miles of land located within the GW Forest, of which an approximately 0.1-mile segment would cross 600 feet below the Trail. In 2018, the U.S. Court of Appeals for the 4th Circuit (4th Circuit) invalidated ACP’s 2018 Forest Service permit on grounds that the Trail was an “area of land” within the National Park System and not subject to the Forest Service’s Leasing Act jurisdiction. This decision immediately threw into doubt whether the pipeline could be completed.
The Trail traverses the GW Forest pursuant to a right-of-way agreement between the Forest Service and the Secretary of the Interior, who has the authority to administer the Trail under the National Trails System Act of 1968 (Trails Act). In 1969, the Secretary of the Interior delegated this authority to the National Park Service. Cowpasture reviewed a number of federal statutes to determine whether this delegation had transformed the Trail from lands owned by the Forest Service and encumbered by an easement, to National Park System lands. The court’s analysis considered the intersection of several federal statutes, including the Weeks Act of 1911 (which permits the Secretary of Agriculture, through the U.S. Forest Service, to acquire lands for the National Forest System), the Trails Act (establishing the Trail through rights-of-way agreements between the Secretary of the Interior and other federal agencies, states, local governments and private landowners) and the Leasing Act (permitting the Secretary of the Interior to grant pipeline rights-of-way through public lands, including National Forests, and it has since been amended to exclude lands in the National Park System).
Ultimately, the court’s decision turned on basic principles of property law. It found that rights‑of-way agreements between the Forest Service and the Secretary of the Interior to authorize portions of the Trail within national forests did not convert “Federal lands” into “lands” within the “National Park System.” Rather, they created a type of easement across the land, not jurisdiction over the land itself. The Secretary of the Interior’s decision to assign responsibility to the National Park Service, which is not enshrined in any statutory authority, did not transform the land’s ownership structure.
It is expected that ACP will receive reinstated permits to complete the Trail crossing within the next few months. However, absent further judicial intervention, project completion will be delayed by the U.S. Army Corps of Engineers’ recent determination to suspend use of Nationwide Permit 12 in light of recent court rulings, as ACP requires Clean Water Act authorization for some of its waterbody crossings. Additional federal permits and actions also remain pending.