A decade ago, one would be hard pressed to find more than a handful of federal court decisions involving challenges to agency approvals of interstate oil and natural gas pipelines. Times have surely changed. As environmental groups campaign aggressively to stop construction of all fossil-fuel pipelines, two projects planned to bring Marcellus- and Utica-field natural gas from West Virginia and Pennsylvania to East Coast markets have begun claiming the headline space previously dominated by Keystone XL and Dakota Access. The Mountain Valley Pipeline (MVP) project and the Atlantic Coast Pipeline (ACP) project are making news and making law.
This article profiles a December 2018 decision by a panel of the Richmond, Virginia-based U.S. Court of Appeals for the Fourth Circuit that, if allowed to stand, upends key public land law, slows development of ACP and MVP, and thwarts major elements of the Trump administration’s push for gas pipeline development. Not to be overlooked, the opinion also taps into a new vein of legal authority that may be of keen interest to practitioners. More on that later.
MVP is a 303-mile natural gas pipeline in West Virginia and Virginia; ACP is a 604.5-mile natural gas pipeline from West Virginia to South Carolina. MVP and ACP received required authorizations from various federal and state agencies in late 2017. Shortly thereafter, project opponents filed petitions for review regarding many of those authorizations. Due to the judicial review provisions of the Natural Gas Act, opponents filed their challenges in the Fourth Circuit and D.C. Circuit.
For MVP, project opponents targeted the Clean Water Act (CWA) section 404 permits and section 401 water quality certifications, the Bureau of Land Management right-of-way grant across the Jefferson National Forest and the U.S. Forest Service project-specific amendments to the Forest Plan for that national forest, and the Federal Energy Regulatory Commission (FERC) certificate of public convenience and necessity.
For ACP, the challengers aimed at one of the project’s CWA section 401 water quality certifications, the U.S. Fish and Wildlife Service biological opinion (and a second suit against the revised biological opinion issued after remand), the National Park Service (NPS) right-of-way grant across the Blue Ridge Parkway, the FERC certificate, and the Forest Service special use permit for a right-of-way grant across the Monongahela and George Washington National Forests. The Forest Service right-of-way authorized pipeline construction that would trench through roughly 21 miles of federal forest land, and tunnel 800 feet below a portion of the Blue Ridge Mountains south of Charlottesville in a location on the national forest that includes a segment the Appalachian National Scenic Trail (Appalachian Trail or Trail).
The Fourth Circuit has issued a series of decisions adverse to the United States and the pipeline projects, vacating permits and remanding decisions. Each of these decisions involves interesting legal issues, and many evidence an unprecedented level of judicial scrutiny of agency decision-making. However, the most unexpected holding is found in the Fourth Circuit’s decision in Cowpasture River Preservation Association v. Forest Service, 911 F.3d 150 (4th Cir. 2018) (Cowpasture), regarding Forest Service’s issuance of right-of-way grant to ACP to tunnel under the Appalachian Trail.
Congress established the approximately 2,200-mile-long Appalachian Trail in 1968 under the National Trails System Act and directed that the Trail be administered by the secretary of the interior. 16 U.S.C. § 1244(a)(1). The secretary subsequently delegated that authority to NPS. See 34 Fed. Reg. 14,337 (Sept. 12, 1969). Thus, NPS administers the entire Appalachian Trail and has designated it as a unit of the National Park System. See www.nps.gov/aboutus/national-park-system.htm. However, the land crossed by the Appalachian Trail includes a mix of private, state, and federal lands; approximately half of the Trail is located on lands within National Forest System managed by the Forest Service. Prior to the Cowpasture decision, the Forest Service and NPS, along with the 11 states crossed by the Trail and key conservation groups, had long recognized that where the Appalachian Trail crosses lands acquired by the federal government for the National Forest System, the Forest Service retained jurisdiction regarding the management of those lands, including issuance of rights-of-way across the Trail.
For ACP, the Forest Service issued the right-of-way grant pursuant to Mineral Leasing Act (MLA), which authorizes “[r]ights-of-way through any Federal lands” for natural gas pipelines. 30 U.S.C. § 185(a). The MLA defines “Federal lands” as “all lands owned by the United States except lands in the National Park System, lands held in trust for an Indian or Indian tribe, and lands on the Outer Continental Shelf.” Id. § 185(b)(1) (emphasis added). Based on this definition, petitioners in Cowpasture challenged the Forest Service’s authority to issue a right-of-way pursuant to the MLA under the Appalachian Trail, an issue that no other court had considered before. Upending decades of Trail management, the Fourth Circuit agreed.
The Fourth Circuit based its holding on the following simple syllogism. The MLA authorizes rights-of-way for oil and gas pipelines only across “Federal lands,” a category of lands specifically defined under the MLA to exclude lands in the National Park System. Cowpasture, 911 F.3d at 179 (citing 30 U.S.C. § 185(a), (b)(1)). Under NPS’s Organic Act, the National Park System includes “any area of land and water administered by the Secretary [of the Interior],” acting through NPS. Id. (citing 54 U.S.C. § 100501). Congress designated the Appalachian Trail as a National Scenic Trail to be administered by the secretary of the interior, who delegated that authority to NPS. Id. (citing 16 U.S.C. § 1244(a)(1)). Thus, because it is administered by NPS, the Appalachian Trail is “land in the National Park System” and is not a category of federal lands across which agencies may grant a pipeline right-of-way under the MLA. Id. at 179, 180. Based on this holding, the Fourth Circuit vacated the Forest Service’s right-of-way grant to ACP. According to the court, decisions impacting the Trail belong to the NPS, irrespective of the footpath’s location on National Forest System land.
The reasoning of the Cowpasture panel stopped with the finding that the Forest Service could not issue a right-of-way for the pipeline to cross the NPS-administered Appalachian Trail. The opinion is silent on a consequential fact: NPS has no general authority to grant rights-of-way for gas and petroleum pipelines to cross national park land. The Cowpasture decision effectively erased any source of federal authority to issue a right-of-way allowing ACP (or, by extension, MVP) to cross under the Appalachian Trail. And because the Appalachian Trail runs 2,200 miles through 11 states from Maine to Georgia, the decision, if applied outside the jurisdiction of the Fourth Circuit, may mean that no federal agency is empowered to issue a right-of-way for virtually any new gas pipeline connecting the Marcellus and Utica gas fields to eastern seaboard markets.
Over the half-century since Congress passed the National Trails System Act and authorized the Appalachian Trail as the nation’s first national scenic trail, the shared understanding of every federal and state agency and stakeholder group involved with the Trail had been that the NPS’s administrative role over the Trail did not change the jurisdiction or authorities of the Forest Service or other federal agencies responsible for the land traversed by about half of the distance of the Trail. Nor did Congress create national park lands atop the state and private lands that host much of the other half of the Trail’s extent. There is no suggestion in the law or administrative history of the National Trails System Act that a purpose of the law was to shift pipeline or other permitting decisions on national forest lands to the NPS in areas of national forest land used for the Appalachian Trail. In short, the general understanding had long been that the Trail was to be a federally coordinated footpath, a use, or a program under the overall coordination of the secretary of the interior. While the Trail would, among other things, connect some national parks to each other, including Shenandoah and Great Smoky Mountains, the Trail itself was not meant to turn the lands it uses into national park land.
Unstated in the panel’s opinion, but unmistakable to observers of the Fourth Circuit’s recent string of opinions regarding federal permitting of ACP and MVP, was the court’s deep skepticism toward the integrity of decision-making within the Forest Service and the Trump administration. Taken together, the recent opinions amount to a broad rejection of the administration’s approach to pipeline development. It is not difficult to see parallels between these environment- and energy-related decisions and an array of decisions involving successful challenges to other categories of administration policy.
If the Cowpasture panel can be said to have thrown the book at the government, the actual projectile was a thin, but formidable volume that, coincidentally, may have also influenced the career paths of many environmental lawyers: The Lorax. The panel cited Dr. Seuss’s illustrated call for forest stewardship as it chided the Forest Service for failing to do as the Lorax did, and speak for the trees. See Cowpasture, 911 F.3d at 183. And, per the panel’s logic, if the Forest Service could not speak for the trees, it certainly could not be allowed to have its way with the Appalachian Trail, a treasured piece of American conservation history entrusted at least in some way to the NPS.
With what degree of ill-regard must a federal appellate court panel hold an agency’s decision before opting to invoke Dr. Seuss as authority? How one-sided must the circumstances seem? The answer to those questions is probably the same as the reason the entire membership of the court rejected strenuous government and industry petitions for rehearing en banc without troubling to wait to receive response briefs from the environmental petitioners.
Throwing the book, the panel made not only a point about their view of the Trump administration’s pipeline permitting but also affirmed the wisdom in every parent’s finger-waving admonition: “Don’t throw that book; you might break something!” And break something it did. Consider just this quick subset of post-Cowpasture questions:
- Most Appalachian Trail segments in national forest lands have no boundaries designated, so where does NPS “land” begin and end?
- If the Appalachian Trail is NPS land as a matter of law, what authorities apply to the Trail besides a prohibition on MLA rights-of-way?
- If NPS has newly recognized jurisdiction, will NPS staff and budgets displace Forest Service personnel and funding?
- What does Cowpasture mean for Trail segments located on state and private lands? Are those public and private landowners now the neighbors or hosts of a newly minted national park?
- Numerous gas and other pipelines cross the Appalachian Trail, some constructed before enactment of the National Trails System Act and others granted rights-of-way by the Forest Service. What happens when existing easements or rights-of-way expire or require revision?
- What does Cowpasture mean for the Pacific Crest Trail and other national scenic and historic trails that are administered by the Forest Service?
By late June 2019, the solicitor general will decide whether to appeal the Cowpasture decision to the U.S. Supreme Court, and initial indications suggest that a petition for certiorari is likely. If granted, the questions above and many others will have their day, sales of The Lorax may briefly spike, and scores of Washington lawyers will struggle with the temptation to cite Yertle the Turtle as authority for the proposition that the Cowpasture opinion rests on an unstable foundation.