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The United States Supreme Court recently agreed to hear United States Forest Service v. Cowpasture River Preservation Association. In that case, the Fourth Circuit, speaking through Judge Stephanie Thacker, found multiple reasons to block the Atlantic Coast Pipeline, LLC (Atlantic) from building, operating, and maintaining its 42-inch diameter natural gas pipeline.
That (ACL) pipeline, capable of transporting 1.5 billion cubic feet of natural gas each day, would run along a 604.5-mile route from West Virginia to eastern portions of Virginia and North Carolina. It would have to be routed underneath the Appalachian Trail, a hiking trail that runs about 2,000 miles from Mount Katahdin, Maine, to Springer Mountain, Georgia. Like all pipelines, some portion of the ACP will have to be built over treacherous terrain, carrying with it two inescapable environmental risks—damage during construction, and rupture and leakage during operation.
Under the National Environmental Policy Act (NEPA), construction of the pipeline has to go through an intensive review process that details all the positives and negatives of each phase involved in the pipeline’s construction, operation, and maintenance. NEPA imposes no independent review requirement, but leaves agencies free to make whatever substantive decisions they see fit. And until that laborious process runs its course, project construction is generally not allowed to begin.
Like many pipelines, but by no means all, the ACP faces a second risk over jurisdictional conflicts. When pipelines are built below a national scenic trail, which federal government agency gets to issue permits? Is it the United States Forest Service (FS), which is an agency of the Department of Agriculture, under the authority of the Mineral Leasing Act (MLA)? Or is it the National Park Service (NPS), located in the Department of Interior, pursuant to the National Trails System Act (NTSA), which provides that the Appalachian Trail “shall be administered primarily as a footpath by the Secretary of the Interior”? The ACP is designed to pass about 450 to 600 feet below the Appalachian Trail, and its proposed entry and exit points, both located on private lands, are about 1,400 and 3,400 feet from the trail, respectively.
The Government and Atlantic argued that the NEPA proceedings were adequate and that the FS had jurisdiction. The Fourth Circuit rejected both claims. The size of the stakes for the two claims, however, are quite different. The NEPA covers only one case, but the jurisdictional point is ubiquitous. Once the Fourth Circuit held that the construction of a pipeline under any trail is subject to the jurisdiction of the NPS, then at least one more comprehensive NEPA review was required in each case, because pipelines are likely to cross over more than one hiking trail.
Hence it was solely on that fundamental jurisdictional question that the Supreme Court granted Atlantic’s and the government’s request to hear the case. And for good reasons. In dealing with this issue, the Fourth Circuit engaged in several leaps of logic. Under the MLA, the term “Federal lands” refers “all lands owned by the United States except lands in the National Park System.” Pursuant to the Park Service’s Organic Act, land in the National Park System includes “any area of land and water administered by the Secretary [of the Interior]” through NPS, including the Appalachian National Scenic Trail (ANST).
The point of overlap between the ACP and the ANST is only about 0.1 mile of the trail. But as is the case with all long and skinny systems, including roads, railroads, public utilities, and common carriers, the entire project is only as strong as its weakest link. Therefore, any increase in the number of government agencies that must approve the project adds substantial peril to a venture that already requires all local governments along the route to give their blessing before any project proceeds. But the Fourth Circuit made just such an increase, holding that “the Forest Service lacked statutory authority pursuant to the MLA to grant a pipeline right of way across the ANST.” So the work of the FS was all for naught. Hence for a 600+ mile pipeline, the party which is said to control 0.1 miles of land is given a chokehold over the entire operation.
The implications of that proposition are enormous, as it leads to the conclusion that any and all licenses, including those that the FS has already issued to other pipelines under NPS trails, are null and void. For existing pipelines, this new regulatory regime could lead to a potential order to shut down operations, creating massive energy dislocations across the country, all until NPS can run its exhaustive NEPA review process over countless pipeline/trial intersections of diminishingly small length. That process could take years.
Similarly, all projects that are not yet completed could be halted until the same exhaustive NEPA process is applied to other tiny slivers of land lying far below the surface. The deviation that the Fourth Circuit requires in standard pipeline practice is no doubt what prompted the Supreme Court to hear just this issue in Cowpasture, even though the Court will not review the independent grounds on which the Fourth Circuit held that FS had incorrectly issued Atlantic the Special Use Permit needed to allow pipeline construction to begin.
Given the extent of public and private reliance on the past practice of allowing the FS to conduct the sole review of pipeline permit applications, the Fourth Circuit ought to have given strong reasons to create this extra regulatory burden, rather than to ask Congress to fix the nationwide mess that it created. The position of the government is that the division of authority suggested by the term “footpath” means that the NPS has exclusive jurisdiction over trails proper but not control over the underlying lands. It is common in dealing with mineral rights to distinguish between the surface estate and the mineral estate, so that control of the minerals below the lands are given to a separate mineral owner, so long as the mineral owner does not take any action that impairs the integrity of the surface estate or any buildings built on top of it.
The danger that any well-constructed pipeline placed 450 to 600 feet below the surface could compromise the integrity of the surface is so negligible that it should be ignored unless and until some concrete evidence of a particular danger is clearly identified. There is absolutely no issue of pipeline construction under that disputed 0.1-mile intersection that differs from the general issues that the FS already must consider under NEPA.
The respective powers of the Departments of Interior and of Agriculture are contained in the following statutory provision of the NTSA:
The Secretary of the Interior or the Secretary of Agriculture as the case may be, may grant easements and rights-of-way upon, over, under, across, or along any component of the national trails system in accordance with the laws applicable to the national park system and the national forest system, respectively (emphasis added)
The sensible way to read this provision is to interpret the term “respectively” through the following jurisdictional analysis—the FS, through the Department of Agriculture, controls deep easements through its control of the underlying lands, and the NPS, through the Department of Interior, gets to control easements through the trail—e.g. permissions for pedestrians, bikes and cars to cross over any trail at some appropriate point. Nonetheless, Judge Thacker mangled the statute when she wrote:
In other words, the MLA concerns the land, not the agency. . . . Accordingly, even if the Forest Service were the “appropriate agency head” in this instance, it could not grant a pipeline right of way across the ANST pursuant to the MLA. Interpreting the MLA as the Forest Service argues would give the Forest Service more authority than NPS on National Park System land. This defies logic. (emphasis in original)
Unfortunately, her analysis departs from the actual text of the grant, which speaks of the limited jurisdiction that the NPS has over “any area of land and water administered by the Secretary [of the Interior]” (emphasis added). That area does not have an indefinite depth but should be read to cover only “the footpath” that falls within NPS jurisdiction, not the land below. What defies logic is Judge Thacker’s effort to imagine that this statute allows the NPS to leverage its 0.001% overlap to break up the unitary control that the Forest Services has over these lands.
I am reasonably confident that the Supreme Court will turn aside this perverse power grab.
The effect of the correct analysis will be to remove a dagger from the heart of the national pipeline system. But it does nothing to cure the manifest defects of NEPA. Thus Judge Thacker adopted a hard-look approach to the FS report, thereby letting any single defect in its analysis derail the entire project, which by the government’s uncontested estimates could generate annual savings of some $377 million for its ACP customers.
Nor, as is typical with NEPA reviews, did the Fourth Circuit address the far greater environmental hazards arising from shipping natural gas or crude oil by truck, rail, or tanker. NEPA unwisely front-loads the review process, so as to require FS and Atlantic to treat low-probability events like near certainties. In addition, the Fourth Circuit ordered the FS to consider alternative, longer routes outside national forest lands, as if these alternative routes could somehow meet NEPA standards. Getting the jurisdictional issue right in Cowpasture does not fix NEPA’s fundamental flaws. For that a major Congressional overhaul is required.