Pipeline Across the Appalachian Trail: Forest Service vs. Park Service

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Pipeline Across the Appalachian Trail: Forest Service vs. Park Service

Post by RobinB » February 21st, 2020, 9:25 am

So this one's a bit far from Portland, but it has interesting implications for both public lands and how we understand the managers of those lands. Here's a brief summary, from the wonderful SCOTUS Blog:
On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline’s construction and protect the Appalachian Trail.

The court will have to construe several statutes, including the Mineral Leasing Act, which promotes pipeline rights-of-way and other energy development on federal lands (except lands in the National Park System), and the National Trails System Act, which designated the Appalachian Trail as a National Scenic Trail and put the Secretary of the Interior in charge of administering it. The secretary later delegated that authority to the National Park Service, and today the Park Service administers the 2,100-mile trail as one of the 419 official units in the park system.

The pipeline at issue is the $8 billion Atlantic Coast Pipeline being built by Atlantic Coast Pipeline LLC, a joint venture of energy giants Dominion Energy and Duke Energy. The 600-mile, 42-inch-diameter pipe is intended to carry fracked natural gas from the depths of the Marcellus Shale in West Virginia to the Virginia coast and to eastern North Carolina. The developers say there is an increased need for natural gas in the Mid-Atlantic because coal-fired power plants are being shut down and gas-dependent industries are expanding, while critics dispute the need for new fossil fuels. The proposed route for the pipeline crosses steep mountain ranges and then tunnels underneath the Appalachian Trail within the George Washington National Forest near Wintergreen, Va.

The Trump administration quickly got behind the pipeline, and in 2017 the Forest Service blessed the route and issued a special use permit for the pipeline.

That permit is at the heart of this case. The U.S. Court of Appeals for the 4th Circuit vacated the permit in 2018 on the grounds that the entire Appalachian Trail, from Georgia to Maine, constitutes land in the National Park System, so the Forest Service had no authority to authorize a right-of-way under the trail. The Forest Service and Atlantic Coast Pipeline LLC are urging the Supreme Court to reverse the 4th Circuit, contending that the Forest Service retains full and exclusive jurisdiction over land in the George Washington National Forest.
As I understand it, the basic issue is as follows. Since 1968, the Interior Department / National Park Service has been in charge of administering the Appalachian Trail (this in contrast to the CDT and PCT, which are both administered by private associations). Because the trail is managed as a unit in the Parks System, critics of the pipeline argue that, like other National Parks, the Trail should be protected from pipeline construction. The Forest Service, in contrast, argues that, because the trail passes through a National Forest, jurisdiction should belong to The Forest Service.

Apart from just being an inherently interesting, the case nicely illustrates a tension I'm not sure people always understand between federal land managers. The Forest Service is part of the USDA, and has, since its inception, taken a far more kindly view of extractive industry than we might at first suppose. In contrast, when the National Park Service was created in 1916 to consolidate control of existing National Parks and Monuments, it was against strong objections from Gifford Pinchot and others supportive of the Forest Service's extractive mission, who worried that the new Service would inhibit resource extraction on Federal lands. (Horace Albright's The Birth of the National Park Service does a nice job of laying out the conflict, as does, more polemically, Carsten Lien's Olympic Battlefield.) Interesting to see those tensions still playing out.

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