Yesterday, representatives of the proposed Atlantic Coast Pipeline and a number of environmental groups duked it out in their oral arguments in front of the Supreme Court. Among the topics discussed: Is the Appalachian Trail actually land?
That was just one of many questions raised in the hearing for Atlantic Coast Pipeline, LLC. v. Cowpasture River Preservation Association, which will decide whether the $8 billion Atlantic Coast Pipeline can be built under the famed long trail’s route. The fate of the pipeline depends largely on which agency—the Forest Service or the National Park Service—the court decides has jurisdiction over the AT corridor.
That brings us back to our first question: Is the Appalachian Trail actually land? If you’re confused, you’re not alone.
“When you walk on the trail, when you bike on the trail, when you backpack on the trail, you’re backpacking and walking on land, aren’t you?,” Justice Elena Kagan asked at one point.
Bizarre as it sounds, the distinction is a crucial puzzle piece to the case. If the trail is, as Vermont Law School Professor Pat Parenteau puts it, “superimposed on the land, but not the land itself,” then the National Forest Service is in charge of deciding whether the project goes ahead. The agency granted a permit to the project in 2017, and seems likely to allow it to proceed.
If, on the other hand, the court decides that the Appalachian Trail is land, then the National Park Service’s rules on development would apply, essentially turning the trail into a 2,200-mile roadblock for pipelines. Parenteau suggests that the justices may object to such a sweeping constraint on energy development.
“I think that the Court is going to say: we need more evidence that Congress intended to give the National Park Service more control,” he says. Indeed, on Monday, Chief Justice John Roberts seemed skeptical of opponents’ arguments, remarking that making the trail into an “impermeable barrier to any pipeline” could create a boundary between western oil production and eastern oil consumers.
Environmentalists’ best hope could be that the court decides to read the law literally: The trail is legally administered by the National Park Service, and the National Park Service doesn’t have the authority to give right-of-way to a pipeline. Peter Byrne, Faculty Director of the Georgetown Environmental Law and Policy Program, says that clear textual interpretation could play in their favor.
“A lot of the conservative judges have been staunch about reading and taking seriously the text of the statutes,” Byrne says.
Even if the Supreme Court gives it the go-ahead, however, there’s still a long road ahead for the Atlantic Coast Pipeline.
“They need eight permits and they don’t have any of them yet,” Parentaeu says. “If they get this one, the Fourth Circuit has still overturned two other ones.”