Amicus Curiae Brief — United States Forest Service, et al., Petitioners v. Cowpasture River Preservation Association, et al.

Nos. 18-1584 and 18-1587

In the Supreme Court of the United States

UNITED STATES FOREST SERVICE, ET AL.,

Petitioners,

v.

COWPASTURE RIVER PRESERVATION ASSOCIATION, ET AL.,

Respondents.

ATLANTIC COAST PIPELINE, LLC,

Petitioner,

v.

COWPASTURE RIVER PRESERVATION ASSOCIATION, ET AL.,

Respondents.

______________

On Petitions for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION OF MANUFACTURERS, ET AL. IN

SUPPORT OF PETITIONERS

BEVERIDGE & DIAMOND, P.C.

JOHN C. CRUDEN

Counsel of Record

PETER J. SCHAUMBERG

JAMES M. AUSLANDER

1350 I Street N.W., Ste. 700

Washington, DC 20005

(202) 789-6000

jcruden@bdlaw.com

Counsel for Amici

[full list of amici on inside cover]

[additional counsel listed at end]

AMICI CURIAE:

NATIONAL ASSOCIATION OF MANUFACTURERS

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS

AMERICAN PETROLEUM INSTITUTE

INTERSTATE NATURAL GAS ASSOCIATION OF

AMERICA

ASSOCIATION OF OIL PIPE LINES

NATURAL GAS SUPPLY ASSOCIATION

NATIONAL MINING ASSOCIATION

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA

EDISON ELECTRIC INSTITUTE

AMERICAN GAS ASSOCIATION

WEST VIRGINIA MANUFACTURERS

ASSOCIATION

WEST VIRGINIA CHAMBER OF COMMERCE

WEST VIRGINIA OIL AND NATURAL GAS

ASSOCIATION

INDEPENDENT OIL AND GAS ASSOCIATION OF

WEST VIRGINIA

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT

I. Project Proponents Should Not Be Required to

Depend on Congress to Enact Separate

Legislation Approving Each Energy Pipeline That

Crosses Below a Designated Trail. ........................ 4

II. The Court of Appeals Decision Threatens to

Strand Critical U.S. Energy. ................................. 7

III.The Court of Appeals' Decision Threatens Critical

Infrastructure Development Beyond Energy

Pipelines. .............................................................. 17

CONCLUSION .......................................................... 21

APPENDIX: List of Amici

ii

TABLE OF AUTHORITIES

Cases

Michigan United Conservation Clubs v.

Lujan,

949 F.2d 202 (6th Cir. 1991) ................................. 19

Nat’l Rifle Ass’n of Am. v. Potter,

628 F. Supp. 903 (D.D.C. 1986) ............................ 19

Sierra Club v. U.S. Dep’t of the Interior,

899 F.3d 260 (4th Cir. 2018) ........................... 19, 20

United States v. Stephenson,

29 F.3d 162 (4th Cir. 1994) ................................... 19

Whitman v. Am. Trucking Ass’n,

531 U.S. 457 (2001) .................................................5

Federal Statutory Authorities

16 U.S.C. § 460a-2 ..................................................... 21

16 U.S.C. § 460a-3 ..................................................... 20

16 U.S.C. § 531 .......................................................... 18

16 U.S.C. § 1244(a) .................................................... 17

16 U.S.C. § 1244(a)(1) .................................................5

16 U.S.C. § 1246(a)(1)(A) ............................................5

16 U.S.C. §§ 1600(5), 1604(e), 1607 .......................... 18

30 U.S.C. § 185 .......................................................... 12

30 U.S.C. § 185(b) ........................................................6

30 U.S.C. § 185(n) ...................................................... 13

iii

42 U.S.C. § 4370m(6)(A) ............................................ 11

54 U.S.C. § 100101(a) ................................................ 18

54 U.S.C. § 100101(b)(2) ........................................... 19

Pub. L. No. 113-287, 128 Stat. 3096 (2014) .............. 18

Pub. L. No. 114-94, 129 Stat. 1312 (2015) ................ 11

Other Authorities

Presidential Memorandum, Expediting

Review of Pipeline Projects from Cushing,

Oklahoma, to Port Arthur, Texas, and

Other Domestic Pipeline Infrastructure

Projects (Mar. 22, 2012) ......................................... 11

H. Rpt. 114-285 (2015) ............................................ 6, 7

Executive Order 13,807 (Aug. 15, 2017) ................... 11

ACP, Powering the Future, Driving Change

Through Clean Energy .......................................... 11

EIA, Today in Energy – The United States is

Now the Largest Global Cruide Oil

Producer (Sept. 12, 2018) .........................................8

EIA, Today in Energy – United States

Remains the World’s Top Producer of

Petroleum and Natural Gas Hydrocarbons

(May 21, 2018) ...................................................... 8, 9

iv

ICF (for INGAA Foundation), North America

Midstream Infrastructure Through 2035

(2018) ........................................................................9

ICF (for Dominion Transmission, Inc.), The

Economic Impacts of the Atlantic Coast

Pipeline (2015) ................................................... 7, 10

U.S. Dept. of Transportation, Pipeline and

Hazardous Materials Safety

Administration, General Pipeline FAQs .............. 10

U.S. Dept. of Energy, Electricity

Transmission, Pipelines, and National

Trails (Mar. 25, 2014) ............................................ 17

1

INTEREST OF AMICI CURIAE1

Fourteen amici curiae trade associations on behalf

of their thousands of members (collectively “Amici”)

respectfully submit this brief in support of both

petitioners in this matter, the federal government and

the Atlantic Coast Pipeline (“ACP”) project sponsor.

Amici urge this Court to grant certiorari on the

important statutory issue presented in this case and

reverse the unprecedented interpretation below

threatening the development of critically needed

pipelines and other infrastructure that would cross

beneath national trails within national forests.

Amici share a significant interest in domestic

energy independence, national security, development

of vital infrastructure, and the reliable supply of

natural gas, oil, and refined products provided by U.S.

pipelines to the economy. Amici represent a broad

array of manufacturers, businesses (large and small,

local and national), fuel producers, pipeline owners

and operators, natural gas suppliers, electric

companies, and mining companies. The Appendix

lists the interests of each of the amici.

1 In accordance with Rule 37.2(a) of this Court, amici have

provided counsel of record for both petitioners and respondents

with timely notice of amici’s intent to file this brief and the

foregoing parties have provided their written consent to do so.

Pursuant to Rule 37.6, amici state that no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amici, their members, and their counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

SUMMARY OF ARGUMENT

The Fourth Circuit below erred in divesting the

U.S. Forest Service (“Forest Service”) of jurisdiction to

grant rights-of-way over Forest Service lands

traversed by the Appalachian Trail, and by judicial

fiat transferring those lands to the National Park

Service (“Park Service”). No other court has adopted

such a novel reading of the Mineral Leasing Act

(“MLA”) or National Trails System Act (“NTSA”).

Rather, the court of appeals unilaterally upended the

decades-long, uniform understanding and practice of

the Forest Service, the Park Service, and the entire

federal government that had recognized Forest

Service authority to grant rights-of-way for Forest

Service lands underlying designated trails.

Amici concur in the arguments advanced by both

Petitions for a writ of certiorari docketed with the

Court on June 26 and June 29, 2019 (“Petitions”). The

Petitions present a rather straightforward issue of

statutory construction wherein the court of appeals

erroneously substituted its judgment for that of

Congress and the Executive Branch. This brief

further underscores why it is important that the

Court grant the Petitions to consider the issue of

statutory interpretation.

First, the court of appeals’ unprecedented reading

of the MLA and NTSA effectively precludes much

critical

energy

resource

and

infrastructure

development by requiring project proponents to

secure Congressional approval of each pipeline right

of-way under the Appalachian Trail or other similarlydesignated trails located within national forests

Congress intended for the Forest Service to make.

3

decisions about rights-of-way within national forests,

recognizing the impracticality of requiring Congress

to legislate routine decisions on individual projects.

The decision upsets the status quo without any

environmental benefit or legislative determination.

The resulting uncertainty and potential loss of

projects falls chiefly upon amici’s members and the

public who would otherwise benefit from reliable and

affordable domestic energy. Conversely, reversal by

this Court would not imperil the environment or

create a regulatory gap, but would instead simply

restore the Forest Service’s long-recognized authority

to decide rights-of-way within national forests subject

to environmental review and robust regulatory

requirements.

Second, the court of appeals’ dispositive statutory

ruling needlessly threatens U.S. energy security while

providing no additional benefit to the Appalachian

Trail. Given pipelines’ importance to transportation

of domestic energy production to market, policies

encouraging construction of energy pipelines has long

been a bipartisan priority. Unless reversed, the court

of appeals’ ruling will jeopardize existing and future

pipeline approvals in an energy resource-rich area of

the country, as well as along the 2,000-plus-mile

Appalachian Trail and other trails nationwide

traversing national forests and other federal lands

that Congress similarly did not designate as national

park lands.

Third, the ruling has numerous unintended and

unaccounted-for

consequences

by

necessarily

converting all federal lands underlying the

Appalachian Trail into Park Service lands for all

purposes, thereby impacting non-pipeline projects

dependent on rights-of-way across national trails

4

including, but not limited to, roads, bridges, electric

transmission lines, telecommunications lines, water

facilities, and grazing areas. The Park Service

generally has narrower discretion than the Forest

Service to grant rights-of-way due to the Park

Service’s statutory focus on conservation rather than

on promoting multiple uses including energy

transportation. Thus, the problems with the lands

transfer effectuated by the court of appeals extend

beyond energy pipeline approvals and necessitate

more than simply requiring applicants to seek

approval from a different federal agency. Rather, the

court of appeals’ erroneous statutory interpretation

will have serious adverse consequences over a broad

array of important actions that traverse the

Appalachian Trail and other designated trails. This

Court should grant certiorari to reverse the court of

appeals and provide clear guidance to courts

considering challenges to critical infrastructure

projects nationwide.

ARGUMENT

I.

Project Proponents Should Not Be

Required to Depend on Congress to Enact

Separate Legislation Approving Each

Energy

Pipeline

That

Crosses

a

Designated Trail.

As the Petitions explain in detail, Congress’

enactment of the national forest management

statutes, the MLA, and the NTSA, permanently

vested jurisdiction over national forests to the Forest

Service, not the Park Service, and kept it there.

Simply put, the decision to assign administration of

the Appalachian Trail and other surface trails to the

Park Service did not transfer authority over the

5

underlying lands, including the national forests, to

the Park Service. Rather, the Park Service principally

administers the Appalachian Trail footpath because

Congress determined in the NTSA that the Park

Service was best equipped to perform that function,

but the underlying land through which the ACP

project requires a right-of-way remains, as it has been

since its creation, as part of the George Washington

National Forest. See 16 U.S.C. § 1244(a)(1); 16 U.S.C.

§ 1246(a)(1)(A). Accordingly, the Forest Service

retained right-of-way decision-making authority for

the 0.1 miles of the ACP project that would be

installed more than 600 feet underneath the

Appalachian Trail within the George Washington

National Forest.

The court of appeals’ contrary ruling amounts to a

massive lands transfer to the Park Service, a

gargantuan effect without any such consideration or

command by Congress, as the Petitions demonstrate.

This result is at odds with the well-established

principle that Congress “does not alter the

fundamental details of a regulatory scheme in vague

terms or ancillary provisions,” or “hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’n, 531

U.S. 457, 468 (2001).

The court of appeals’ decision that all Forest

Service land traversed by the Appalachian Trail is

now Park Service land—coupled with pipeline

projects’ geographic constraints and the federal

government’s stated inability to grant rights-of-way

for pipelines through Park Service land—effectively

requires Congressional action to approve specific

rights-of-way over such land. Requiring specific new

statutory approval of each new right-of-way is

6

unprecedented, unnecessary, and unwise. And this

cumbersome process for approving a small portion of

a complex energy pipeline project affords little comfort

for applicants who, to justify their multi-year

planning and multi-billion-dollar investments for

pipeline infrastructure, need more regulatory

certainty and predictability than is afforded by

Congressional action on individual rights-of-way.

Congress recognized this when it gave the Forest

Service authority to grant rights-of-way within

national forests; Congress did not seek to make such

decisions itself on a pipeline-by-pipeline basis.

Nor is Congress seeking to issue such approvals

routinely. Amici are aware of only a handful of

projects that have received Congressional approval for

rights-of-way across undisputed Park Service lands

(not solely a trail crossing within a national forest),

and the process added many months of delay and

uncertainty. See H. Rpt. 114-285, at 3, 5 (2015)

(“Since 1990, five natural gas pipelines have received

such authorizations—which took eight to 16 months

to authorize.”). Moreover, efforts to enact pipelinespecific substantive legislation could languish in

Congress irrespective of the critical need for the

proposed project, energy needs by local communities,

or demanding project schedules.

Consistent with Congress’ existing grant of

pipeline right-of-way authority to federal agencies,

members of Congress also previously deemed

unnecessary and rejected a bill, H.R. 2295 (2015), that

would have amended 30 U.S.C. § 185(b) to allow

agencies to grant natural gas pipeline rights-of-way

over Park Service lands. In doing so, the House

Report stated that: “[c]ontrary to claims at the

7

markup that the Appalachian Trail acts as a ‘Great

Wall’ that blocks pipeline development, there are 63

current pipeline crossings of the Appalachian Trail.

According to data from the Congressional Research

Service, in only three locations was specific

Congressional authorization required, as much of the

Appalachian Trail is on land not owned by the

National Park Service and therefore does not need

that authorization.” H. Rpt. 114-285, at 24 (2015).

Because reliance on Congress to regularly act in a

timely manner on individual rights-of-way for new

pipelines and renewal of existing pipelines is an

inappropriate and impractical solution, and is not

what Congress intended, the Court should grant

certiorari here.

II.

The Court of Appeals’ Decision Threatens

to Strand Critical U.S. Energy Supplies.

By precluding Forest Service approvals of pipeline

rights-of-way crossing the Appalachian Trail within

national forests, the court of appeals’ decision

introduces new uncertainty to complex pipeline

projects, upsets settled expectations and a consistent

Executive Branch approach, and jeopardizes critical

domestic energy development. The ACP project’s

construction will result in $2.7 billion in economic

activity and 17,000 construction jobs, and its

operation over a 20-year period will yield $377 million

in annual consumer energy cost savings and over

2,000 long-term jobs. See ACP, Powering the Future,

Driving Change Through Clean Energy, at 2, 8,

https://atlanticcoastpipeline.com/resources/docs/resou

rces/acp-factbookversion2.pdf; ICF (for Dominion

Transmission, Inc.), The Economic Impacts of the

Atlantic Coast Pipeline, at 5, 11-12 (2015),

8

https://atlanticcoastpipeline.com/resources/docs/resou

rces/acp-icf-study (1).pdf. And while these benefits

are significant standing alone, the need for oil and

natural gas infrastructure and the potentially

foregone benefits of energy pipelines extend beyond

the ACP project or even the Appalachian Trail and

particularly warrant this Court’s review here.

U.S. energy production relies upon a fullyfunctioning

pipeline

system,

and

pipeline

transportation of domestic natural gas and oil

products is essential to manufacturing, electricity

generation, economic development, and job creation.

As detailed in Attachment 1, amici’s members are

responsible for or rely upon thousands of miles of

pipelines serving millions of customers that create

millions of high-paying jobs. Pipeline transportation

is especially important in Fourth Circuit states like

West Virginia, which is home to abundant energy

resources including the Marcellus and Utica Shale

formations. Even temporary delays compromise the

significant

benefits

conveyed

by

pipeline

development. Worse still, the court of appeals’

misreading of the MLA and NTSA could foreclose

projects altogether and result in lasting adverse

economic effects.

The benefits of the shale revolution have made the

United States the world’s top producer of natural gas

since 2009 and the world’s top producer of crude oil in

the summer of 2018, surpassing both Saudi Arabia

and Russia. See EIA, “Today in Energy – United

States remains the world’s top producer of petroleum

and natural gas hydrocarbons” (May 21, 2018),

https://www.eia.gov/todayinenergy/detail.php?id=362

92; EIA, “Today in Energy – The United States is now

9

the largest global crude oil producer” (Sept. 12, 2018),

https://www.eia.gov/todayinenergy/detail.php?id=370

53. This technological revolution would simply not

have occurred if pipelines were not available to

transport product to market. And the need for more

pipelines to accommodate growing domestic

production is substantial.

A recent study estimated that the need for capital

expenditures (CAPEX) for new North American oil

and gas infrastructure development, including

pipelines, totals $791 billion from 2018 through 2035.

This level of investment equates to an average annual

CAPEX of $44 billion throughout the projection

period. This would go to building approximately

41,000 miles of pipeline, along with other

infrastructure. That investment in infrastructure will

contribute $1.3 trillion to U.S. and Canadian Gross

Domestic Products over the projection period, or

approximately

$70

billion

annually,

and

infrastructure development will result in employment

of 725,000 U.S. workers annually.

Significant

employment opportunities are created not only within

states where infrastructure development occurs, but

across all states because of indirect and induced labor

impacts. ICF (for INGAA Foundation), North America

Midstream Infrastructure through 2035 (2018), at 2,

https://www.ingaa.org/File.aspx?id=34703.

The ACP project, like other energy pipelines, offers

additional benefits for local communities and energy

resource development. Energy demand includes

consumers that currently are remote from existing

infrastructure; these customers would be served by

delivery of natural gas via the ACP project. Moreover,

the ACP project would create greater energy

10

reliability by facilitating use of geographically closer

energy sources and reducing energy cost spikes

through added capacity.

The ACP project also

supports the deployment of renewable energy

generation by backing up the intermittent electricity

supply from wind or solar energy facilities. ICF, The

Economic Impacts of the Atlantic Coast Pipeline, at 3,

8, 15.

While the cancellation of a pipeline deprives the

nation of a plethora of benefits – including supporting

the deployment of renewable energy – delays also

cause real economic harm. These costs include

remobilization costs, time value of money costs (for

items already purchased), and general inflation (for

those items that will be purchased when the project

proceeds). The price of delay may be many millions of

dollars.

Because pipelines literally fuel the U.S. economy,

it has long been federal policy, under both Democratled

and

Republican-led

Congresses

and

administrations, to promote energy pipelines. For

example, the U.S. Department of Transportation’s

Pipeline

and

Hazardous

Materials

Safety

Administration (“PHMSA”) has recognized that

pipelines “literally fue[l] our economy and way of life.”

PHMSA,

General

Pipeline

FAQs,

https://www.phmsa.dot.gov/faqs/general-pipelinefaqs. The oil and natural gas volumes carried by the

more than 2.6 million miles of pipelines “are well

beyond the capacity of other forms of transportation.”

Id. A modest-sized oil pipeline moves the daily

equivalent of 750 tank trucks, loading up every two

minutes, 24 hours a day. See id. Moreover, forcing

the transfer of oil by truck or rail raises a myriad of

11

environmental consequences not addressed by the

court of appeals’ decision.

For two decades, facilitating energy pipelines has

been a bipartisan priority. In 2015, Congress enacted

the “FAST Act,” which includes pipelines among the

“covered projects” to benefit from more coordinated

and efficient permitting timetables. Pub. L. No. 11494, 129 Stat. 1312 (2015); 42 U.S.C. § 4370m(6)(A).

The ACP project is a “covered project” under Title 41

of the FAST Act and was permitted under that

program. Three years earlier, President Obama

called for “expedited review” of pipelines, and for

agencies to “utilize and incorporate information from

prior environmental reviews and studies conducted in

connection with previous applications for similar or

overlapping infrastructure projects so as to avoid

duplicating effort.”

Presidential Memorandum,

Expediting Review of Pipeline Projects from Cushing,

Oklahoma, to Port Arthur, Texas, and Other Domestic

Pipeline

Infrastructure Projects (Mar. 22, 2012),

https://obamawhitehouse.archives.gov/the-pressoffice/2012/03/22/presidential-memorandumexpediting-review-pipeline-projects-cushing-okla.

President Obama recognized that “we must make

pipeline infrastructure a priority, ensuring the health,

safety, and security of communities and the

environment while supporting projects that can

contribute to economic growth and a secure energy

future.” Id. Similarly, President Trump and various

federal agencies adopted a “One Federal Decision”

framework to facilitate pipeline and other

infrastructure project decisions. See Executive Order

13,807 (Aug. 15, 2017). None of these measures,

however, contemplated a need for Congressional

actions to approve a right-of-way each time an

12

individual project crosses a designated trail

administered by the Park Service within federal lands

controlled by another federal agency.

The court of appeals’ decision disregards the

importance of pipeline infrastructure and has

needlessly threatened U.S. energy security. The court

of appeals’ novel statutory ruling depriving the Forest

Service of its right-of-way authority upsets settled

rules and creates substantial uncertainties and

disruptions for the affected regional and national

energy markets and the businesses and consumers

who depend on them. If the Forest Service cannot

grant rights-of-way within its jurisdictional lands,

critical pipelines may not be built, and energy

resources may not be transported to where they are

needed most.

The court of appeals’ statutory interpretation

could have substantial national ramifications as well.

The MLA applies broadly to natural gas pipelines like

the ACP project, as well as to oil, natural gas liquids,

and refined products pipelines. See 30 U.S.C. § 185.

Under the court of appeals’ rationale, at a minimum,

all new pipelines seeking access underneath the

Appalachian Trail within hundreds of miles of

national forests would not be able to move forward

without an act of Congress.

Moreover, the court of appeals’ decision potentially

jeopardizes existing pipelines that previously received

a Forest Service-approved right-of-way to cross an

Appalachian Trail segment within a national forest.

As specified in the Petitions and above, there are more

than 50 such pipeline rights-of-way already in

existence. But federal rights-of-way are not granted

in perpetuity. See 30 U.S.C. § 185(n). Rather, the

13

terms of existing approvals typically require

renewals.

By calling into question the Forest

Service’s administrative authority to grant renewals

for the many long-operating pipelines crossing the

Appalachian Trail, the court of appeals’ decision may

likewise subject existing critical infrastructure

projects to undue legal challenge.

Nor are the decision’s potential impacts on future

or existing pipelines limited to Appalachian Trail

crossings. As depicted below in Figures 1, 2, and 3,

the National Trails System spans the country, as does

the vast network of existing energy pipelines.

14

Figure 1

National Park Service National Trails System

Map

Source: NPS,

https://www.nps.gov/gis/storymaps/mapjournal/v2/index.htm

l?appid=0fd54ceaad1a4d418e140e6e2021bb5b

15

Figure 2

INGAA, 2018 Interstate Natural Gas Pipeline

System Map

Source: Interstate Natural Gas Association of

America, https://www.ingaa.org

16

Figure 3

AOPL-API Oil Liquids Pipeline Map

Source: AOPL/API, https://pipeline101.org/Where-ArePipelines-Located.

17

See also U.S. Dept. of Energy, Electricity

Transmission, Pipelines, and National Trails,

https://publications.anl.gov/anlpubs/2016/11/131478.pdf

(Mar. 25, 2014).

Importantly, many of these trails are designated

by the NTSA as being “administered by” the

Department of the Interior, a designation the court of

appeals held does not authorize the Forest Service to

grant a right-of-way where Interior in turn delegated

trail administration to the Park Service. See 16

U.S.C. § 1244(a). Like the over 1,000 miles of the

Appalachian Trail within national forests, many of

these other trails cross substantial tracts of federal

lands. An example is the North Country National

Scenic Trail, stretching 4,600 miles from the

Appalachian Trail in Vermont to North Dakota,

including nine national forests.

If this Court

preserves the court of appeals’ rationale, all pipeline

trail crossings within national forests or other federal

lands (that would now be considered Park Service

land) could be called into question, thereby impeding

the transmission of critical U.S. energy resources.

III.

The Court of Appeals’ Decision Impacts

Critical Infrastructure Beyond Energy

Pipelines.

The implications of the court of appeals’ decision

are not limited to energy pipelines. The court of

appeals did not consider that if the NTSA’s

designation of the Park Service as administrator of a

national trail is all that is required to convey the

underlying lands to the Park Service, then those lands

necessarily are Park Service lands for all purposes.

This does not simply mean that proponents of other

types of projects crossing national trails must seek a

18

right-of-way from the Park Service instead of the

Forest Service. Rather, rights-of-way will become

more difficult to obtain due to the Park Service’s

narrower statutory authority over these lands.

National forest lands and national park lands are

not the same.

Under the National Forest

Management Act and the Multiple-Use SustainedYield Act, Congress requires that national forest

lands be managed pursuant to the “multiple use and

sustained yield” standard. 16 U.S.C. §§ 1600(5),

1604(e), 1607. In sum, this management standard

entails promoting a wide variety of uses to best utilize

the land while ensuring perpetual output of its

renewable resources and avoiding “impairment of the

productivity of the land.” See 16 U.S.C. § 531. The

Forest Service must determine whether a project

requiring a right-of-way is consistent with that

standard, and specifically with the applicable

management plan for the affected national forest.

By contrast, Congress prescribed management of

national park lands principally for conservation.2

Congress defined the “fundamental purpose” of

national park lands in its Organic Act governing the

Park Service: “to conserve the scenery, natural and

historic objects, and wild life in the System units and

to provide for the enjoyment of the scenery, natural

and historic objects, and wild life in such manner and

by such means as will leave them unimpaired for the

enjoyment of future generations.”

54 U.S.C.

2

Congress recently recodified the National Park Service Organic

Act from 16 U.S.C. § 1 et seq. to 54 U.S.C. § 100101 et seq. Pub.

L. No. 113-287, 128 Stat. 3096 (2014).

19

§ 100101(a). Accordingly, “authorization of activities”

by the Park Service “shall be construed and the

protection, management, and administration of the

System units shall be conducted in light of the high

public value and integrity of the System and shall not

be exercised in derogation of the values and purposes

for which the System units have been established,

except as directly and specifically provided by

Congress.” Id. § 100101(b)(2).

Courts have construed these provisions narrowly

in reviewing actions of the Park Service. See United

States v. Stephenson, 29 F.3d 162, 165 (4th Cir. 1994)

(similarly interpreting former statutory provision);

Nat’l Rifle Ass’n of Am. v. Potter, 628 F. Supp. 903, 909

(D.D.C. 1986) (“In the Organic Act Congress speaks of

but a single purpose, namely, conservation[.]”).

Courts also have found that the Park Service and the

Forest Service have different core missions for their

jurisdictional lands.

In

Michigan United

Conservation Clubs v. Lujan, the Sixth Circuit

affirmed the Park Service’s denial of animal trapping

even in “nontraditional” park areas under Park

Service jurisdiction because, “unlike national forests,

Congress did not regard the National Park System to

be compatible with consumptive uses.” 949 F.2d 202,

204, 207 (6th Cir. 1991). Likewise, in a separate

decision, the same Fourth Circuit panel found that

“unlike other Federal lands, such as the national

forests, the National Park System’s sole mission is

conservation.” Sierra Club v. U.S. Dep’t of the

Interior, 899 F.3d 260, 292 (4th Cir. 2018).

|

|

The Fourth Circuit panel’s earlier (and separately

problematic) application of the National Park Service

20

Organic Act in its Sierra Club decision to create an

additional hurdle for the ACP project illustrates the

project risks from the court of appeals’ undue

expansion of Park Service jurisdiction to lands

underlying Park Service-administered trails.

In

Sierra Club, the court of appeals considered and

vacated the Park Service’s permitted right-of-way

beneath the Blue Ridge Parkway (“Parkway”) surface

for the ACP project. That Parkway largely parallels

the Appalachian Trail.

Importantly, Congress

statutorily provided for administrative approval of

rights-of-way across the Parkway. 16 U.S.C. § 460a3. However, the court of appeals proceeded to analyze

the right-of-way’s consistency with the National Park

Service Organic Act. In doing so, the court of appeals

announced a “fundamental principle that undergirds

every aspect of the Park Service’s management of the

National Park System—the agency is forbidden from

taking any action that is not consistent with its

conservation mission unless Congress has ‘directly

and specifically’ authorized the harmful activity.”

Sierra Club, 899 F.3d at 291. The court of appeals

held that the Park Service “must determine that its

right-of-way permit is not in ‘derogation’ of the

National Park System’s conservation mission.” Id. at

292. In holding that the Park Service failed to make

this determination, the court of appeals concluded

that the Park Service’s “decision to grant ACP a rightof-way was arbitrary and capricious for failing to

explain the pipeline’s consistency with the purposes of

the Blue Ridge Parkway and the National Park

System.” Id. at 294.

While Congress expressly established that the

Parkway is subject to the National Park Service

21

Organic Act, Congress has not made such a

pronouncement for national trails under the NTSA.

See 16 U.S.C. § 460a-2. If upheld, however, the court

of appeals’ decision will unjustifiably subject roads,

bridges, transmission lines, water facilities, and other

non-pipeline project approvals to potential judicial

application of a more restrictive standard whenever

they may intersect national trails administered by the

Park Service on lands managed by other federal

agencies. In turn, the Park Service may bear a higher

burden to explain why such rights-of-way over the

court of appeals’ newly-created Park Service lands are

not in derogation of the conservation mission for

national park lands. These additional hurdles will

subject such projects to undue costs, delays, and

litigation risks.

CONCLUSION

By unlawfully converting Forest Service lands into

Park Service lands, and prohibiting the Forest Service

from granting pipeline rights-of-way to cross lands

underlying the Appalachian Trail, the opinion below

threatens not only the ACP project but also other

critical infrastructure projects nationwide, at a time

when the domestic need for such infrastructure could

not be greater.

The opinion is a clear

misinterpretation of the law, disregards the Executive

Branch’s historical process, and puts at risk domestic

energy production, economic growth, and national

security. Amici’s members comprise the companies

that plan, finance, build, operate, and rely upon this

infrastructure and literally fuel the nation and

economy, all the while protecting the environment.

Amici are united in their dedication to the rule of law

and environmental safeguards. If, however, the

22

opinion below is allowed to stand, the nation will

suffer, and project opponents will employ the opinion

as a potent weapon to stymie development of energy

resources and other key infrastructure, both within

and beyond the Fourth Circuit. The Court thus

should grant the Petitions for certiorari to address the

statutory interpretation issue presented.

July 26, 2019

Respectfully submitted,

BEVERIDGE & DIAMOND, P.C.

JOHN C. CRUDEN

Counsel of Record

PETER J. SCHAUMBERG

JAMES M. AUSLANDER

1350 I Street N.W., Ste. 700

Washington, DC 20005

(202) 789-6000

jcruden@bdlaw.com

Counsel for Amici

23

Additional Counsel

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

PETER TOLSDORF

733 10th Street, NW,

Suite 700

Washington, D.C. 20001

(202) 637-3000

Counsel for National

Association of Manufacturers

AMERICAN FUEL &

PETROCHEMICAL

MANUFACTURERS

RICHARD S. MOSKOWITZ

1800 M Street, NW

Suite 900 North

Washington, DC 20036

(202) 457-0480

Counsel for American

Fuel & Petrochemical

Manufacturers

AMERICAN PETROLEUM

INSTITUTE

ANDREA MILES

200 Massachusetts Avenue,

NW, Suite 1100

Washington DC 20001

(202) 682-8000

Senior Counsel for American

Petroleum Institute

INTERSTATE NATURAL

GAS ASSOCIATION OF

AMERICA

JOAN DRESKIN

SANDRA Y. SNYDER

AMMAAR JOYA

20 F Street, NW

Suite 450

Washington, DC 20001

(202) 216-5900

Counsel for Interstate

Natural Gas Association

of America

24

ASSOCIATION OF OIL

NATURAL GAS SUPPLY

PIPE LINES

ASSOCIATION

STEVEN M. KRAMER

DENA E. WIGGINS

900 17th Street, NW, Suite 600 1620 Eye Street, NW,

Washington, D.C. 20006

Suite 700

(202) 292-4502

Washington, D.C. 20006

Counsel for Association of Oil

(202) 326-9310

Pipe Lines

President & CEO of the

Natural Gas Supply

Association

NATIONAL MINING

ASSOCIATION

KATIE SWEENEY

101 Constitution Avenue, NW

Washington, DC 20001

(202) 463-2600

Counsel for National Mining

Association

U.S. CHAMBER

LITIGATION CENTER

DARYL JOSEFFER

MICHAEL B. SCHON

1615 H Street, NW

Washington, DC 20062

(202) 463-5948

Counsel for Chamber of

Commerce of the United

States of America

EDISON ELECTRIC INSTITUTE

AMANDA E. ASPATORE

EMILY SANFORD FISHER

701 Pennsylvania Avenue, NW

Washington, D.C. 20004

(202) 508-5115

Counsel for Edison Electric

Institute

AMERICAN GAS

ASSOCIATION

MICHAEL MURRAY

MATTHEW AGEN

400 N. Capitol St., NW

Washington, DC 20001

Counsel for American

Gas Association

25

WEST VIRGINIA CHAMBER OF

COMMERCE

JOHN M. CANFIELD

1624 Kanawha Boulevard East

Charleston WV 25311

(304) 342-1115

Vice President & Counsel for

the West Virginia Chamber of

Commerce

WEST VIRGINIA

MANUFACTURERS

ASSOCIATION

REBECCA R. MCPHAIL

2001 Quarrier Street

Charleston, WV 25311

(304) 342-2123

President, West Virginia

Manufacturers

Association

WEST VIRGINIA OIL AND

NATURAL GAS

ASSOCIATION

ANNE C. BLANKENSHIP

10 Hale Street, 5th Floor

Charleston, WV 25301

(304) 419-1435

Executive Director, West

Virginia Oil and

Natural Gas Association

INDEPENDENT OIL AND

GAS ASSOCIATION OF

WEST VIRGINIA

CHARLIE BURD

300 Summers Street,

Suite 820

Charleston, WV 25301

(304) 344-9867

Executive Director,

Independent Oil and

Gas Association of West

Virginia