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 Writs 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

MARCELLUS SHALE COALITION

WEST VIRGINIA MANUFACTURERS ASSOCIATION

WEST VIRGINIA CHAMBER OF COMMERCE

WEST VIRGINIA OIL AND NATURAL GAS ASSOCIATION

INDEPENDENT OIL AND GAS ASSOCIATION OF WEST VIRGINIA

PENNSYLVANIA CHAMBER OF BUSINESS AND INDUSTRY

VIRGINIA CHAMBER OF COMMERCE

NORTH CAROLINA CHAMBER LEGAL INSTITUTE

SOUTH CAROLINA CHAMBER OF COMMERCE

OHIO CHAMBER OF COMMERCE

KENTUCKY CHAMBER OF COMMERCE

i

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 4

I. Congress Did Not Intend to Insert Itself Into

Every Pipeline Crossing a Designated Trail. ........ 4

II. The Forest Service’s Ability to Permit Pipeline

Infrastructure Is Critical to U.S. Energy

Security. ................................................................. 9

III.Conversion of Trails to Park Service Lands

Threatens Rights-of-Way for Other Critical

Infrastructure....................................................... 20

CONCLUSION .......................................................... 24

APPENDIX: List of Amici

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Bd. of Trustees of Leland Stanford Junior

Univ. v. Roche Molecular Sys., Inc.,

563 U.S. 776 (2011) .................................................6

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .................................................6

Michigan United Conserv. Clubs v. Lujan,

949 F.2d 202 (6th Cir. 1991) ................................. 22

Nat’l Rifle Ass’n of Am. v. Potter,

628 F. Supp. 903 (D.D.C. 1986) ............................ 22

Preseault v. I.C.C.,

494 U.S. 1 (1990) .....................................................5

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

899 F.3d 260 (4th Cir. 2018) ........................... 22, 23

United States v. Stephenson,

29 F.3d 162 (4th Cir. 1994) ................................... 22

United States v. Union Pac. R. Co.,

353 U.S. 112 (1957) .................................................5

Whitman v. Am. Trucking Ass’n,

531 U.S. 457 (2001) .................................................6

iii

Federal Statutory Authorities

16 U.S.C. § 460a-2 ..................................................... 23

16 U.S.C. § 521 ............................................................6

16 U.S.C. § 531 .......................................................... 21

16 U.S.C. § 1242 ..........................................................5

16 U.S.C. § 1244 ..........................................................9

16 U.S.C. § 1244(a) .................................................... 20

16 U.S.C. § 1244(a)(1) .................................................9

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

16 U.S.C. § 1246(a)(2) .................................................5

16 U.S.C. § 1246(j) .......................................................9

16 U.S.C. §§ 1600(5), 1604(e), 1607 .......................... 21

30 U.S.C. § 185(a) .................................................. 7, 15

30 U.S.C. § 185(b) ........................................................8

30 U.S.C. § 185(f) ....................................................... 16

30 U.S.C. § 185(h) ...................................................... 16

30 U.S.C. § 185(n) ...................................................... 15

30 U.S.C. § 185(q) ...................................................... 15

30 U.S.C. § 185(t)....................................................... 16

42 U.S.C. § 4370m(6)(A) ............................................ 13

54 U.S.C. § 100101(a) ................................................ 22

54 U.S.C. § 100101(b)(2) ..................................... 21, 22

40 Stat. 1779 (1918) ....................................................6

Pub. L. No. 113-287, 128 Stat. 3096 (2014) .............. 21

Pub. L. No. 114-94, 129 Stat. 1312 (2015) ................ 13

iv

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) ......................................... 14

H. Rpt. 114-285 (2015) ................................................8

Executive Order 13,807 (Aug. 15, 2017) ................... 14

Memorandum of Understanding

Implementing One Federal Decision

(Apr. 9, 2018) .......................................................... 14

ACP, Powering the Future, Driving Change

Through Clean Energy .......................................... 10

EIA, Today in Energy – The United States is

Now the Largest Global Crude Oil Producer

(Sept. 12, 2018)....................................................... 11

EIA, Today in Energy – United States

Remains the World’s Top Producer of

Petroleum and Natural Gas Hydrocarbons

(May 21, 2018) ........................................................ 11

ICF (for INGAA Foundation), North America

Midstream Infrastructure Through 2035

(2018) ...................................................................... 11

ICF (for Dominion Transmission, Inc.), The

Economic Impacts of the Atlantic Coast

Pipeline (2015) ................................................. 10, 12

v

U.S. Dept. of Transportation, Pipeline and

Hazardous Materials Safety

Administration, General Pipeline FAQs .............. 13

U.S. Dept. of Energy, Electricity

Transmission, Pipelines, and National

Trails (Mar. 25, 2014) ............................................ 20

1

INTEREST OF AMICI CURIAE1

Twenty-one amici curiae trade associations on

behalf of their thousands of members (collectively

“Amici”) submit this brief in support of both

petitioners in this matter, the federal government and

Atlantic Coast Pipeline, LLC (“ACP”).

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. 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 petroleum products provided by U.S.

pipelines to the economy. The Appendix lists the

interests of each of the amici.

SUMMARY OF ARGUMENT

For decades, including in this case, Congress, the

U.S. Forest Service, the U.S. Park Service, and the

entire federal government uniformly and sensibly

recognized the Forest Service’s authority to grant

rights-of-way within Forest Service lands, including

beneath designated surface trails. Yet here the

Fourth Circuit upset that equilibrium by erroneously

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

provided counsel of record for both petitioners and respondents

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

substituting its judgment for that of Congress and the

Executive Branch. Endorsing respondents’ novel

arguments designed to stymie critical energy pipeline

development, the Fourth Circuit unilaterally divested

the Forest Service of jurisdiction to grant rights-ofway through Forest Service lands traversed by the

Appalachian Trail. The court of appeals effectively

transferred those lands to the Park Service, thereby

precluding the Forest Service or any other agency

from granting pipeline rights-of-way, and frustrating

other rights-of-way as well.

Amici concur in the arguments advanced by both

petitioners on a straightforward issue of statutory

construction, and urge the Court to reverse. Indeed,

no other court has adopted such a novel reading of the

Mineral Leasing Act (“MLA”) or National Trails

System Act (“NTSA”). This amici brief further

underscores for the Court the legal and practical

unworkability of the court of appeals’ unprecedented

statutory interpretation that threatens

the

development of critically needed pipelines and other

infrastructure crossing lands beneath national trails

within national forests. This Court should restore

project

proponents’

long-settled

expectations

necessary for complex planning, namely that the

Forest Service has authority to grant a right-of-way

within a national forest.

First, the court of appeals’ unprecedented reading

of the MLA and NTSA effectively requires, for the first

time ever, Congressional approval of each pipeline

right-of-way under the Appalachian Trail or other

similarly designated trails located within national

forests. However, Congress intended for the Forest

Service to make such project-by-project decisions

about rights-of-way within national forests,

3

recognizing the impracticality of requiring Congress

to legislate routine decisions on individual projects.

The decision asserting exclusive Park Service

jurisdiction upsets the status quo without any

legislative determination or environmental benefit to

the Appalachian Trail. The resulting uncertainty and

potential loss of beneficial projects falls chiefly upon

amici’s members and the public who would otherwise

gain 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 longrecognized 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 that the Forest Service cannot grant rights-ofway through its own jurisdictional lands needlessly

threatens U.S. energy security. Given pipelines’

importance to transportation of domestic energy

production

to

market,

policies

encouraging

construction of energy pipelines have 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

4

requiring rights-of-way through lands traversed by

national trails including, but not limited to, roads,

bridges,

electric

transmission

lines,

telecommunications lines, water facilities, and

grazing areas. As no party contests, the Park Service

generally has much narrower discretion than the

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

Service’s unique 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 through lands

traversed by the Appalachian Trail and other

designated trails. This Court should reverse the court

of appeals and provide clear guidance to courts

considering challenges to critical infrastructure

projects nationwide.

ARGUMENT

I.

Congress Did Not Intend to Insert Itself

Into Every Pipeline Crossing a

Designated Trail.

As the petitioners’ briefs explain in detail,

Congress’ enactment of the national forest

management statutes permanently vested jurisdiction

over national forests in the Forest Service—not the

Park Service—and nothing in the MLA or the NTSA

clearly altered that Forest Service jurisdiction.

5

Simply put, the decision to assign administration

of the Appalachian Trail and certain other surface

trails within national forests to the Park Service did

not transfer authority over the 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 particular function –

but the underlying land through which the ACP

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

since its creation, a part of the George Washington

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

§ 1246(a)(1)(A).

Indeed, designated trails under the NTSA

themselves consist of mere “rights-of-way,” including

“across Federal lands under the jurisdiction of

another Federal agency.” 16 U.S.C. § 1246(a)(2); see

also United States v. Union Pac. R. Co., 353 U.S. 112,

120 (1957) (distinguishing grant of a right-of-way

from grant of a fee interest, and finding “[t]here are

no precedents which give the mineral rights to the

owner of the right of way as against the United

States”). Similarly, under the NTSA there exists a

“national trails system” but no “national trails system

lands.” Id. § 1242. As this Court has observed,

“Congress delegated to the Secretary of the Interior

and the Secretary of Agriculture authority to

designate recreational trails and to develop and

administer the entire trails system.” Preseault v.

I.C.C., 494 U.S. 1, 5 n.1 (1990). However, nothing in

the statute attempts to transfer jurisdiction of lands

between agencies. Accordingly, the Forest Service

retained right-of-way decision-making authority for

the proposed 0.1 miles of the ACP project that would

6

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. 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); see also Bd. of Trustees

of Leland Stanford Junior Univ. v. Roche Molecular

Sys., Inc., 563 U.S. 776, 792 (2011) (“if Congress had

intended such a sea change . . . it would have said so

clearly—not obliquely”).

The court of appeals identified no clear change in

the law divesting the Forest Service of its

longstanding jurisdiction. In fact, the court of appeals

proceeded from the wrong starting point by wholly

ignoring the Forest Service’s century-old authority

over the George Washington National Forest. See 16

U.S.C. § 521 (1911); 40 Stat. 1779 (1918). The court

of appeals likewise misapprehended the Forest

Service and the Park Service’s continuous, mutual

understanding that the Forest Service grants rightsof-way within its jurisdictional forest lands. The

United States adopts the same position in this case.

Thus, this is not even a case where an agency has

changed its prior policy under an existing statute.

And even in that scenario, an agency must at a

minimum “display awareness that it is changing

position.” Cf. FCC v. Fox Television Stations, Inc., 556

U.S. 502, 515 (2009) (agency must “display awareness

7

that it is changing position. An agency may not, for

example, depart from a prior policy sub silentio or

simply disregard rules that are still on the books.”).

Here there was simply no legal change other than

directly effectuated by the court of appeals’ incorrect

statutory interpretation.

The Park Service is generally precluded by the

MLA from granting rights-of-way for pipelines

through Park Service lands. 30 U.S.C. §§ 185(a), (b).

Therefore, the court of appeals’ decision that all

Forest Service land traversed by the Appalachian

Trail is now Park Service land—coupled with the

linear nature and long distances of pipeline projects—

effectively requires Congress to pass legislation

approving specific pipeline rights-of-way over such

land. Requiring specific new statutory approval of

each new pipeline right-of-way is 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 a new requirement

of Congressional action on individual rights-of-way.

Congress provided its preference for Executive agency

approvals by giving 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 making such rights-of-way

determinations routinely. Amici are aware of only a

handful of projects that have received Congressional

approval for rights-of-way across undisputed Park

8

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, even after full

environmental review and approval, efforts to enact

pipeline-specific

substantive

legislation

could

languish in Congress irrespective of the critical need

for the proposed project, energy needs by local

communities, or time-sensitive project schedules.

Consistent with the fact that Congress already

gave the agencies pipeline right-of-way authority,

members of Congress also previously deemed

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

would have amended the MLA, 30 U.S.C. § 185(b), to

allow agencies to grant natural gas pipeline rights-ofway over Park Service lands. In doing so, the House

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

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 not what

Congress intended, and is an inappropriate and

impractical result of the court of appeals’ opinion, the

Court should reverse.

9

Restoration of the Forest Service’s longstanding

right-of-way authority, without forcing Congress to

authorize individual pipeline projects, also is

consistent with Congress’ goals regarding the

Appalachian Trail. As a trails statute, the NTSA is

inherently concerned with surface resources and uses.

See 16 U.S.C. § 1241(a) (Congressional purpose to

meet “outdoor recreation needs” and promote “openair, outdoor areas and historic resources of the

Nation”); id. § 1246(j) (listing allowed trail uses, all

consisting of physical or vehicular recreational

activities). The NTSA specifies that the Appalachian

Trial is a “footpath.”

16 U.S.C. § 1244(a)(1).

Moreover, notwithstanding that word’s omission in

the subsequently enacted NTSA provisions for other

trails, each designated trail likewise serves that same

function as a surface “route” created for the same

types of uses. 16 U.S.C. § 1244. The court of appeals

identified no benefit to the Appalachian Trail from

stripping the Forest Service’s authority to grant a

right-of-way located hundreds of feet below the

surface, and following robust environmental reviews

and other agency permitting requirements. And

Congress has made no legislative determination of

any incompatibility between energy pipelines and

land far underneath designated surface trails. The

court of appeals’ contrary determination in this case

is without statutory basis and should not stand.

II.

The Forest Service’s Ability to Permit

Pipeline Infrastructure Is Critical to U.S.

Energy Security.

U.S. energy production relies upon a fullyfunctioning

pipeline

system,

and

pipeline

transportation of domestic natural gas and oil

10

products is essential to manufacturing, electricity

generation, economic development, and job creation.

By precluding Forest Service approvals of pipeline

rights-of-way crossing the Appalachian Trail within

national forests, the court of appeals’ decision

introduces new and considerable 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),

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.

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 can upset years

11

of careful project planning and 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

as of 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

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

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

53. This technological revolution simply would not

have occurred if pipelines were not available to

transport product to market.

And this new

phenomenon is a national security benefit, moving the

United States toward energy independence and away

from relying on other countries to fuel essential

development and satisfy public needs.

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. ICF (for

INGAA Foundation), North America Midstream

Infrastructure through 2035 (2018), at 2,

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

12

of investment equates to an average annual CAPEX

of $44 billion throughout the projection period. Such

expenditures will go to building approximately 41,000

miles of pipeline, along with other infrastructure. Id.

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. Id. Significant employment opportunities

will be created not only within states where

infrastructure development occurs, but across all

states because of indirect and induced labor impacts.

Id.

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

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 failure to approve and construct a

planned pipeline project deprives the nation of a

plethora of benefits – including supporting the

deployment of renewable energy – delays also cause

real economic harm.

These costs include

13

remobilization costs, time value of money costs (for

items already purchased), and general inflation (for

those items that will be purchased at a later date, and

potentially with less advance notice, when the project

is ready to proceed). The price of delay may be many

millions of dollars.

It has long been federal policy, under both

Democrat-led and Republican-led Congresses and

administrations, to promote energy pipelines given

their importance to the U.S. economy. 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, while subject to

their own safeguards, poses potential environmental

effects 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” that 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

14

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 called for,

and various federal agencies agreed to, a “One Federal

Decision” framework to facilitate pipeline and other

infrastructure project decisions. See Executive Order

13,807

(Aug.

15,

2017);

Memorandum

of

Understanding Implementing One Federal Decision,

https://www.whitehouse.gov/wpcontent/uploads/2018/04/MOU-One-FederalDecision-m-18-13-Part-2-1.pdf (Apr. 9, 2018). None of

these measures, however, contemplated a need for

Congressional actions to approve a right-of-way each

time an 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

15

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 petroleum products pipelines. See 30

U.S.C. § 185(a). 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

crossing

the

Appalachian Trail within a national forest. As

specified by petitioners, there are more than 50

existing pipeline rights-of-way that cross the

Appalachian Trail. These are in addition to the

myriad approvals of other rights-of-way (see infra

Section III). But federal rights-of-way are not granted

in perpetuity; rather, existing approvals typically

require renewals. See 30 U.S.C. § 185(n). The MLA

makes clear that it applies to and exclusively governs

the grant or renewal of all pipeline rights-of-way for

transporting “oil, natural gas, synthetic liquid or

gaseous fuels, or any refined product produced

therefrom.” Id. §§ 185(a) & (q). Rights-of-way pre-

16

dating the MLA must be modified to comply with the

MLA. Id. § 185(t). Among other things, existing

rights-of-way and renewals must adhere to the MLA’s

implementing

regulations,

environmental

requirements, and 30-year maximum duration term.

Id. §§ 185(f), (h), & (n). 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 in

jurisdictions across the United States.

The court of appeals’ decision’s potential impacts

on future or existing pipelines are not 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.

17

Figure 1

National Park Service National Trails System

Map

Source: NPS,

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

l?appid=0fd54ceaad1a4d418e140e6e2021bb5b

18

Figure 2

INGAA, 2018 Interstate Natural Gas Pipeline

System Map

Source: Interstate Natural Gas Association of

America, https://www.ingaa.org

19

Figure 3

AOPL-API Oil Liquids Pipeline Map

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

20

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

lands) could be called into question, thereby impeding

the transmission of critical U.S. energy resources.

III.

Conversion of Trails to Park Service

Lands Threatens Rights-of-Way for Other

Critical Infrastructure.

The application of the court of appeals’ decision is

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 right-of-way from

21

the Park Service instead of the Forest Service.

Rather, rights-of-way will become more difficult to

obtain, and retain, due to the Park Service’s chiefly

conservation mandate and consequently narrower

statutory authority to approve productive uses of Park

Service 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 short, 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

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).

22

by such means as will leave them unimpaired for the

enjoyment of future generations.”

54 U.S.C.

§ 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).

|

|

23

The court of appeals’ undue expansion of Park

Service jurisdiction to lands underlying Park Serviceadministered trails heightens risks to realization of

various types of projects. If upheld, the court of

appeals’ decision will unjustifiably subject roads,

bridges, electric 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. Moreover, the Park Service

will bear a higher burden to explain why such rightsof-way over the court of appeals’ newly-created Park

Service lands are not in derogation of the conservation

mission for Park Service lands. These additional

hurdles facing Park Service lands will subject such

projects to undue costs, delays, and litigation risks.3

3 For example, the court of appeals considered and vacated the

Park Service’s permitted right-of-way for the ACP project

beneath the Blue Ridge Parkway (“Parkway”) surface. Sierra

Club, 899 F.3d at 294. Championing the Park Service’s

“conservation mission,” 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.”

Sierra Club, 899 F.3d at 291-92. 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 right-of-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 Organic Act, Congress has not made such a

pronouncement for national trails under the NTSA. See 16

U.S.C. § 460a-2.

24

CONCLUSION

By unlawfully converting Forest Service lands into

Park Service lands, and thereby 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 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 reverse.

25

December 9, 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

26

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

PAUL G. AFONSO

Chief Legal Officer

ANDREA MILES

200 Massachusetts Avenue,

NW, Suite 1100

Washington DC 20001

(202) 682-8000

Counsel for American

Petroleum Institute

INTERSTATE NATURAL

GAS ASSOCIATION OF

AMERICA

JOAN DRESKIN

SANDRA Y. SNYDER

20 F Street, NW

Suite 450

Washington, DC 20001

(202) 216-5900

Counsel for Interstate

Natural Gas Association

of America

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

27

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

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

28

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

DAVID J. SPIGELMYER

400 Mosites Way, Suite 101

Pittsburg, PA 15205

(412) 706-5160

President, Marcellus Shale

Coalition

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