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

No. 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 THE CITY OF STAUNTON, VIRGINIA

AND NELSON COUNTY, VIRGINIA, AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

Cale Jaffe

Counsel of Record

Director, Environmental

and Regulatory Law Clinic

University of Virginia

School of Law

580 Massie Road

Charlottesville, VA 22903

Telephone: (434) 924-4776

cjaffe@law.virginia.edu

Douglas Guynn

City Attorney

City of Staunton, Virginia

Staunton City Hall

Second Floor

116 W. Beverley Street

Staunton VA 24401

Phillip D. Payne, IV

County Attorney

Nelson County, Virginia

Second Floor

402 Court Street

Lovingston, VA 22949

Counsel for Amici Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

i

TABLE OF CONTENTS

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

STATEMENT OF INTEREST OF AMICI

CURIAE .............................................................. 1

SUMMARY OF ARGUMENT..................................... 3

ARGUMENT ............................................................... 5

I.

The City and County Rely on

National Park System Protections

for the Appalachian Trail. ........................... 5

II. Petitioner Atlantic Coast Pipeline

Fails to Even Acknowledge the

Environmental Risks of Its Proposed

Project. ........................................................ 11

III. The National Park Service Has

Accorded the Appalachian Trail the

Same Level of Protection as Other

Park Service Units. .................................... 14

CONCLUSION .......................................................... 20

APPENDIX:

Resolution R2014-67, Nelson County Board of

Supervisors, Resolution in Opposition of

the Atlantic Coast Pipeline (Adopted

September 9, 2014) .......................................... A1

Resolution of the Council of the City of

Staunton, Virginia in Opposition to

Atlantic Coast Pipeline (Adopted October

23, 2014) ........................................................... A3

ii

TABLE OF AUTHORITIES

CASES

Clark Stone Co., Inc. v. North Carolina

Department of Environment and Natural

Resources, 594 S.E.2d 832 (N.C. Ct. App.

2004) .................................................. 4, 15, 16, 17

CONSTITUTION AND STATUTES

16 U.S.C. § 1242(a)(2) ........................................... 4, 16

30 U.S.C. § 185(a)...................................................... 19

30 U.S.C. § 185(b)(1)-(3) ............................................ 19

30 U.S.C. § 185(c) ...................................................... 19

54 U.S.C. § 100501 .................................................... 16

VA. CONST. art. VII, § 3 ............................................... 1

Va. Code § 15.2-1100 ................................................... 1

Va. Code § 15.2-1102 ................................................... 1

Va. Code § 15.2-1200 ................................................... 1

Va. Code § 15.2-1201 ................................................... 1

iii

CASE DOCUMENTS

Clark Stone Co., Inc. v. North Carolina

Department of Environment and Natural

Resources, Case No. 02-CVS-001916,

2003 WL. 23336740 (N.C. App.) (Br. of

Intervenor-Appellants Appalachian Trail

Conference and National Parks

Conservation Association) ................................ 18

FEDERAL GOVERNMENT DOCUMENTS

Eric M. White, et al., National Center for

Natural Resources Economic Research,

FEDERAL OUTDOOR RECREATION TRENDS:

EFFECTS ON ECONOMIC OPPORTUNITIES

(Oct. 2014) ........................................................... 7

Eric M. White, et al., U.S. Dep’t of

Agriculture, FEDERAL OUTDOOR

RECREATION TRENDS: EFFECTS ON

ECONOMIC OPPORTUNITIES (Nov. 2016) .............. 7

Federal Energy Regulatory Commission,

ATLANTIC COAST PIPELINE AND SUPPLY

HEADER PROJECT: FINAL ENVIRONMENTAL

IMPACT STATEMENT, VOL. I, Docket Nos.

CP15-554-000, CP15-554-001, CP15-555000, and CP15-556-000, F.E.R.C./ EIS0274F (July 2017) ............................................. 13

National Park Service, APPALACHIAN

NATIONAL SCENIC TRAIL RESOURCE

MANAGEMENT PLAN (2008) ............................... 15

iv

U.S. Department of the Interior, National

Park Service, MANAGEMENT POLICIES

2006, ISBN 0-16-076874-8 ............................... 16

Visitation Numbers, NATIONAL PARK SERVICE,

(Sept. 23, 2019)

http://www.nps.gov/aboutus/visitationnumbers.htm....................................................... 7

STATE GOVERNMENT DOCUMENTS

Va. Dep’t of Conservation and Recreation,

2017 VIRGINIA OUTDOORS DEMAND

SURVEY (Dec. 2017) ............................................. 8

Va. Dep’t of Conservation and Recreation,

VIRGINIA OUTDOORS PLAN 2018 ................ passim

Virginia Tourism Corporation, THE ECONOMIC

IMPACT OF DOMESTIC TRAVEL ON VIRGINIA

COUNTIES 2018 (Sept. 2019) ........................... 3, 9

LOCAL GOVERNMENT DOCUMENTS

CITY OF STAUNTON COMPREHENSIVE PLAN

2018-2040

(adopted July 11, 2019) ............................ 6, 9, 12

City of Staunton, Virginia, Resolution in

Opposition to Atlantic Coast Pipeline

(Oct. 23, 2014) ................................................... 12

v

Letter from the Hon. Carolyn W. Dull, Mayor,

City of Staunton, to Ms. Julia Wellman,

Va. Dep’t of Envtl. Quality (Feb. 21,

2017) .................................................................. 12

NELSON COUNTY, VIRGINIA COMPREHENSIVE

PLAN (adopted Oct. 8, 2002) ............................... 6

Nelson County Board of Supervisors,

Resolution in Opposition of the Atlantic

Coast Pipeline (Sept. 9, 2014) ......................... 14

OTHER AUTHORITIES

Appalachian Trail Community: Nelson

County, Virginia, APPALACHIAN TRAIL

CONSERVANCY,

https://appalachiantrail.org/home/conser

vation/a-t-community-program/atcommunity-partners/nelson-county-va

(last visited Jan. 16, 2020) ........................... 2, 10

Explore the Trail, APPALACHIAN TRAIL

CONSERVANCY,

https://www.appalachiantrail.org/home/e

xplore-the-trail (last visited Jan. 19,

2020) .................................................................... 7

Awesome Hikes: Mountain Views and

Waterfalls, STAUNTON CONVENTION AND

VISITOR’S BUREAU,

https://visitstaunton.com/alternative spring-break-five-awesome-hikes/ (last

visited Jan. 9, 2020)............................................ 1

vi

Benton MacKaye, An Appalachian Trail: A

Project in Regional Planning, 9 J. AM.

INST. ARCHITECTS 325-330 (Oct. 1921). ............ 15

Blue Ridge Hiking at Wintergreen,

WINTERGREEN RESORT,

https://www.wintergreenresort.com/

Hiking/ (last visited Jan. 16, 2020) .................... 2

Emily Brown, Dominion Touts Atlantic Coast

Pipeline Progress, Mountain

Construction Concerns Opponents,

NELSON COUNTY TIMES (Apr. 27, 2017)............ 13

Jay Erskine Leutze, STAND UP THAT

MOUNTAIN: THE BATTLE TO SAVE ONE

SMALL COMMUNITY IN THE WILDERNESS

ALONG THE APPALACHIAN TRAIL (Scribner

Paperback Ed.).................................................. 16

Jeffrey Halverson, Unprecedented Rain:

Hurricane Camille’s Deadly Flood in the

Blue Ridge Mountains, WASHINGTON

POST (Aug. 19, 2013)......................................... 13

Joeri Rogeli, et al., GLOBAL WARMING OF

1.5°C: AN IPCC SPECIAL REPORT (Oct.

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

Jonathan Jarvis, A Step Too Far for the

Appalachian Trail, POLITICO (Aug. 29,

2019) .................................................................. 19

vii

OUTDOOR INDUSTRY ASSOCIATION, VIRGINIA,

https://outdoorindustry.org/wpcontent/uploads/2017/07/OIA_RecEcoSta

te_VA.pdf (last visited Jan. 13, 2020) ................ 9

1

STATEMENT OF INTEREST

OF AMICI CURIAE1

Amicus curiae, the City of Staunton, Virginia (the

“City”), is a municipality located in the historic

Shenandoah Valley.

Amicus Nelson County,

Virginia (the “County”), is a political subdivision of

the Commonwealth and is located in central

Virginia, in the foothills of the Blue Ridge

Mountains. The City and County have the powers

vested in localities under Virginia law and all

powers pertinent to the conduct of the affairs and

functions of municipal government consistent with

the Constitution and Code of Virginia. See VA.

CONST. art. VII, § 3; Va. Code §§ 15.2-1100, 1102,

1200, 1201. The City is the county seat of Augusta

County, which the Appalachian Trail (the “Trail”)

traverses. In fact, the City rests a short distance

from the Trail, the George Washington and Jefferson

National Forests, and Shenandoah National Park.

These natural resources play a critical role in the

tourism economy upon which the City of Staunton

depends. See, e.g., Awesome Hikes: Mountain Views

and Waterfalls, STAUNTON CONVENTION AND

VISITOR’S

BUREAU,

https://visitstaunton.com/alternative-spring-breakfive-awesome-hikes/ (last visited Jan. 9, 2020).

Pursuant to Supreme Court Rule 37, amici curiae have the

consent of Petitioners and Respondents for the filing of this

brief. No counsel for any party authored this brief in whole or

in part, and no person or entity other than above-named amici

curiae or their counsel made a monetary contribution intended

to fund its preparation or submission.

1

2

The County encompasses 474 square miles, much

of which lies within the George Washington National

Forest, and tourism in the National Forest and along

the Appalachian Trail form an essential component

of the County’s economy. The County is also home to

Wintergreen Resort, a mountain resort that attracts

visitors year-round. Families come primarily from

the Mid-Atlantic and Southeastern regions to enjoy

unparalleled views and to vacation at this nationally

known destination. The Appalachian Trail is a

popular destination in its own right for Nelson

County, given that forty-five miles of the Trail are

located within the County and the Trail connects to

popular hiking routes within Wintergreen Resort.

See Blue Ridge Hiking at Wintergreen, WINTERGREEN

RESORT,

https://www.wintergreenresort.com/

Hiking/ (last visited Jan. 16, 2020); Appalachian

Trail Community: Nelson County, Virginia,

APPALACHIAN

TRAIL

CONSERVANCY,

https://appalachiantrail.org/home/conservation/a-tcommunity-program/at-community-partners/nelsoncounty-va (last visited Jan. 16, 2020).

The City and County maintain overriding and

sustained interests in the irreplaceable natural

features of the Appalachian Trail. The clear-cutting

of forest corridors and disruption of viewsheds along

the Trail threaten to severely diminish the value of

this national resource and iconic tourist destination.

3

SUMMARY OF ARGUMENT

The City and County, as amici curiae,

respectfully ask this Court to affirm the Fourth

Circuit’s determination that Congress never granted

the U.S. Forest Service authority to grant a right-ofway under the Mineral Leasing Act to construct a

major natural gas pipeline across the Appalachian

Trail, a unit of the National Park System within the

George Washington National Forest.

Tourism provides more than $270 million in

expenditures for the City of Staunton and Nelson

County combined, contributing approximately $20

million in state and local tax receipts annually. See

Virginia Tourism Corporation, THE ECONOMIC

IMPACT OF DOMESTIC TRAVEL ON VIRGINIA COUNTIES

2018, at 27-28 (Sept. 2019), https://www.vatc.org/wpcontent/uploads/2019/09/2018-Economic-Impact-ofDomestic-Travel-on-Virginia-and-Localities.pdf. The

Virginia Outdoors Plan, developed by the Virginia

Department of Conservation and Recreation in

partnership with federal and state agencies,

including the National Park Service and the U.S.

Forest Service, highlights the critical role that land

conservation plays in developing these economic

opportunities. See Va. Dep’t of Conservation and

Recreation, VIRGINIA OUTDOORS PLAN 2018, at 1.3

(2018),

https://www.dcr.virginia.gov/recreationalplanning/document/vopall2018.pdf

(hereinafter

VIRGINIA OUTDOORS PLAN).

The Appalachian Trail is an integral part of the

tourist economy on which amici curiae depend.

Contrary to Petitioners’ claims, the Appalachian

4

Trail is not merely a thoroughfare that brings people

through a region—it is a tourist destination and

feature in its own right, like other units of the

National Park System. It is the Appalachian Trail

experience that proves to be an important contributor

to the City’s and County’s economies. Given the

centrality of outdoor recreation to their economies,

amici curiae the City of Staunton and Nelson County

are deeply reliant on the natural and cultural

landscapes that the Appalachian Trail preserves.

Importantly, the National Park Service has

adopted this understanding of the Trail in prior

cases. In Clark Stone Co., Inc. v. North Carolina

Department of Environment and Natural Resources,

594 S.E.2d 832, 839 (N.C. Ct. App. 2004), the

National Park Service provided evidence affirming

that a gravel mine more than two miles from the

Appalachian Trail would have a significant adverse

effect on the purposes for which the Trail was

established. Id. at 835. This assessment was rooted

in application of a North Carolina law that required

protections for any “publicly owned park, forest, or

recreation area,” which according to the National

Park Service included the Appalachian Trail. Id. at

838. In a similar vein, the National Trails System

Act established the Appalachian Trail “for the

conservation and enjoyment of the nationally

significant scenic, historic, natural, or cultural

qualities of the areas” through which the Trail might

pass. 16 U.S.C. § 1242(a)(2).

5

ARGUMENT

I. The City and County Rely on National

Park

System

Protections

for

the

Appalachian Trail.

Federal Petitioners and Petitioner Atlantic Coast

Pipeline (“ACP”) erroneously insist that the

Appalachian Trail is merely and exclusively a

“footpath” that traverses federal, state, and private

lands. See Br. of ACP Pet’r, at 20. In this way,

Petitioners ask the Court to view the Trail as no

different than any other thoroughfare.

Br. of

Federal Pet’rs, at 25 (alleging that the “central flaw

in the [Fourth Circuit’s] logic lies in the fact that the

Appalachian Trail is a ‘trail,’ not ‘land.’”); id. at 2627 (“In other words, a “trail” is simply a route

“across,” “over,” or “through” a region of land.”). Yet,

Petitioners’ assertion fundamentally ignores that the

Trail serves as a nationally significant tourist

attraction and natural resource attribute in its own

right. Simply put, people do not use the Trail as a

means for traveling from Point A to Point B. Rather,

they visit places like Staunton and Nelson County in

order to hike on the Trail and enjoy being outdoors.

They might travel to our region by car, but they

come for the Trail and all of its attributes.

Federal land conservation for the Trail is integral

to promoting recreational and tourism-based

economies, in addition to preserving the Trail’s

natural integrity. See VIRGINIA OUTDOORS PLAN, at

12.5 (“Most of the popular forms of outdoor

recreation—hiking, water access, visiting natural

areas and park—are either dependent on resource

lands and water or are enhanced by their proximity

6

to them. Land protection is essential for ensuring

outdoor recreation opportunities for Virginia’s

growing population.”). The City and the County have

continued to rely on an understanding that the Trail

is a resource in its own right, and that as federal

land the Appalachian National Scenic Trail is part of

the National Park System. The City and County, in

fact, have long promoted recreation and tourism that

depend on amenities like the Trail. See CITY OF

STAUNTON COMPREHENSIVE PLAN 2018-2040, at 5-1

(adopted July 11, 2019) (describing the City as

providing “[a] quality of life founded on clean and

accessible waterways, scenic views, woodlands, and

outdoor recreation is particularly important in

today’s society. It is important to manage natural

resources so that they continue to provide social,

economic, and environmental benefits to people over

time while supporting other natural functions”),

https://www.ci.staunton.va.us/home/showdocument?i

d=6446; NELSON COUNTY COMPREHENSIVE PLAN AS

APPROVED BY THE NELSON COUNTY BOARD OF

SUPERVISORS AND NELSON COUNTY PLANNING

COMMISSION, at 49 (adopted Oct. 8, 2002) (“Based on

citizen and county input, greenways were developed

…

[f]or increased recreational and tourism

opportunities, [and to] provide connections to key

destination points and attractions including: [the]

George Washington National Forest, Shenandoah

National Park, … and the Appalachian Trail”),

http://www.nelsoncounty-va.gov/government/nelsoncounty-comprehensive-plan/.

Evidence on the significance of the Trail as a

resource is well-documented. The nonprofit

Appalachian Trail Conservancy estimates that over

three million visitors are attracted to the Trail each

7

year to take advantage of its recreational

opportunities. See Explore the Trail, APPALACHIAN

TRAIL

CONSERVANCY,

https://www.appalachiantrail.org/home/explore-thetrail (last visited Jan. 19, 2020). The popularity of

the Trail, in fact, rivals that of other nationally

prominent National Park Service lands, such as

Olympic National Park and Glacier National Park,

which recorded 3.1 million visitors and 2.9 million

visitors in calendar year 2018, respectively. See

Visitation Numbers, NATIONAL PARK SERVICE, (Sept.

23, 2019), http://www.nps.gov/aboutus/visitationnumbers.htm.

The Forest Service also has recognized the value

provided to communities like amici curiae from

outdoor recreation resources on federal lands, which

include “business activity generated from spending

by recreation visitors, increased property values and

business attraction because of natural amenities

those resources provide, and health benefits from

physical activity and stress reduction.” Eric M.

White, et al., U.S. Dep’t of Agriculture, FEDERAL

OUTDOOR RECREATION TRENDS: EFFECTS ON

ECONOMIC OPPORTUNITIES, at 21 (Nov. 2016),

https://www.fs.fed.us/pnw/pubs/pnw_gtr945.pdf.

Forest Service data confirm increased participation

in outdoor activities on federally-owned lands,

including lands that form part of the Appalachian

Trail. See Eric M. White, et al., National Center for

Natural Resources Economic Research, FEDERAL

OUTDOOR RECREATION TRENDS: EFFECTS ON

ECONOMIC OPPORTUNITIES, at 3 (Oct. 2014),

https://www.fs.fed.us/research/docs/outdoorrecreation/ficor_2014_rec_trends_economic_opportun

ities.pdf (finding significant increases in recreational

8

activity on federal lands over a ten-year period from

1999 to 2009).

The Commonwealth of Virginia likewise has

benefited from an increase in appreciation for

outdoor recreation opportunities provided by the

Trail. See VIRGINIA OUTDOORS PLAN, at 2.3-2.4

(finding hiking to be one of the top outdoor activities

for growth in Virginia, with 21% of Virginians

engaging in hiking in 2017). Communities in the

Central Shenandoah and Thomson Jefferson regions,

which include both the City and the County, report

the highest engagement with their surrounding

natural environment and outdoor recreation

opportunities as compared to other Virginia

residents. See Va. Dep’t of Conservation and

Recreation, 2017 VIRGINIA OUTDOORS DEMAND

SURVEY, at 28 (Table III-2) (Dec. 2017),

https://www.dcr.virginia.gov/recreationalplanning/document/vop-app-02-outdoors-survey.pdf

(hereinafter VIRGINIA OUTDOORS DEMAND SURVEY)

(finding that amici curiae’s residents are the most

likely to visit natural areas (80% to 83% of residents)

and more likely to participate in hiking and

backpacking trips than Virginians on average).

Increased participation in recreational activities

along the Trail “stimulate[s] local tourism, which by

extension, benefits Virginia’s economy wherever

there is an abundance of recreating opportunities.”

VIRGINIA OUTDOORS PLAN, at 1.2. A recent stategovernment survey confirmed the critical importance

not simply of the Trail, but of the scenery along the

Trail. An astonishing 89% of survey respondents

rated the scenery as “very important” or “somewhat

important” when making travel plans. VIRGINIA

OUTDOORS DEMAND SURVEY, at 22 (Figure III-31).

9

Tourism is not a fringe benefit to the economy of

amici curiae; it is absolutely integral. Statewide,

outdoor recreation activities generate $21.9 billion in

expenditures in Virginia annually, while supporting

197,000 jobs. See OUTDOOR INDUSTRY ASSOCIATION,

VIRGINIA,

https://outdoorindustry.org/wpcontent/uploads/2017/07/OIA_RecEcoState_VA.pdf

(last visited Jan. 13, 2020). For the City, tourismrelated domestic travel generated $59.6 million in

expenditures, contributing more than $4 million in

state and local tax receipts. See Virginia Tourism

Corporation, THE ECONOMIC IMPACT OF DOMESTIC

TRAVEL ON VIRGINIA COUNTIES 2018, at 28 (Sept.

2019),

https://www.vatc.org/wp-content/uploads/

2019/09/2018-Economic-Impact-of-Domestic-Travelon-Virginia-and-Localities.pdf.

For the County,

expenditures exceeded $211 million and generated

more than $15 million in tax revenue. See id. at 27.

The City’s per capita spending on parks and

recreation

has

widely

exceeded

statewide

investments, at $101.68 per capita compared to a

statewide figure of $71.09. See VIRGINIA OUTDOORS

PLAN, at 13.35. Meanwhile, in the County, there are

more than 46,000 acres of land that have been

proactively conserved, either through acquisition of

conservation and other easements or through

ownership. See id. at 13.63 (Table 10.6).

To protect its economic investments in tourism

and outdoor recreation, the City adopted a

Comprehensive Plan that includes a “community

character” goal to “minimize degradation of scenic

and natural resources.” CITY OF STAUNTON

COMPREHENSIVE PLAN 2018-2040, at 1-2. The City’s

Comprehensive Plan goes on to identify key

economic opportunities in tourism and affirms that

10

the City’s “Visit Staunton” initiative “aspires to be

nationally recognized as the Shenandoah Valley’s

preferred getaway destination.” Id. at 6-17. It

documents accolades that Staunton has earned in

recent years, including listings among TRAVEL +

LEISURE’s “America’s Favorite Mountain Towns”

(2014), and SOUTHERN LIVING’s “Small Towns We

Love” (2012-13). Id. at 6-17, 6-18.

The County’s Comprehensive Plan establishes an

economic development goal to “encourage tourism as

a viable means to diversify the local economy.” See

NELSON COUNTY COMPREHENSIVE PLAN, at 6. The

County Plan further recognizes “the preservation of

the viewsheds of scenic vistas as an important part

of the county’s tourism program.” Id. at 11.

Consistent with its Plan, the County has registered

as an “Appalachian Trail Community” partner. See

Appalachian Trail Community: Nelson County,

Virginia,

APPALACHIAN

TRAIL

CONSERVANCY,

https://appalachiantrail.org/home/conservation/a-tcommunity-program/at-community-partners/nelsoncounty-va (last visited Jan. 16, 2020).

Regionalscale plans similarly have promoted the significance of

the Trail corridor and the natural, scenic qualities of

the landscape surrounding the Trail. Thus, the

Virginia Outdoors Plan promotes “trail towns …

along Virginia state trails and parks, [and the]

Appalachian Trail.” VIRGINIA OUTDOORS PLAN, at

8.10.

Together, these various plans promote the amici

curiae’s reliance on the Appalachian Trail corridor to

grow their economies through tourism and

recreation. Allowing construction of a major natural

gas pipeline across this unit of the National Park

System would cause significant harm to the

11

Appalachian Trail experience, which in turn would

adversely impact the economies of adjacent

communities like the City and the County.

II. Petitioner Atlantic Coast Pipeline Fails

Even to Acknowledge the Environmental

Risks of Its Proposed Project.

Petitioner Atlantic Coast Pipeline alleges that

preventing the construction of its pipeline project

would “not even promote environmental protection,”

and even goes so far as to offer the outlandish claim

that “the Atlantic Coast Pipeline, like other natural

gas pipelines, will do much for the environment.” Br.

of ACP Pet’r, at 47. These brazen assertions ignore

the peer-reviewed science on climate change and the

need to offset energy services provided by natural

gas infrastructure with zero-carbon renewable

energy alternatives and investments in energy

efficiency. The United Nations’ Intergovernmental

Panel on Climate Change (“IPCC”) has forecast the

need for dramatic reductions in usage of natural

gas—between 13% to 62%, absent carbon capture

and sequestration, by the year 2050. See Joeri

Rogeli, et al., GLOBAL WARMING OF 1.5°C: AN IPCC

SPECIAL REPORT, at 97 (Oct. 2018). These reductions

are necessary as part of any mitigation pathway

compatible with keeping global warming to within

1.5°C of pre-industrial levels. See id. A massive

investment in natural gas infrastructure that would

remain in use for decades is plainly inconsistence

with the IPCC’s guidance.

In addition to the climate-related harms

attributed to reliance on natural gas, there are also

acute concerns with respect to water quality for the

12

City of Staunton and Nelson County. One of the

City’s primary sources for public water supplies is

Gardner Spring, which can provide as much as 4.5

million gallons of water per day. See CITY OF

STAUNTON COMPREHENSIVE PLAN 2018-2040, at 8-22.

The path of the Atlantic Coast Pipeline would cross

right through the critically important Gardner

Spring recharge area. The City’s concern about this

impact has long been established, beginning with a

resolution adopted by Staunton City Council in

October of 2014. See Resolution of the Council of the

City of Staunton, Virginia, in Opposition to Atlantic

Coast Pipeline (Oct. 23, 2014) (included in the

Appendix to this brief). After years of study, the City

reaffirmed its opposition. In a letter to the Virginia

Department of Environmental Quality in February

of 2017, the City sounded the alarm on the threat to

its public water supply:

We submit that both Dominion and the

Federal Energy Regulation Commission

… have utterly failed to account yet for

the

potentially

catastrophic

consequences of the project as to the

route of the line that would be

unacceptably within the ambit of our

water source known as Gardner Spring.

… That recharge area is vital, because

the bulk of the water that feeds

Gardner Spring comes from an

extensive

underground

aquifer

system….

See Letter from the Hon. Carolyn W. Dull, Mayor,

City of Staunton, to Ms. Julia Wellman, Va. Dep’t of

13

Envtl.

Quality

(Feb.

21,

2017),

https://www.abralliance.org/wpcontent/uploads/2017/03/Staunton-City-Councilletter-of-opposition-to-ACP.pdf.

The harms to the County may be even more

severe. The Atlantic Coast Pipeline would bisect the

entirety of Nelson County, with the construction

process requiring the clear-cutting of a 125-foot path

along the pipeline route.

See Emily Brown,

Dominion Touts Atlantic Coast Pipeline Progress,

Mountain

Construction

Concerns

Opponents,

COUNTY

TIMES

(Apr.

27,

2017),

NELSON

https://atlanticcoastpipeline.com/news/2017/4/27/dom

inion-touts-atlantic-coast-pipeline-progressmountain-construction-concerns-opponents.aspx.

The risks from deforestation along the pipeline route

would be acute for the County, which is home to

steep, mountainous slopes. The threat here is not

theoretical; Nelson County was the site of

catastrophic mudslides and the tragic loss of life

following Hurricane Camille in August of 1969. See

Jeffrey Halverson, Unprecedented Rain: Hurricane

Camille’s Deadly Flood in the Blue Ridge Mountains,

WASHINGTON

POST

(Aug.

19,

2013),

https://www.washingtonpost.com/news/capitalweather-gang/wp/2013/08/19/unprecedented-rainhurricane-camilles-deadly-dlood-in-the-blue-ridgemountains/. Evidence submitted by the County to

the Federal Energy Regulatory Commission

describes “the potential for cleared pipeline right-ofway within mountainous areas, including Nelson

County, Virginia, to become more susceptible to rock

slides and landslides.” See Federal Energy

Regulatory Commission, ATLANTIC COAST PIPELINE

SUPPLY

HEADER

PROJECT:

FINAL

AND

14

ENVIRONMENTAL IMPACT STATEMENT, VOL. I, Docket

Nos. CP15-554-000, CP15-554-001, CP15-555-000,

and CP15-556-000 FERC/EIS-0274F, at 4-30 (July

2017). Indeed, the County has long highlighted

environmental concerns with the pipeline project, as

“the proposed route through Nelson County

traverses much of our most scenic, rugged, and

undeveloped terrain,” and “would have a harmful

effect on tourism, a critical component of the

economy of Nelson County.” See Nelson County

Board of Supervisors, Resolution in Opposition of the

Atlantic Coast Pipeline (Sept. 9, 2014) (included in

the Appendix to this brief).

Simply stated, amici curiae object to Petitioner’s

description

of

the

pipeline

project

as

environmentally beneficial. The City and County

have documented numerous environmental concerns

with the Atlantic Coast Pipeline through the

permitting processes before federal and state

agencies. Visual impacts, the potential for

landslides, and harms to water quality remain

persistent worries.

III. The National Park Service Has

Accorded the Appalachian Trail the

Same Level of Protection as Other Park

Service Units.

Petitioner Atlantic Coast Pipeline wrongly argues

that Respondents “asserted a novel substantive

barrier” in defending the Appalachian Trail’s status

as a unit of the National Park System. See Br.

of ACP Pet’r, at 14 (emphasis in original). The

legal claim is not new. Fifteen years ago the

National Park Service and the U.S. Forest Service

15

understood that “the purposes of the Appalachian

Trail” merited the same level of protection that

Respondents seek here. See Clark Stone Co., Inc. v.

North Carolina Department of Environment and

Natural Resources, 594 S.E.2d 832, 839 (N.C. Ct.

App. 2004). Evidence submitted on behalf of federal

agencies in Clark Stone was premised on those

historic purposes.

Benton MacKaye, the visionary behind the Trail,

described the Virginia portion of the Trail as “the

wooded wilderness of the southern Appalachians

where [one] finds preserved much of the primal

aspects of the days of Daniel Boone.” See Benton

MacKaye, An Appalachian Trail: A Project in

Regional Planning, 9 J. AM. INST. ARCHITECTS 325330 (Oct. 1921). MacKaye envisioned the Trail as a

means to connect humans with nature in an

increasingly industrial world. His vision has largely

been achieved through federal land conservation

efforts directed by Congress. See National Park

Service, APPALACHIAN NATIONAL SCENIC TRAIL

RESOURCE MANAGEMENT PLAN, at I-2 (2008),

https://www.nps.gov/appa/learn/management/upload

/Appalachian_Trail_Resource_Management_Plan.pdf

(describing the National Trails System Act’s

authorization of federal land acquisition to create

and protect a corridor for the Trail). MacKaye’s

understanding of the landscape surrounding the

Trail in Virginia continues to play a part in the

region’s natural and cultural heritage.

Federal Petitioners concede that the National

Trails System Act of 1968 “does not define the word

‘trail,’” Br. of Federal Pet’rs, at 26, but they overlook

the fact that the Trail, as Congress intended, serves

a prominent role in the tourism economy of the

16

region, attracting sightseers and outdoor enthusiasts

alike, just as other National Park Service lands

provide

analogous

benefits

to

their

local

communities.

Congress provided that a “national scenic trail,”

like the Appalachian Trail, is established “to provide

for maximum outdoor recreation potential and for

the conservation and enjoyment of the nationally

significant scenic, historic, natural, or cultural

qualities of the areas through which such trails may

pass.” 16 U.S.C. § 1242(a)(2) (emphasis added). The

Appalachian Trail is also a “unit” of the National

Park System. See 54 U.S.C. § 100501. As the

National Park Service’s management policies

confirm, “Regardless of the many names and official

designations of the park units that make up the

national park system, all represent some nationally

significant aspect of our natural or cultural

heritage.” See U.S. Department of the Interior,

National Park Service, MANAGEMENT POLICIES 2006,

ISBN

0-16-076874-8,

Section

1.2,

at

8,

https://www.nps.gov/policy/MP_2006.pdf (last visited

Jan. 10 2020).

The proper analysis of the issue in the present

case bears a striking similarity to the analysis of

“the purposes of the Appalachian Trail” at issue in

Clark Stone Co., Inc. v. North Carolina Department

of Environment and Natural Resources, 594 S.E.2d

832, 839 (N.C. Ct. App. 2004), which was

popularized in Jay Erskine Leutze’s book, STAND UP

THAT MOUNTAIN: THE BATTLE TO SAVE ONE SMALL

COMMUNITY IN THE WILDERNESS ALONG THE

APPALACHIAN TRAIL (Scribner Paperback Ed. 2013).

The North Carolina court in Clark Stone affirmed

state environmental authorities’ revocation of a

17

mining permit after learning of a proposed gravel

mine that would be in the viewshed of the

Appalachian Trail. Mr. Leutze summarized the case

for his lay audience, explaining, “In 1968 the

National Trails System Act designated the

Appalachian Trail a National Scenic Trail, giving the

footpath the status of a congressionally authorized

unit managed by the Department of the Interior. In

legal terms, [Clark Stone’s] crusher might as well

have been going in next to Yellowstone, or

Yosemite.” Id. at 34.

The Atlantic Coast Pipeline represents a far more

direct menace to the Trail than did the gravel mine

at issue in Clark Stone. The Clark Stone mine, after

all, would not have crossed through Trail lands, with

drilling on both sides of the Trail. Indeed, the

“distance between the [T]rail … and the mine site

[was] approximately 2 miles.” Clark Stone, 594

S.E.2d at 834 (quoting evidence from the

Department

of

Environment

and

Natural

Resources). A state official “testified that the mining

operation was ‘clearly visible in good weather from

[the Appalachian Trail]” and an acoustical analysis

estimated that “the mining site’s “primary jawcrusher is the major noise problem’ and ‘would be

noticed by and would likely be a major irritant to

any hearing person walking the [T]rail.’” Id. at 835

(alterations in original).

Despite the fact that the mining project would

only be visible at a distance and only “in good

weather,” the North Carolina Court of Appeals

upheld revocation of the permit because the activity

would have had “a significant adverse effect on the

purposes of the Appalachian Trail,” and state mining

law mandated consideration of whether “the

18

operation will have a significant adverse effect on

the purposes of a publicly owned park, forest, or

recreation area.” Id. at 838-39 (emphases added).

The relevancy for the current case is apparent.

The Appalachian Trail was not dismissed as a mere

footpath in North Carolina; it was not irrationally

discredited as “a ‘trail,’ [but] not ‘land.’” Br. of

Federal Pet’rs, at 25. Rather, the Trail was

acknowledged, as it must be here, as “a publicly

owned park, forest, or recreation area.” 594 S.E.2d at

838. This interpretation is precisely how the City of

Staunton and Nelson County understand the Trail.

The Appalachian Trail experience is an invaluable

resource, like any other National Park, and it draws

thousands of visitors to our region.

As the National Park Service’s park manager for

the Appalachian National Scenic Trail affirmed in

Clark Stone, protecting the purpose of the Trail

required accounting for “adverse visual effects”

within “the vicinity” of the Trail. See Br. of

Intervenor-Appellants Appalachian Trail Conference

and National Parks Conservation Association, Clark

Stone Co., Inc. v. North Carolina Department of

Environment and Natural Resources, Case No. 02CVS-001916, 2003 WL 23336740 (N.C. App.)

(Appellate Brief), at 7-8 (filed July 9, 2003) (quoting

the affidavit of the National Park Service’s Park

Manager). The U.S. Forest Service in Clark Stone

also conceded the importance of analyzing impacts

beyond the limited footprint of the path alone, and

“concluded that Clark Stone’s quarry did not meet

the higher standard of scenic protection that the

Forest Service demands because the mine is not

‘subordinate in the viewed landscape’” from the

19

Trail. Id. at 8-9 (quoting the U.S. Forest Service’s

landscape architect).

With respect to the current controversy over the

Atlantic Coast Pipeline, a former director of the

National Park Service has similarly described the

Appalachian Trail as a National Park System

resource, noting that Petitioner Atlantic Coast

Pipeline “wants to do something that has never been

done in the half century since the iconic hiking path

was enshrined in law: force a pipeline across the

Appalachian Trail on federal land managed by the

Forest Service.” See Jonathan Jarvis, A Step Too Far

for the Appalachian Trail, POLITICO (Aug. 29, 2019)

at https://www.politico.com/agenda/story/2019/08/29/

appalachian-trail-dominion-energy-000943.

Importantly, Mr. Jarvis assumed that Petitioner’s

approach would be to go to Congress to amend the

law, rather than to this Court to re-interpret it: “To

get its way, the company must persuade lawmakers

to overturn a federal court decision and change a law

that has protected important parts of the trail for

almost 50 years. Congress should say no.” Id.

The Mineral Leasing Act, 30 U.S.C. §§ 185(a),

185(b)(1)-(3), and 185(c), grants the Secretary of the

Interior authority to grant gas pipeline rights-of-way

across “Federal lands”. 30 U.S.C. §185(a). “Federal

lands” means “all lands owned by the United States

except lands in the National Park System.” 30

U.S.C. 185(b)(1). Federal Petitioners’ curious

argument is that the Trail is not “land” under these

statutes for the purposes of the determining “lands

in the National Park System,” but nevertheless is

“land” for the purposes of granting pipeline rights-ofway across “Federal Lands.” See Br. of Federal

Pet’rs, at 41.

As the Clark Stone litigation

20

illustrates, Federal Petitioners’ summation of the

Trail is contradicted by the experience of those who

use it and by the tourist economies of communities

that rely on it. It is more than a mere footpath. It is

a vital, national resource.

CONCLUSION

Amici Curiae City of Staunton and Nelson

County, Virginia ask that the judgment of the U.S.

Court of Appeals for the Fourth Circuity be affirmed.

Respectfully submitted,

Cale Jaffe

Counsel of Record

Director, Environmental and Regulatory Law Clinic

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903

Telephone: (434) 924-4776

cjaffe@law.virginia.edu

Douglas Guynn, City Attorney

City of Staunton, Virginia

Staunton City Hall, Second Floor

116 W. Beverley Street

Staunton Virginia 24401

Phillip D. Payne, IV, County Attorney

Nelson County, Virginia

402 Court Street, 2nd Floor

Lovingston, Virginia 22949

DATED: January 22, 2020

A1

APPENDIX

I. Resolution R2014-67, Nelson County

Board of Supervisors, Resolution in

Opposition of the Atlantic Coast Pipeline

(Adopted September 9, 2014):

WHEREAS, a joint venture led by Dominion has

proposed a gas pipeline (Atlantic Coast Pipeline

formerly Southeast Reliability Project) to run from

West Virginia to North Carolina, crossing Nelson

County from the Blue Ridge Mountains to the James

River; and

WHEREAS, the proposed route through Nelson

County traverses much of our most scenic, rugged,

and undeveloped terrain; and

WHEREAS, the construction of the pipeline through

the watershed of the Rockfish River would disturb

and damage surface water resources at or near every

stream crossing; and

WHEREAS, the construction and existence of a gas

pipeline of the magnitude proposed would have a

harmful effect on tourism, a critical component of

the economy of Nelson County; and

WHEREAS, real estate along or near the proposed

route would be adversely impacted, harming not only

those property owners directly in the path of the

pipeline, but also neighboring properties; and

A2

WHEREAS, the building and continued presence of

a gas pipeline through the county would impose a

significant burden on local government resources

including but not limited to our largely volunteer fire

and rescue services; and

WHEREAS, Nelson County would not derive any

perceptible benefit from the project sufficient to

compensate us for the harm caused to property

owners, tourism, natural resources, and the ongoing

disruption of life in the county for a period of years.

NOW, THEREFORE, BE IT RESOLVED, that the

Nelson County Board of Supervisors hereby firmly

opposes the construction and operation of the

Atlantic Coast Pipeline.

Adopted: September 9, 2014

Attest: Stephen A. Carter, Clerk, Nelson County

Board of Supervisors

Available online at: https://www.abralliance.org/wpcontent/uploads/2019/03/Nelson-County-Resolution9_9_2014.pdf

A3

II. Resolution of the Council of the City of

Staunton, Virginia in Opposition to

Atlantic Coast Pipeline (Adopted October

23, 2014):

WHEREAS, Dominion Virginia Power has entered

into what the company describes as a joint venture

with three other major U.S. energy companies—

Duke Energy, Piedmont Natural Gas and AGL

Resources—to build and own a natural gas pipeline

which will traverse portions of three states,

including 11 counties and two cities in the

Commonwealth of Virginia; and

WHEREAS, the proposed project will pass in close

proximity to a public water source and boundary of

the City; and

WHEREAS, representatives of Dominion Virginia

Power, upon the invitation of City Council of the

City of Staunton, Virginia, made a presentation

about the project to Council at its meeting on August

28, 2014, held at Robert E. Lee High School to

accommodate an overflow audience; and

WHEREAS, reflective of the considerable public

interest in the project, dozens of individuals at the

meeting, through questions submitted to City

Council and comments made during the public

comment period, registered their strong opposition to

the project, as proposed; and

A4

WHEREAS, members of City Council share many of

the concerns expressed by citizens of the City and

desire, as a body, to express their opposition to the

project.

NOW, THEREFORE, BE IT RESOLVED by the

Council of the City of Staunton, Virginia, that:

1. Council joins with other localities in the

Commonwealth of Virginia, including the counties of

Augusta and Nelson, in their expressions of concern

about and opposition to the Atlantic Coast Pipeline.

2. Council opposes the construction of the Atlantic

Coast Pipeline and urges Dominion Virginia Power

and all others involved to reduce reliance on natural

gas and to seek solutions for the 21st century,

including conservation and renewable energy such

as solar and wind power, that will satisfy future

energy needs without imperiling the natural bounty

and beauty of our region and the health and safety of

our citizens.

3. In the event Dominion Virginia Power and its

partners submit an application for construction of

the Atlantic Coast Pipeline to the Federal Energy

Regulatory Commission (“FERC”), Council, in the

strongest possible terms, urges FERC to withhold

approval of the project, on the basis that the natural

gas to be transported is not believed to be required to

serve the energy needs of Virginia or North Carolina

(a significant portion of which can be satisfied by

conservation and renewable energy sources) and,

A5

therefore, the pipeline will neither serve the public

interest nor satisfy the legal standard of “public

convenience and necessity.”

4. Council respectfully requests that the Governor of

Virginia reconsider his public endorsement of the

Atlantic Coast Pipeline, and, after consultation with

the City of Staunton and other localities that would

be impacted by the project and consideration of risks

to the environment (including threats to karst

environments and water supplies locally in the

Shenandoah

Valley,

elsewhere

in

the

Commonwealth of Virginia and in the District of

Columbia and the State of Maryland) and the state’s

economy (including its agricultural and tourism

sectors), oppose the project.

5. Council respectfully requests that Senator Mark

Warner, Senator Tim Kaine and Congressman Bob

Goodlatte join publicly in opposition to the project,

communicate their opposition to FERC and take

appropriate action to encourage FERC to withhold

approval of the project.

6. In the event Dominion Virginia Power and its

partners elect to proceed with the construction of the

Atlantic Coast Pipeline, and the project is approved

by FERC, Council implores Dominion Virginia

Power and its partners to give full consideration to

the use of existing utility and highway corridors for

the project, so as to minimize, to the greatest extent

possible, the impacts of construction, maintenance

and operation of the project.

A6

7. Council directs that the Clerk of Council send a

copy of this resolution to Dominion Virginia Power,

Senator Mark Warner, Senator Tim Kaine,

Congressman Bob Goodlatte, Governor Terry

McAuliffe and Cheryl A. Lafleur, Chairman of

FERC.

Adopted this 23rd day of October, 2014.

Carolyn W. Dull, Mayor

Attest: Linda Little, Clerk of Council

Available online at: https://www.abralliance.org/wpcontent/uploads/2019/03/City-of-StauntonResolution-10_23_2014.pdf