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.,

v.

Petitioners,

COWPASTURE RIVER PRESERVATION ASSOCIATION, ET AL.,

Respondents.

ATLANTIC COAST PIPELINE, LLC,

v.

Petitioner,

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 RUTHERFORD INSTITUTE

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

John W. Whitehead

Counsel of Record

Douglas R. McKusick

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

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

i

QUESTION PRESENTED

Whether the United States Forest Service has

statutory authority under the Mineral Leasing Act to

grant a gas pipeline right-of-way across the

Appalachian National Scenic Trail.

ii

TABLE OF CONTENTS

QUESTION PRESENTED....................................... i

TABLE OF AUTHORITIES ................................. iii

INTEREST OF AMICUS CURIAE ........................ 1

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

ARGUMENT ............................................................. 2

I. Racial Minorities Have Historically

Been, And Continue To Be, Subject To

Environmental Racism ............................... 2

II. The Atlantic Coast Pipeline Will Have

a Disparate Impact on Racial

Minorities ...................................................... 7

CONCLUSION ....................................................... 11

iii

TABLE OF AUTHORITIES

Cases

Cowpasture River Pres. Ass’n v. Forest Serv., 911

F.3d 150 (4th Cir. 2018).......................................... 7

Friends of Buckingham v. State Air Pollution Control

Bd., No. 19-1152, 2020 WL 63295 (4th Cir. Jan. 7,

2020) .............................................................. 8, 9, 10

Mid States Coal. for Progress v. Surface Transp. Bd.,

345 F.3d 520 (8th Cir. 2003) ................................. 10

Safford Uniform School District No. 1 v. Redding,

557 U.S. 364 (2009) ................................................. 1

Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017)

................................................................................. 5

Snyder v. Phelps, 562 U.S. 443 (2011)....................... 1

Triangle Improvement Council v. Ritchie, 402 U.S.

497 (1971) ................................................................ 3

Statutes

Va. Code § 10.1-1307(E) ............................................. 8

Other Authorities

Amy Mall, VA Pipeline Compressor Station

Threatens Nearby Community, Natural Resources

Defense

Council

(Sept.

5,

2018),

https://www.nrdc.org/experts/amy-mall/vapipeline-compressor-station-threatens-nearbycommunity............................................................. 10

iv

Christopher W. Tessum et al., Inequity in

consumption of goods and services adds to racialethnic disparities in air pollution exposure, 116

Proceedings of the Nat’l Acad. of Scis. of the

United States of Am. Vol. 13 (2019) ....................... 4

Clean Air Task Force & NAACP, Fumes Across the

Fence-Line (Nov. 2017) ............................... 3, 6, 7, 8

Commission for Racial Justice, United Church of

Christ, Toxic Wastes and Race in the United States

(1987) ................................................................... 3, 4

Eileen

Gauna,

LNG

Facility

Siting

and

Environmental (In)Justice:

Is it Time for a

National Siting Scheme?, 2 Envtl. & Energy Law

& Pol’y J. 85 (2007) ................................................. 5

Executive Order 12898, 59 Fed. Reg. 7629 (Feb. 11,

1994) ........................................................................ 5

Friends of Buckingham County, Compressor Station

Proposed

for

Buckingham

County,

http://www.friendsofbuckinghamva.org/friends/lear

ning-center/compressor/........................................ 10

Ihab Mikati et al., Disparities in Distribution of

Particular Matter Emission Sources by Race and

Poverty Status, 108 Am. J. Pub. Health Vol. 4

(2018) ................................................................... 4, 6

Learn

About

Environmental

Justice,

U.S.

Environmental

Protection

Agency,

https://www.epa.gov/environmentaljustice/learnabout-environmental-justice .................................. 2

v

Nicky Sheats, Achieving Emissions Reductions for

Environmental Justice Communities Through

Climate Change Mitigation Policy, 41 Wm. & Mary

Envtl. L. & Pol’y Rev. 377 (2017) ........................... 6

Sarah Wraight et al., Environmental Justice

Concerns and the Proposed Atlantic Coast Pipeline

Route in North Carolina 7, RTI Press (Mar. 2018),

https://www.rti.org/rti-press-publication/

environmental-justice-ACP .................................... 9

1

INTEREST OF AMICUS CURIAE1

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered

in Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute

specializes in providing legal representation without

charge to individuals whose civil liberties are

threatened or infringed and in educating the public

about constitutional and human rights issues.

Attorneys affiliated with the Institute have filed

amicus curiae briefs in this Court on numerous

occasions over the Institute’s 38-year history,

including Snyder v. Phelps, 562 U.S. 443 (2011)2, and

Safford Uniform School District No. 1 v. Redding,

557 U.S. 364 (2009). One of the purposes of the

Institute is to advance the preservation of the most

basic freedoms our nation affords its citizens – in

this case, the right of citizens to be free from

environmental discrimination based on race.

The parties have consented to the filing of this

amicus brief. No counsel for a party authored this

brief in whole or in part, and no party or counsel for

a party made a monetary contribution intended to

fund the preparation or submission of this brief. No

person or entity other than Amicus, its members, or

its counsel made a monetary contribution to this

brief’s preparation or submission.

1

See Snyder, 562 U.S. at 448 (citing Brief for The

Rutherford Institute as Amicus Curiae).

2

2

SUMMARY OF THE ARGUMENT

While this case presents an important question

of statutory construction, Amicus writes separately

to inform the Court of its concerns with the

disparate impact on people of color associated with

the construction and operation of the Atlantic Coast

Pipeline, as well as the continued systematic

discrimination faced by racial minorities in matters

of environmental justice. Accordingly, Amicus urges

the Court to consider these concerns, as well as the

concept of environmental justice generally, in this

and other cases and provide necessary guidance to

lower courts that routinely confront similar cases.

ARGUMENT

I.

Racial Minorities Have Historically Been,

And Continue To Be, Subject To

Environmental Racism

The U.S. Environmental Protection Agency

(“EPA”) defines environmental justice as “the fair

treatment and meaningful involvement of all people

regardless of race, color, national original, or income

with respect to the development, implementation,

and enforcement of environmental laws, regulations,

and policies.” Learn About Environmental Justice,

U.S.

Environmental

Protection

Agency,

https://www.epa.gov/environmentaljustice/learnabout-environmental-justice. According to the EPA,

no one group should “bear a disproportionate share

of the negative environmental consequences

resulting from the industrial, governmental and

commercial operations or policies.” Id.

3

Such laudable goals must be implemented

because

throughout

the

nation’s

history

environmental harms have disproportionately been

directed onto minority communities. The reason for

this is simple: “companies often site high polluting

facilities in or near communities of color, furthering

the unequal distribution of health impacts.” Clean

Air Task Force & NAACP, Fumes Across the FenceLine 4 (Nov. 2017) (hereinafter, “Fumes Across the

Fence-Line”).

Indeed, as Justice Douglas pointed

out in 1971, “[a]s often happens with interstate

highways, the route selected was through the poor

area of town, not through the area where the

politically

powerful

people

live.”

Triangle

Improvement Council v. Ritchie, 402 U.S. 497, 502

(1971) (Douglas, J., dissenting).

While such concerns have been present for

decades, it was not until 1987 that the “first national

report to comprehensively document the presence of

hazardous wastes in the racial and ethnic

communities throughout the United States . . .

examine[d] the relationship between the treatment,

storage and disposal of hazardous wastes and the

issue of race.”

Commission for Racial Justice,

United Church of Christ, Toxic Wastes and Race in

the United States ix (1987) (hereinafter, “Toxic

Wastes and Race”). In that report, the Commission

for Racial Justice concluded that “race is a major

factor related to the presence of hazardous wastes in

residential communities throughout the United

States.” Id. at x. In fact, the report found that

“[r]ace proved to be the most significant among

variables tested in association with the location of

commercial hazardous waste facilities” and that this

“represented a consistent national pattern.” Id. at

4

xiii.3 The Commission for Racial Justice concluded

that “[t]he possibility that these patterns resulted by

chance is virtually impossible, strongly suggesting

that some underlying factor or factors, which are

related to race, played a role in the location of

commercial hazardous waste facilities.” Id. at xv.

In 1994, in response to concerns about

discrimination in environmental justice, President

Clinton issued Executive Order 12898 (“Federal

These (and similar) findings cannot be explained

away simply by socio-economic status. See Toxic

Wastes and Race at xiii (“Although socio-economic

status appeared to play an important role in the

location of commercial hazardous waste facilities,

race still proved to be more significant.

This

remained true after the study controlled for

urbanization and regional differences.”). See also Ihab

Mikati et al., Disparities in Distribution of Particular

Matter Emission Sources by Race and Poverty

Status, 108 Am. J. Pub. Health Vol. 4, 483 (2018)

(“Although those living above the poverty line do

experience a lower burden than do those below it

within these urban areas, the disparities in

emissions are especially pronounced for Blacks—

reinforcing the overall finding that racial disparities

appear to be markedly higher than are povertybased disparities.”); Christopher W. Tessum et al.,

Inequity in consumption of goods and services adds

to racial-ethnic disparities in air pollution exposure,

116 Proceedings of the Nat’l Acad. of Scis. of the

United States of Am. Vol. 13, 6003 (2019) (“analyses

have found that when considering only differences in

locations of residence, exposure disparities by race

are much larger than disparities by income.”).

3

5

Actions to Address Environmental Justice in

Minority Populations and Low-Income Populations”),

which provides that “[t]o the greatest extent

practicable and permitted by law . . . each Federal

agency shall make achieving environmental justice

part of its mission by identifying and addressing, as

appropriate, disproportionately high and adverse

human health or environmental effects of its

programs, policies, and activities on minority

populations in the United States and its territories

and possessions, the District of Columbia, the

Commonwealth

of

Puerto

Rico,

and

the

Commonwealth of the Mariana Islands.” 59 Fed.

Reg. 7629, 7629 (Feb. 11, 1994).

In essence,

Executive Order 12898 requires all federal agencies

to take steps to avoid inequitable environmental

outcomes. See Sierra Club v. FERC, 867 F.3d 1357,

1368 (D.C. Cir. 2017) (“The principle of

environmental justice encourages agencies to

consider whether the projects they sanction will have

a ‘disproportionately high and adverse’ impact on

low-income

and

predominantly

minority

communities.”). Environmental justice is therefore

intended to account for the fact “that communities of

color and the poor are exposed to more pollution,

noxious land uses, and environmental risk than are

white, wealthier communities,” and “that their

cultural spaces and sacred sites are the first to be

sacrificed at the altar of runaway development.”

Eileen

Gauna,

LNG

Facility

Siting

and

Environmental (In)Justice: Is it Time for a National

Siting Scheme?, 2 Envtl. & Energy Law & Pol’y J.

85, 87 (2007).

Despite the signing of Executive Order 12898

more than twenty-five years ago, racial minorities

6

continue to suffer environmental injustice. In one

recent study, the Clean Air Task Force and NAACP

found that “[p]eople of color and low-income

communities are disproportionately affected by

exposure to air pollution” and that “African

Americans are exposed to 38 percent more polluted

air than Caucasian Americans, and they are 75

percent more likely to live in fence-line communities

than the average American.”

Fumes Across the

4

Fence-Line at 5-6. See also Nicky Sheats, Achieving

Emissions Reductions for Environmental Justice

Communities Through Climate Change Mitigation

Policy, 41 Wm. & Mary Envtl. L. & Pol’y Rev. 377,

382

(2017)

(“There

is

evidence

that

a

disproportionate number of environmental hazards,

polluting facilities, and other unwanted land uses

are located in communities of color and low-income

communities.”); Mikati, Disparities in Distribution of

Particular Matter Emission Sources by Race and

Poverty Status, 108 Am. J. Pub. Health Vol. 4, 480

(“an Environmental Protection Agency (EPA)

investigation in Flint, Michigan, found a direct link

between racial discrimination and the permitting of

a power station there, stating, ‘The preponderance of

evidence supports a finding of discriminatory

treatment of African Americans by [the Department

of Environmental Quality] in the public participation

process.’” (citations omitted and alteration in

original)). It is therefore no surprise that the NAACP

and Clean Air Task Force concluded that “[t]he life“Fence-line communities are communities that

are next to a company, industrial, or service facility

and are directly affected in some way by the facility’s

operation (e.g. noise, odor, traffic, and chemical

emissions).” Fumes Across the Fence-Line at 6.

4

7

threatening burdens placed on communities of color

near oil and gas facilities are the result of systemic

oppression perpetrated by the traditional energy

industry, which exposes communities to health,

economic, and social hazards.” Fumes Across the

Fence-Line at 3.

II.

The Atlantic Coast Pipeline Will Have a

Disparate Impact on Racial Minorities

Against

this

backdrop

of

continued

environmental injustice, in September 2015, the

owners of the Atlantic Coast Pipeline applied to the

Federal Energy Regulatory Commission to construct

a 604-mile natural gas pipeline from West Virginia

to North Carolina. App. 2a.5 The proposed route

crosses the Appalachian Trail and requires the

construction of several compressor stations in

various communities.

While this case focuses on whether the United

States Forest Service has statutory authority under

the Mineral Leasing Act to grant a gas pipeline

right-of-way across the Appalachian Trail, there can

be no dispute that the construction and operation of

the Atlantic Coast Pipeline will have environmental

effects on the communities through which it passes.

See Cowpasture River Pres. Ass’n v. Forest Serv., 911

F.3d 150, 183 (4th Cir. 2018) (“A thorough review of

the record leads to the necessary conclusion that the

Forest Service abdicated its responsibility to

preserve national forest resources. This conclusion

is particularly informed by the Forest Service’s

serious environmental concerns that were suddenly,

Citations to “App. _a” are to the appendix in No.

18-1584.

5

8

and mysteriously, assuaged in time to meet a private

pipeline company’s deadlines.”).

Amicus has serious concerns that the proposed

construction and operation of the Atlantic Coast

Pipeline is at odds with Executive Order 12898,

applicable state laws concerning environmental

impacts (such as Va. Code § 10.1-1307(E)), and the

spirit of environmental justice.6 In one case study,

for example, the Clean Air Task Force and NAACP

noted that the proposed route through North

Carolina “directly impacts a number of AfricanAmerican, and other vulnerable communities, in the

state. In seven of the eight counties along the

proposed route the African American population

ranges from 24.3 to 58.4 percent, compared to the

21.3 percent at the state level.” Fumes Across the

Fence-Line at 7. The constructors of the Atlantic

Coast Pipeline also plan to build a compressor

station in Northampton County, North Carolina.

The Clean Air Task Force and NAACP’s case study

found that “Northampton’s African American

population is 54.6 percent, and the median

household income is $31,453, nearly $15,000 below

the state average.

Almost 32 percent of

In Friends of Buckingham v. State Air Pollution

Control Board, No. 19-1152, 2020 WL 63295 (4th

Cir. Jan. 7, 2020), both the Virginia State Air

Pollution Control Board and the owners of the

Atlantic Coast Pipeline “acknowledge[d] that

Virginia law – including the Commonwealth Energy

Policy and factors outlined in § 10.1-1307(E)(3) –

require the Board to consider the potential for

disproportionate impacts to minority and low income

communities.’” Id. at *15 (citation omitted).

6

9

Northampton residents live in poverty, compared to

17.2 percent statewide.” Id.7

Likewise, the constructors of the Atlantic Coat

Pipeline propose to build a compressor station in

Union Hill, Virginia, an historic community with a

high population of African Americans whose

ancestors established the community in the

aftermath of the Civil War. In proposing this

location for the compressor station, however, the

U.S. Court of Appeals for the Fourth Circuit held

that the Virginia State Air Pollution Control Board

failed “to make any findings regarding the character

of the local population at Union Hill, in the face of

conflicting evidence” or “consider the potential

degree of injury to the local population independent

of NAAQS and state emission standards.” Friends of

Buckingham, 2020 WL 63295, at *14.8

Another study of the Atlantic Coast Pipeline’s

route in North Carolina concluded that “at the 95

percent confidence level, we can conclude that the

counties crossed by the proposed ACP route

collectively have a significantly higher percentage

minority population than the rest of the counties in

the state.” Sarah Wraight et al., Environmental

Justice Concerns and the Proposed Atlantic Coast

Pipeline Route in North Carolina 7, RTI Press (Mar.

2018),

https://www.rti.org/rti-press-publication/

environmental-justice-ACP.

7

“Because natural gas transported through the

Pipeline must remain pressurized, ACP sought to

construct three compressor stations in different

locations along the Pipeline – one in West Virginia,

8

10

The impacts on the Union Hill community

cannot be understated. Operation of the compression

station will require the use of four gas-fired turbines

that would “run 24/7 to produce horsepower

equivalent to two hundred NASCAR race cars.”

Friends of Buckingham County, Compressor Station

Proposed

for

Buckingham

County,

http://www.friendsofbuckinghamva.org/friends/learni

ng-center/compressor/.

One study reported as

follows: “Imagine 291-2005 (depending on the toxin

measured) diesel school buses running 24/7. That’s

the toxic result of this incessant, industrial activity.”

Id. Accordingly, toxic emissions in the area would

increase from less than 80 pounds per year to more

than one hundred tons annually. Amy Mall, VA

Pipeline Compressor Station Threatens Nearby

Community, Natural Resources Defense Council

(Sept. 5, 2018), https://www.nrdc.org/experts/amymall/va-pipeline-compressor-station-threatensnearby-community.

There appears to be little doubt that the Atlantic

Coast Pipeline is the latest in a long list of projects

that have ignored environmental justice.

See

Friends of Buckingham, 2020 WL63295, at *15 (“To

begin, Petitioners contend, ‘Despite access to a

wealth of information, the Board failed to make any

findings regarding the demographics of Union Hill

that would have allowed for a meaningful

assessment of the likelihood of disproportionate

harm.’ . . . We agree.”). See also Mid States Coal. for

Progress v. Surface Transp. Bd., 345 F.3d 520, 541

one in Virginia . . . and one in North Carolina.”

Friends of Buckingham, 2020 WL 63295, at *5.

11

(8th Cir. 2003) (“The purpose of an environmental

justice analysis is to determine whether a project

will have a disproportionately adverse effect on

minority

and

low

income

populations.”).

Accordingly, Amicus submits that because the

proposed construction and operation of the Atlantic

Coast Pipeline fails to take environmental justice

properly into consideration, it represents a continued

assault on the environmental justice rights of the

minority communities through which it passes.

CONCLUSION

For the foregoing reasons, and those described by

Respondents, the Court should uphold the decision

of the U.S. Court of Appeals for the Fourth Circuit.

Respectfully submitted,

John W. Whitehead

Counsel of Record

Douglas R. McKusick

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

(434) 978-3888

Counsel for Amicus Curiae