Petition for Writ of Certiorari — Atlantic Coast Pipeline, LLC, Petitioner v. Cowpasture River Preservation Association, et al.
Supreme Court briefJun 25, 2019
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No. ______
In the
Supreme Court of the United States
________________
ATLANTIC COAST PIPELINE, LLC,
v.
Petitioner,
COWPASTURE RIVER PRESERVATION ASSOCIATION;
HIGHLANDERS FOR RESPONSIBLE DEVELOPMENT;
SHENANDOAH VALLEY BATTLEFIELDS FOUNDATION;
SHENANDOAH VALLEY NETWORK; SIERRA CLUB;
VIRGINIA WILDERNESS COMMITTEE; WILD VIRGINIA,
________________
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
________________
PETITION FOR WRIT OF CERTIORARI
________________
PAUL D. CLEMENT
Counsel of Record
ERIN E. MURPHY
WILLIAM K. LANE III
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 389-5000
paul.clement@kirkland.com
Counsel for Petitioner
June 25, 2019
QUESTIONS PRESENTED
The Mineral Leasing Act (“MLA”) authorizes
federal agencies to grant pipeline rights-of-way over
federal lands within their jurisdiction. Exercising
that authority, the U.S. Forest Service granted
Atlantic Coast Pipeline a right-of-way to cross small
portions of the George Washington National Forest,
including a 0.1-mile stretch that is approximately
700 feet beneath, and without surface impacts to, the
Appalachian National Scenic Trail. While more than
50 pipelines presently cross under that footpath
pursuant to similar rights-of-way, the Fourth Circuit
concluded in the decision below that the Forest
Service—indeed, every federal agency—lacks the
power to grant rights-of-way to cross beneath the
Trail pursuant to the MLA, rendering the footpath a
2,200-mile barrier separating resource-rich areas to
its west from consumers to its east. The court
reached that result by deeming more than 1,000
miles of land traversed by the Trail under the control
of various federal, state and private entities instead
to be considered lands in the National Park System,
which, unlike other federal lands, are not subject to
rights-of-way under the MLA. In doing so, the court
not only rejected the federal government’s longsettled views, but has called into question dozens of
existing rights-of-way under the Trail and upset
petitioner’s massive investments in a pipeline
designed to get natural gas to Virginia and North
Carolina for the benefit of millions of people.
The question presented is:
Whether the Forest Service has the authority
under the MLA and National Trails System Act to
ii
grant rights-of-way through national forest lands
that the Appalachian Trail traverses.
iii
PARTIES TO THE PROCEEDING
Petitioner is Atlantic Coast Pipeline, LLC
(“Atlantic”). It was intervenor-respondent in the
court of appeals.
Cowpasture River Preservation Association,
Highlanders
for
Responsible
Development,
Shenandoah
Valley
Battlefields
Foundation,
Shenandoah Valley Network, Sierra Club, Virginia
Wilderness Committee, and Wild Virginia are
respondents before this Court and were petitioners in
the court of appeals.
The Forest Service, an agency of the U.S.
Department of the Agriculture; Kathleen Atkinson,
in her official capacity as Regional Forester of the
Eastern Region; and Ken Arney, in his official
capacity as Acting Regional Forester of the Southern
Region, are also parties to the proceeding.
iv
CORPORATE DISCLOSURE STATEMENT
Pursuant to this Court’s Rule 29.6, petitioner
states as follows:
Dominion Energy, Inc. owns more than 10% of
Atlantic Coast Pipeline, LLC’s stock. Duke Energy
ACP, LLC and Piedmont ACP Company, LLC,
subsidiaries of Duke Energy Corporation, also own
more than 10% of Atlantic Coast Pipeline, LLC’s
stock. No other company owns 10% or more of
Atlantic Coast Pipeline, LLC.
v
TABLE OF CONTENTS
QUESTIONS PRESENTED........................................ i
PARTIES TO THE PROCEEDING .......................... iii
CORPORATE DISCLOSURE STATEMENT ........... iv
TABLE OF AUTHORITIES ...................................... vi
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 3
JURISDICTION ......................................................... 3
STATUTORY PROVISION INVOLVED ................... 3
STATEMENT OF THE CASE ................................... 4
A. Statutory and Regulatory Background ....... 4
B. Factual Background ................................... 10
C. Proceedings Below ...................................... 11
REASONS FOR GRANTING THE PETITION....... 14
I.
The Decision Below Erroneously Converts
The Appalachian Trail Into A 2,200-Mile
Barrier To Critical Infrastructure .................... 17
A. The Trails Act Expressly Preserves the
Authority of Other Federal Agencies
Over Lands that a National Trail
Traverses .................................................... 17
B. The Decision Below Misconstrues Both
of the Statutes on Which the Court
Relied And Is Deeply Flawed ..................... 25
II. The Decision Below Will Have Dramatic
Consequences Far Beyond This Case ............... 31
CONCLUSION ......................................................... 36
vi
TABLE OF AUTHORITIES
Cases
Natl. Ass’n of Home Builders
v. Defs. of Wildlife,
551 U.S. 644 (2007)................................................ 35
Sierra Club v. U.S. Army Corps of Eng’rs,
909 F.3d 635 (4th Cir. 2018).................................. 14
Sierra Club v. U.S. Dept. of the Interior,
899 F.3d 260 (4th Cir. 2018)...................... 11, 13, 14
Sierra Club v. U.S. Forest Serv.,
828 F.3d 402 (6th Cir. 2016).................................. 34
Sierra Club, Inc. v. U.S. Forest Serv.,
739 Fed. Appx. 185 (4th Cir. 2018) ....................... 14
Sierra Club, Inc. v. U.S. Forest Serv.,
897 F.3d 582 (4th Cir. 2018).................................. 14
Statutes
5 U.S.C. §704 ............................................................ 35
16 U.S.C. §1241 et seq. ............................................... 3
16 U.S.C. §1241 .......................................................... 5
16 U.S.C. §1243 .................................................... 5, 30
16 U.S.C. §1244 ................................................ passim
16 U.S.C. §1246 ................................................ passim
16 U.S.C. §1277 .................................................... 8, 20
16 U.S.C. §1281 .................................................... 7, 20
16 U.S.C. §1604 ........................................................ 12
16 U.S.C. §1609 .......................................................... 4
16 U.S.C. §460a-2 ..................................................... 23
16 U.S.C. §460a-3 ......................................... 10, 14, 23
vii
16 U.S.C. §460a-6 ..................................................... 22
16 U.S.C. §460a-7 ..................................................... 22
16 U.S.C. §521 ................................................ 9, 17, 25
16 U.S.C. §529 ............................................................ 4
28 U.S.C. §1254 .......................................................... 3
30 U.S.C. §181 et seq. ................................................. 3
30 U.S.C. §185 .................................................. passim
42 U.S.C. §4321 et seq. ............................................. 11
42 U.S.C. §4370m ..................................................... 33
54 U.S.C. §100101 et seq. ......................................... 16
54 U.S.C. §100101 ...................................................... 5
54 U.S.C. §100102 .................................................... 25
54 U.S.C. §100501 .................................................... 26
54 U.S.C. §100801 .................................................... 27
54 U.S.C. §101102 .................................................... 28
54 U.S.C. §102901 .................................................... 28
54 U.S.C. §200306 .................................................... 28
36 Stat. 963 (1911)...................................................... 4
40 Stat. 1779 (1918).................................................... 4
Pub. L. No. 88-415, 78 Stat. 388 (1964) ................... 21
Pub. L. No. 89-72, 79 Stat. 213 (1965) ..................... 21
Pub. L. No. 89-446, 80 Stat. 199 (1966) ................... 20
Pub. L. No. 90-542, 82 Stat. 906 (1968) ..................... 7
Pub. L. No. 90-555, 82 Stat. 967 (1968) ................... 22
Pub. L. No. 114-94, 129 Stat. 1312 (2015) ............... 33
Regulations
81 Fed. Reg. 71,041 (Oct. 14, 2016) ......................... 32
viii
General Regulations for Areas Administered
by the National Park Service,
48 Fed. Reg. 30,252-01 (June 30, 1983) ............ 8, 24
Other Authorities
ACP, “Powering the Future, Driving Change
Through Clean Energy,”available at
https://atlanticcoastpipeline.com/resources/
docs/resources/acp-factbookversion2.pdf ........ 32, 33
Dep’t of the Interior, 710 Department
Manual (1977) .................................................... 8, 24
Director’s Order No. 45: National Trails
System (2013)..................................................... 8, 24
Dr. Seuss, The Lorax (1971) ..................................... 13
Exec. Order No. 5,867 (1932) ..................................... 4
Forest Service Manual 1531.32a (2004)
available at
www.fs.fed.us/im/directives/fsm/1500/1531.
2-1531.32e.rtf ..................................................... 9, 24
H.R. Rep. No. 90-1631 (1968) ................................... 22
H.R. Rep. No. 98-28 (1983) ....................................... 22
Nat’l Park Serv., Appalachian Trail
Management Plan (1981) .................................. 8, 24
Nat’l Park. Serv., Appalachian Trail
Management Plan (2008) .................................. 8, 24
Nationwide Sys. of Trails: Hearing on S. 827
Before the Comm. on Interior and Insular
Affairs, 90th Cong. 67 (1967) .................................. 6
Order Granting Mot. for Stay, Defenders of
Wildlife v. U.S. Dept. of the Int.,
No. 18-2090 (4th Cir. Dec. 7, 2018) ....................... 14
ix
PHMSA, “General Pipeline FAQs,” available
at https://www.phmsa.dot.gov/faqs/generalpipeline-faqs ........................................................... 33
S. Rep. No. 90-1233 (1968) ....................................... 22
S. Rep. No. 93-207 (1973) ......................................... 10
S. Rep. No. 98-1 (1983) ............................................. 22
PETITION FOR WRIT OF CERTIORARI
After an arduous three-year process, involving
extensive regulatory reviews and intensive due
diligence, petitioner secured the necessary approvals
and permits to construct a 600-mile pipeline that will
bring natural gas—and substantial tax revenues and
hundreds of millions of dollars in annual savings
along with it—from resource-rich West Virginia and
Pennsylvania to consumers in Virginia and North
Carolina. That approval process involved scrutiny by
more than a dozen state and federal agencies,
including the U.S. Forest Service, the Federal Energy
Regulatory Commission, and the National Park
Service. Each agency considered issues within its
own jurisdiction and approved the pipeline, both with
the knowledge that it would be constructed via a
horizontal drill approximately 700 feet under a 0.1mile segment of the Appalachian National Scenic
Trail on National Forest System land and with the
understanding that approval authority for that rightof-way rested with the Forest Service. The Forest
Service’s decision to grant that right-of-way was
hardly unprecedented; some 50-plus pipelines
already cross under the Trail, including on Forest
Service land, hidden from the view of those enjoying
the scenery on the footpath above.
Several environmental groups challenged the
pipeline on numerous grounds, including the novel
theory that the Forest Service lacked statutory
authority to grant a right-of-way because the entire
Trail and the land underneath is National Park
System land under the exclusive authority of the
National Park Service. Because the MLA does not
2
authorize any federal agency to grant pipeline rightsof-way across National Park System land, the import
of this theory was not that the wrong federal agency
had granted the right-of-way under the Trail, but
that no agency had that power.
While both the Forest Service and the Park
Service have long rejected that reading and had no
doubt that approval authority rests with the Forest
Service, the Fourth Circuit had other ideas. Indeed,
consistent with its handling of other challenges to
this pipeline, the Fourth Circuit endorsed nearly all
of the environmental groups’ challenges, including
their novel theory that the Forest Service cannot
grant a right-of-way through what the federal
government has always understood to be national
forest land. While the procedural defects perceived
by the court in the approval process can be fixed by
further administrative proceedings, the Fourth
Circuit’s decision deeming the Trail to be land in the
National Park Service has far more serious
consequences. The decision converts a Trail that is
primarily on land owned or operated by private,
state, and Forest Service entities into a 2,200-mile
Park-Service barrier separating critical natural
resources from consumers along the East Coast,
given that the federal government disclaims the
authority to grant rights-of-way for pipelines through
National Park System land without specific
Congressional authorization.
Accordingly, the
decision imperils not just the billions of dollars
invested in this pipeline, but future projects that will
cross under the Trail, the 50-some pipelines that
already cross under the Trail that require ongoing
regulatory approvals from other state and federal
3
agencies, and potentially other projects (including
electrical transmission lines, telecommunications
sites, municipal water facilities, roads, and grazing
areas) that cross national trails administered by the
National Park Service.
In short, the decision below is both profoundly
wrong and profoundly important. It misreads federal
statutes that make clear that the designation of a
trail does not transfer authority over the land being
crossed. It will chill investment, harm millions of
energy consumers, and unsettle long-held agency
views. This decision plainly warrants this Court’s
plenary review.
OPINIONS BELOW
The Fourth Circuit’s opinion is reported at 911
F.3d 150 and reproduced at App.1-66.
JURISDICTION
The Fourth Circuit issued its decision on
December 13, 2018, and denied timely petitions for
rehearing en banc filed by Petitioner and the federal
respondents. App.67-68. On May 16, 2019, the Chief
Justice extended the time for filing a petition to and
including June 25, 2019. This Court has jurisdiction
under 28 U.S.C. §1254(1).
STATUTORY PROVISION INVOLVED
The relevant provisions of the MLA, 30 U.S.C.
§181 et seq., and the National Trails System Act, 16
U.S.C. §1241 et seq., are reproduced at App.237-301.
4
STATEMENT OF THE CASE
A. Statutory and Regulatory Background
In 1911, Congress enacted the Weeks Act, which
authorized the Secretary of Agriculture to acquire
certain lands to be “permanently reserved, held, and
administered as national forest lands.” 16 U.S.C.
§521; 36 Stat. 963 (1911).
Pursuant to that
authority, the Secretary acquired what initially was
established as the Shenandoah National Forest, see
40 Stat. 1779 (1918), and later renamed the George
Washington National Forest, see Exec. Order No.
5,867 (1932).
Today, the George Washington
National Forest spans roughly one million acres of
Virginia and West Virginia.
As part of the National Forest System, the
George Washington National Forest is administered
by the Forest Service. 16 U.S.C. §1609. Congress
has charged the Forest Service with ensuring the
orderly development and use of the natural resources
that national forests contain. The Forest Service
(through the Secretary of Agriculture) “is authorized
and directed to develop and administer the
renewable surface resources of the national forests
for multiple use and sustained yield of the several
products and services obtained therefrom.” Id. §529.
That mandate stands in contrast to the charge of the
Park Service with respect to lands in the National
Park System. While the National Forest System and
the National Park System were both established
around the turn of the twentieth century, only land
in the latter was set aside principally for
conservation. Accordingly, the National Park Service
is charged with “conserv[ing] the scenery, natural
5
and historic objects, and wild life” of national parks
and “provid[ing] for the[ir] enjoyment ... in such
manner and by such means as will leave them
unimpaired for the enjoyment of future generations.”
54 U.S.C. §100101.
In 1968, Congress enacted the National Trails
System Act, an act designed “to promote the
preservation of, public access to, travel within, and
enjoyment and appreciation of the open-air, outdoor
areas and historic resources of the Nation.” 16
U.S.C. §1241(a). The Trails Act contemplates a
variety of different types of national trails, some
established administratively, id. §1243, and others
by Congress itself, id. §1244.
Two trails were
established contemporaneously with the Trails Act:
the Appalachian National Scenic Trail and the
Pacific Crest National Scenic Trail. See id.
National trails can (and do) traverse all manner
of lands—lands separately owned and administered
by the Forest Service, the Park Service, other federal
agencies, states and even private parties.
The
Appalachian Trail is a case in point. The Trail,
which was completed in 1937, is a 2,200-mile
footpath stretching from Maine to Georgia. JA1778. 1
Along the way, it winds through 14 states and
crosses hundreds of miles of private land; 60 state
game lands, forests, or parks; one National Wildlife
Refuge; six National Parks; and eight National
Forests, including the George Washington National
Forest. JA1778; see also Nationwide Sys. of Trails:
1 “JA” refers to the Corrected Deferred Joint Appendix filed
with the Fourth Circuit.
6
Hearing on S. 827 Before the Comm. on Interior and
Insular Affairs, 90th Cong. 67 (1967) (around 800
trail miles privately owned when trail was
established). Since its inception, then, the Trail has
encompassed land administered by a wide variety of
federal, state, and private interests. JA3186.
Cognizant of that dynamic, Congress chose not to
convert the land that national trails traverse into
Forest System or Park System land, or to put
national trails under the exclusive jurisdiction of any
one agency. Instead, Congress decided to give either
the Interior Secretary or the Agriculture Secretary,
on a case-by-case basis, principal responsibility for
administering each trail. The Secretary with that
responsibility was then authorized to obtain “rightsof-way” for the portions of the trail “across Federal
lands under the jurisdiction of another Federal
agency,” pursuant to an agreement with that agency.
16 U.S.C. §1246(a)(2). But that right-of-way for the
trail left the ownership of and jurisdiction over the
underlying lands otherwise unaffected, and left
administration of those lands to the agency that
administered them before the trail designation.
Accordingly, while Congress has identified which
Secretary should administer each trail, the Trails Act
expressly also provides: “Nothing contained in this
chapter shall be deemed to transfer among Federal
agencies
any
management
responsibilities
established under any other law for federally
administered lands which are components of the
National Trails System.” Id. §1246(a)(1)(A).
Underscoring the point, Congress ordered
whichever Secretary it charged with administering
7
the trail to do so in cooperation and conjunction with
any agencies that administer the lands that the trail
traverses.
For example, the Secretary must
“establish an advisory council” that includes “the
head of each Federal department … administering
lands through which the trail route passes.” Id.
§1244(d).
And the Secretary may not issue
regulations governing the trail without the
“concurrence of the heads of any other Federal
agencies administering lands through which [the]
trail passes.” Id. §1246(i). Congress has reinforced
that cooperative approach when designating specific
trails as well. For instance, the statutory provision
establishing the Appalachian Trail provides that it
“shall be administered primarily as a footpath by the
Secretary of the Interior, in consultation with the
Secretary of Agriculture.” Id. §1244(a)(1). The Trails
Act thus preserves, rather than overrides, the
division of land management that preceded it.
That approach stands in stark contrast to
Congress’ approach in other statutes. Notably, on
the same day that it enacted the Trails Act, Congress
enacted the Wild and Scenic Rivers Act (“Rivers
Act”), Pub. L. No. 90-542, §6, 82 Stat. 906, 912
(1968). Unlike the Trails Act, which makes clear
that it was not effectuating any transfers of
jurisdiction over underlying lands, the Rivers Act
expressly provides that “[a]ny component of the
national wild and scenic rivers system that is
administered by the Secretary of the Interior through
the National Park Service shall become a part of the
national park system.” 16 U.S.C. §1281(c). The
Rivers Act also provides a mechanism through which
agencies with jurisdiction over federal land that is
8
designated part of the National Wild and Scenic
Rivers System may transfer their jurisdiction to the
Secretary of Agriculture, at which point the land will
“become national forest land[].”
Id. §1277(e).
Congress was thus well aware of how to transfer
jurisdiction over federal land: it chose to do so in the
Rivers Act, but not in the contemporaneous enacted
Trails Act.
Today, some national trails are administered by
the Bureau of Land Management, some by the
National Park Service, and some by the Forest
Service. As these agencies have repeatedly made
clear, including in the specific context of the
Appalachian Trail, each agency’s administration of a
trail does not override the administrative powers and
responsibilities of other agencies over the land that
the trail traverses.
For example, the Park Service, to which the
Secretary of the Interior has designated his statutory
responsibility to administer the Appalachian Trail,
has repeatedly explained: “While responsibility for
overall Trail administration lies with the National
Park Service, land-managing agencies retain their
authority on lands under their jurisdiction.” Nat’l
Park Serv., Appalachian Trail Management Plan 1213 (1981), Nat’l Park. Serv., Appalachian Trail
Management Plan III-1 (2008); General Regulations
for Areas Administered by the National Park Service,
48 Fed. Reg. 30,252-01, 30,253 (June 30, 1983);
Director’s Order No. 45: National Trails System, 6-8
(2013); Dep’t of the Interior, 710 Department Manual
1.4(C)(4) (1977). The Forest Service likewise has
confirmed that it retains its duty and power to
9
administer and manage the Forest System land over
which the Trail passes. See, e.g., Forest Service
Manual 1531.32a, ¶9 (2004), available at
https://bit.ly/2xcwcr9.
Accordingly, while the
Appalachian Trail passes through (among others) the
George Washington National Forest, those parts of
the forest that the trail traverses remain, as they
have always been, “permanently reserved, held, and
administered as national forest lands.” 16 U.S.C.
§521.
This division of authority over the underlying
lands traversed by the Trail has important
implications for which agency, or whether any
agency, may grant rights-of-way for pipelines to cross
under the Trail. The MLA generally authorizes “the
Secretary of the Interior or appropriate agency head”
to grant “[r]ights-of-way through any Federal
lands … for pipeline purposes for the transportation
of oil, natural gas, synthetic liquid or gaseous fuels,
or any refined product produced therefrom.” 30
U.S.C. §185(a). Thus, as a general matter, federal
agencies may grant rights-of-way for pipelines to
cross the federal lands they administer.
For
example, the Forest Service generally may grant
rights-of-way across national forest lands, and the
Secretary of Interior may grant rights-of-way across
BLM lands. There is, however, an exception for
National Park System lands, as the MLA defines
“Federal lands” as “all lands owned by the United
States except lands in the National Park System,
lands held in trust for an Indian or Indian tribe, and
lands on the Outer Continental Shelf.” Id. §185(b).
Congress can specifically authorize the National
Park Service to grant rights-of-ways under Park
10
Service lands. It has done so, for example, with
respect to the Blue Ridge Parkway, which is located
on Park Service land and largely parallels the
Appalachian Trail. 16 U.S.C. §460a-3; see S. Rep. No.
93-207 (1973).
Thus, under the MLA, the Forest Service
generally has the authority to grant rights-of-way for
pipelines over Forest Service land. And unless the
designation of the Appalachian Trail converted
Forest Service lands into Park System lands, the
Forest Service retains that authority with respect to
Forest Service lands traversed by the Trail. The
Forest Service has long taken the position that it
does indeed have that authority and has granted
such a right-of-way here.
B. Factual Background
In 2014, Atlantic proposed to build a 600-mile
pipeline to carry natural gas from Harrison County,
West Virginia to the eastern portions of Virginia and
North Carolina. App.2-3. The pipeline, as designed,
will be capable of transporting up to 1.5 billion cubic
feet of natural gas per day and, according to Federal
Energy Regulatory Commission (“FERC”), will
develop “gas infrastructure that will serve to ensure
future domestic energy supplies and enhance the
pipeline grid by connecting sources of natural gas to
markets.” JA690, 714. The pipeline’s planned route
crosses five noncontiguous miles of the Monongahela
National Forest and 16 noncontiguous miles of the
George Washington National Forest. JA11, 3571.
Within the George Washington National Forest,
approximately 700 feet beneath the surface, the
pipeline would cross a 0.1-mile segment of the Trail.
11
Consistent with the longstanding understanding
and universal practice of the federal government,
Atlantic sought rights-of-way from the Forest Service
to cross portions of the Monongahela National Forest
and the George Washington National Forest,
including the 0.1-mile segment traversed by the Trail
in the latter. After carefully considering all relevant
factors, and participating as a cooperating agency in
an environmental impact statement prepared by the
FERC pursuant to the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §4321 et seq., the
Forest Service issued Atlantic a special use permit
granting the requested rights-of-way. App.13; JA9,
14-15, 3570.
Needless to say, the granting of a right-of-way
over any federal land is just one of literally dozens of
regulatory approvals necessary to authorize the
massive undertaking involved in the construction
and operation of a significant pipeline. All told,
Atlantic and its affiliates obtained 33 separate
regulatory approvals from more than a dozen federal
and state agencies, as well as numerous local
approvals.
C. Proceedings Below
Throughout its efforts to secure the necessary
approvals to build the pipeline, Atlantic has faced
opposition and litigation by environment groups at
every turn. See, e.g., Sierra Club v. U.S. Dept. of the
Interior, 899 F.3d 260 (4th Cir. 2018). This approval
proved no exception. Almost as soon as the Forest
Service granted Atlantic the rights-of-way, a
contingent of environmental groups (“respondents”)
12
petitioned the Fourth Circuit to vacate the agency’s
decision.
Respondents claimed that the Forest Service’s
decision-making process was deficient in numerous
respects under NEPA, the National Forest
Management Act (“NFMA”), 16 U.S.C. §1604, and the
Administrative Procedure Act (“APA”). Not content
with raising procedural roadblocks, respondents also
asserted a novel substantive barrier to the pipeline:
In their view, the MLA prohibits any agency from
granting a right-of-way across the Appalachian Trail
because the entirety of the Trail—including those
parts that cross national forests—is actually part of
the National Park System.
The Fourth Circuit granted the petition in whole
and faulted the agency in multiple respects. The
court variously criticized the Forest Service for a
supposed change of “tenor” during its administrative
review, and for modifying its views about how much
information it would need to reach a decision.
App.11. For example, the court objected that the
Forest Service initially asked Atlantic to present ten
studies about landslide risks, but ultimately
approved the pipeline after reviewing two of these
studies (though still requiring review and approval of
the other eight as a precondition to construction).
App.46-49. The court similarly faulted the agency for
modifying its views on how much pre-decisional
information it would need to assess erosion and
water degradation risks. App.49-57. Notably, the
court did not hold that the Forest Service’s initial
demands were statutorily mandated; it merely
faulted the agency for inadequately explaining its
13
“shift” in position during the approval process. In a
rhetorical flourish, the court ultimately accused the
Forest Service of having “abdicated its responsibility”
to “‘speak for the trees, for the trees have no
tongues.’” App.66 (quoting Dr. Seuss, The Lorax
(1971)).
Like respondents, the court was not content to
identify perceived procedural faults that could be
fixed in further agency proceedings. It went on to
impose the substantive barrier that respondents
sought. According to the Fourth Circuit, by giving
the Secretary of the Interior authority to administer
the Appalachian Trail, the Trails Act converted all of
the Forest System lands underlying the Trail into
National Park System lands across which an agency
may not grant a right-of-way under the MLA.
App.57-61. In reaching that conclusion, the court not
only effected a massive unauthorized land transfer
from the Forest Service to the Park Service—over the
express objections of both agencies—but also
imperiled the Eastern Seaboard’s ability to access
inland oil and gas sources.
The decision below does not stand alone, but is
part of a pattern of Fourth Circuit decisions
frustrating this pipeline and others like it. As noted,
this pipeline required a host of federal approvals, and
environmental groups have brought successful
petitions challenging many of those approvals before
this same panel. For example, last year, the same
panel ruled against the pipeline on multiple
occasions. See Sierra Club, 899 F.3d 260. The first
deemed the U.S. Fish and Wildlife Service’s issuance
of an Incidental Take Statement to be arbitrary and
14
capricious. See id. at 266. Even after the agency
addressed the perceived deficiencies, the Fourth
Circuit stayed the agency’s action without
explanation. See Order Granting Mot. for Stay,
Defenders of Wildlife v. U.S. Dept. of the Int., No. 182090 (4th Cir. Dec. 7, 2018). A second ruling found
the Park Service’s grant of a right-of-way underneath
the Blue Ridge Parkway to be arbitrary and
capricious.
Although the Blue Ridge Parkway
Organic Act grants the Park Service the power to
grant rights-of-way to cross the Parkway, 16 U.S.C.
§460a-3, the panel nonetheless faulted the Park
Service for insufficiently “explain[ing] how the
pipeline crossing is not inconsistent with the
purposes of the Parkway and the overall National
Park System.” Sierra Club, 899 F.3d at 266. As a
result, the court vacated the decisions of both
agencies. See id. at 295. 2
REASONS FOR GRANTING THE PETITION
The decision below gets an exceptionally
important question exceptionally wrong. According
to the Fourth Circuit, the entire Appalachian Trail is
land in the National Park System and thus no agency
may authorize a pipeline to cross it under the MLA.
Never mind that neither federal agency involved has
ever taken that view, as evidenced by the
approximately 56 pipelines that currently cross the
Trail at various points. Never mind that the decision
2 The pending Mountain Valley Pipeline project has suffered a
similar fate. See Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d
582, 595-96 (4th Cir. 2018), reh’g granted in part, 739 Fed.
Appx. 185 (4th Cir. 2018). Sierra Club v. U.S. Army Corps of
Eng’rs, 909 F.3d 635, 639 (4th Cir. 2018).
15
below would convert the Trail, which primarily
traverses private, state, and federal land not
managed by the National Park Service, into a barrier
separating natural resources west of the Trail from
population centers to the east. And never mind that
the decision threatens to strand billions of dollars in
investments made in good-faith reliance on dozens of
regulatory approvals. None of that mattered to the
Fourth Circuit, which rejected long settled agency
interpretations of federal statutes to erect the latest
and greatest of judicial obstacles to a project that has
been approved—and now repeatedly so—by more
than a dozen expert agencies. That decision should
not stand as the last word on this critically important
issue.
The MLA allows federal agencies to grant
pipeline rights-of-way to cross any federal lands
except (as relevant here) “lands in the National Park
System.” 30 U.S.C. §185(b)(1). Neither the Trails
Act nor any other statute declares the entirety of the
Appalachian Trail to be National Park System land.
And for good reason, as the Appalachian Trail (like
many national trails) is not composed exclusively of
federal land, let alone Park System land. The Trail
traverses hundreds of miles of land belonging to
private parties and public agencies, both state and
federal. Accordingly, while the Trails Act makes the
Interior Secretary responsible for administering the
footpath, it does not transfer authority or ownership
of the lands that the Trail traverses. Instead, it
sensibly preserves the authority of other state and
federal agencies over the land that the Trail
traverses. Indeed, the Trails Act preserves the role
of other federal agencies in no uncertain terms,
16
emphatically providing: “Nothing contained in this
chapter shall be deemed to transfer among Federal
agencies
any
management
responsibilities
established under any other law for federally
administered lands which are components of the
National Trails System.” 16 U.S.C. §1246(a)(1)(A).
The Fourth Circuit nonetheless treated the
National Park Service’s responsibility to administer
the footpath as the equivalent of deeming the entire
Trail “lands in the National Park System,” with the
consequence that the Forest Service has lost its longstanding authority to grant rights-of-way over Forest
Service land traversed by the Trail. That holding not
only flies in the face of the Trails Act and long-held
agency understandings, but finds no support in the
Park Service Act, 54 U.S.C. §100101 et seq., which
respects and preserves the distinction between Park
System land and national trails.
The decision below is not just profoundly wrong,
but profoundly consequential. In this case alone, it
has stymied a pipeline that is projected to generate
billions of dollars in economic activity, hundreds of
millions in consumer savings, and millions in tax
revenue. And that is just one pipeline; left standing,
the decision below will impede pipelines from
reaching eastern Virginia and North Carolina, and
undoubtedly will chill investments in pipelines that
cross any national trail that is nominally managed by
the National Park Service. The decision also casts
doubt on the future of the 50-some pipelines that
already cross the Appalachian Trail—not to mention
multiple other rights-of-way that the Forest Service
has granted on Forest Service property traversed by
17
the Trail. In short, the stakes could hardly be
higher.
This exceptionally important question
readily warrants this Court’s review.
I. The Decision Below Erroneously Converts
The Appalachian Trail Into A 2,200-Mile
Barrier To Critical Infrastructure.
The Appalachian Trail has never been
understood to constitute an impediment to pipeline
construction. Indeed, approximately 56 pipelines
currently cross the Trail at various points. The
Fourth Circuit’s radical transformation of the Trail
into a barrier separating energy sources from energy
consumers is at fundamental odds with the very
statutes that the court purported to interpret.
A. The Trails Act Expressly Preserves the
Authority of Other Federal Agencies Over
Lands that a National Trail Traverses.
1. The MLA authorizes “the Secretary of the
Interior or appropriate agency head” to grant
“[r]ights-of-way through any Federal lands … for
pipeline purposes for the transportation of oil,
natural gas, synthetic liquid or gaseous fuels, or any
refined product produced therefrom.” 30 U.S.C.
§185(a). The “appropriate agency head” is the head
of whatever agency has jurisdiction over the federal
lands at issue. Id. §185(b). Here, unless the Trails
Act effectuated a heretofore-unnoticed massive land
transfer, that agency is the Forest Service. The 0.1mile segment of the Appalachian Trail at issue
traverses part of the George Washington National
Forest, all of which Congress declared more than a
century ago in the Weeks Act “shall be permanently
reserved, held, and administered as national forest
18
lands.”
16 U.S.C. §521. As the agency with
jurisdiction over federal lands in national forests, the
head of the Forest Service is clearly the “appropriate
agency head” to grant a right-of-way over national
forest land.
The fact that the Appalachian Trail is part of a
national trail administered by the Park Service does
not change that analysis. Indeed, far from repealing
the Weeks Act and converting “national forest lands”
into National Park System lands, the Trails Act goes
out of its way to make clear that it does not effect
transfers of lands or jurisdiction over them. The Act
provides that the “Appalachian Trail shall be
administered primarily as a footpath by the
Secretary of the Interior, in consultation with the
Secretary of Agriculture,” id. §1244(a)(1), and
empowers the Secretary of the Interior to obtain
“rights-of-way” for the Trail over “Federal lands
under the jurisdiction of another Federal agenc[ies],”
id. §1246(a)(2), without divesting those other
agencies of jurisdiction. Indeed, the Act expressly
provides: “Nothing contained in this chapter shall be
deemed to transfer among Federal agencies any
management responsibilities established under any
other law for federally administered lands which are
components of the National Trails System.” Id.
§1246(a)(1)(A).
Accordingly, the Forest Service’s
authority to grant pipeline rights-of-way across
Forest Service lands under the MLA is undisturbed
either by the Trails Act generally or by the
contemporaneous designation of the Appalachian
Trail in particular.
19
That conclusion is reinforced by the many
provisions of the Trails Act confirming that it
preserves the powers of federal agencies that
administer lands traversed by a trail or footpath. For
instance, as noted, the Act does not transfer plenary
jurisdiction over lands traversed by a trail, but
envisions that the agency with administrative
authority over a trail will obtain a right-of-way over
“Federal lands under the jurisdiction of other Federal
agencies,” and to endeavor to obtain comparable
rights-of-way over state and private lands.
Moreover, the Secretary charged with administering
the trail must “establish an advisory council” that
includes
“the
head
of
each
Federal
department … administering lands through which
the trail route passes.” Id. §1244(d). And that
Secretary may not issue regulations governing the
trail without the “concurrence of the heads of any
other Federal agencies administering lands through
which [the] trail passes.” Id. §1246(i); see also, e.g.,
id. §1244(b) (Secretary shall study “feasibility and
desirability of designating other trails … in
consultation with the heads of other Federal agencies
administering lands through which such additional
proposed trails would pass”); id. §1244(e) (Secretary
“shall, after full consultation with affected Federal
land managing agencies … submit … a
comprehensive plan for the acquisition, management,
development, and use of the trail”).
These provisions would make little sense if the
designation of administration of the footpath
definitively transferred the federal lands underlying
that trail to the Park System. Instead, they reinforce
the
understanding—explicitly
confirmed
by
20
Congress—that the Trails Act transfers only
administrative authority over the trail (and only to a
limited
degree
that
envisions
continuing
cooperation), with jurisdiction and ownership over
the underlying lands remaining with “other Federal
agencies.” Id. §1246(i). It does not “transfer among
Federal agencies any management responsibilities
established under any other law for federally
administered lands which are components of the
National Trails System.” Id. §1246(a)(1)(A).
That conscious decision stands in stark contrast
to the approach Congress took in other statutes.
Most notably, the Rivers Act—enacted the same day
as the Trails Act—does provide for the transfer of all
jurisdiction over federal lands traversed by a
designated river, but it does not make that transfer
automatic, and it provides for that transfer explicitly.
Specifically, the Rivers Act authorizes “[t]he head of
any Federal department or agency having
administrative jurisdiction over any lands” within
the National Wild and Scenic Rivers System “to
transfer to the appropriate secretary jurisdiction over
such lands.” Id. §1277(e). The statute requires that
lands transferred to the Secretary of Agriculture
pursuant to this provision “shall upon such
acquisition or transfer become national forest lands.”
Id. And it makes explicit that “[a]ny component of
the national wild and scenic rivers system that is
administered by the Secretary of the Interior through
the National Park Service shall become a part of the
national park system.” Id. §1281(c).
Congress has enacted numerous other statutes,
both before and after the Trails Act, that explicitly
21
transfer land to a federal agency or give agencies the
power to do so. See, e.g., Pub. L. No. 89-446, 80 Stat.
199 (1966) (authorizing “the Secretary of the Interior
to transfer certain lands in the State of Colorado to
the Department of Agriculture for recreation
development, and for other purposes”); Pub. L. No.
89-72, §7, 79 Stat. 213, 217 (1965) (agency heads
“authorized to transfer any such lands to the
jurisdiction of the Secretary of the Interior”); Pub. L.
No. 88-415, 78 Stat. 388 (1964) (authorizing “the
Secretary of the Interior to accept the transfer of
certain national forest lands in Cocke County,
Tennessee, for purposes of the Foothills Parkway,
and for other purposes”).
As these and other statutes confirm, the notion
that Congress intended something comparable to
happen automatically in the Trails Act in the absence
of any express language and despite an express
saving clause to the contrary blinks reality. When
Congress wants to transfer jurisdiction over lands to
the agency charged with administering something
that traverses them, Congress says exactly that. Not
only did Congress decline to say that in the Trails
Act; the Trails Act says exactly the opposite.
In sum, Congress charged the Secretary of the
Interior to administer the trail “primarily as a
footpath.” 16 U.S.C §1244(a)(1). That responsibility
did not supplant the Secretary of Agriculture’s
continuing jurisdiction over the Forest Service lands
that are crossed by the footpath.
2. The legislative history of the Trails Act
confirms the import of its text. The Congress that
enacted the Trails Act (and simultaneously
22
designated the Appalachian Trail a national trail and
enacted the very different language of the Rivers Act)
was specifically assured that granting one Secretary
responsibility to administer a trail as a footpath
would not displace the authority of other federal
agencies to “administer” lands over which the trail
traversed: “When any portion of [a trail] is within an
area
administered
by
another
Federal
agency, … such portion will be administered as the
appropriate Secretary and the head of that agency
determine.” H.R. Rep. No. 90-1631, at 16 (1968).
The Trails Act committee reports likewise made clear
that “[w]hen any portion” of a trail “is within an area
administered by another federal agency … such
portion will be administered as the … Secretary and
the head of that agency determine.” Id.; S. Rep. No.
90-1233, at 15 (1968); see also H.R. Rep. No. 98-28, at
5 (1983); S. Rep. No. 98-1, at 6 (1983).
That expectation is evident from Congress’
actions in the immediate wake of the enactment of
the Trails Act. For example, the week after it
enacted the Trails Act and designated the
Appalachian Trail a national trail, Congress directed
that the famed Blue Ridge Parkway be extended. See
Pub. L. No. 90-555, §1, 82 Stat. 967, 967 (1968),
codified at 16 U.S.C. §460a-6. To accomplish this
task, Congress authorized the Secretary of the
Interior to “relocate and reconstruct portions of the
Appalachian Trail, including trail shelters, that may
be disturbed by the parkway extension … on nonFederal lands … and [] upon national forest lands
with the approval of the Secretary of Agriculture.”
16 U.S.C. §460a-7(3). Clearly Congress understood
that Forest Service lands traversed by the Trail
23
retained their character as “national forest lands.”
Id.
Congress’ broader treatment of the Blue Ridge
Parkway underscores the implausibility of the notion
that Congress meant to foreclose pipeline rights-ofway under the Appalachian Trail. When it came to
the Blue Ridge Parkway, Congress expressly said
that the Parkway and the federal lands it traverses
shall be administered and maintained as National
Park System lands. See 16 U.S.C. §460a-2. That
further confirms that Congress knows how to make
clear its intention to treat a long stretch of federal
lands as National Park System land. But equally
important, Congress displayed its view that the 469mile-long Parkway should not be a 469-mile-long
barrier to rights-of-way, expressly granting the Park
Service authority to grant rights-of-way that pass
under the Parkway. Id. §460a-3.
Given that the Parkway and the Appalachian
Trail parallel each other for the entirety of the
Parkway’s length, it is inconceivable that Congress
intended rights-of-way to be available to cross the
former but not the latter.
Indeed, given the
proximity of the two, congressionally authorized
rights-of-way for the Parkway would be practically
worthless if the nearby Trail were a barrier. In the
case of the ACP, the pipeline would cross under both
the Parkway and the Trail in the same bore. The
obvious answer is that Congress never intended the
Trails Act to vitiate the Forest Service’s power to
grant rights-of-way across those parts of national
trails that are within national forests.
24
3. Consistent with the text, structure, and
history of the statute, both the Department of the
Interior and the Department of Agriculture have
consistently taken the position that the Trails Act
does not deprive federal agencies of their preexisting
jurisdiction over federal lands underlying national
trails. Indeed, each department has long taken that
position as to the Appalachian Trail itself.
The Forest Service Manual explains that
“significant portions of the Appalachian National
Scenic Trail traverse lands under the separate
administrative jurisdictions of the National Park
Service and the Forest Service, as well as privately
owned lands within the exterior boundaries of units
administered by those Services.” Forest Service
Manual 1531.32a, at 9 (2004) (containing 1970
“Memorandum
of
Agreement
Concerning
Appalachian National Scenic Trail” with National
Park Service). The Park Service likewise has stated
time and again that “[w]hile responsibility for overall
Trail administration lies with the National Park
Service, land-managing agencies retain their
authority on lands under their jurisdiction.” Nat’l
Park Serv., Appalachian Trail Management Plan 1213; see also, e.g., Nat’l Park. Serv., Appalachian Trail
Management Plan III-1 (“[T]he Appalachian
Trail … crosses an extensive land base administered
by many other federal and state agencies” with each
entity managing its segment “in accordance with its
own administrative jurisdictional responsibilities.”).
Indeed,
the
Park
Service
has
stated
unambiguously that the Appalachian Trail is “‘multijurisdictional,’” with only select “segments of the trail
25
under the primary land management responsibility
of the National Park Service.” 48 Fed. Reg. at
30,253; see Director’s Order No. 45, at 6-8; 710
Department Manual 1.4(C)(4).
And the Forest
Service has exercised its jurisdiction over parts of the
Trail that pass through national forests to grant
rights-of-ways pursuant to the MLA. As those and
other agency statements and actions confirm,
Congress enacted the Trails Act to encourage the
creation of national trails, not to reallocate primary
authority over long-established federal lands—let
alone to convert lands “permanently reserved, held,
and administered as national forest lands,” 16 U.S.C.
§521, into National Park System lands.
B. The Decision Below Misconstrues Both of
the Statutes on Which the Court Relied
And Is Deeply Flawed.
Notwithstanding the wealth of textual,
structural, and historical evidence supporting the
agencies’ longstanding understanding, the Fourth
Circuit adopted the novel conclusion that the Trails
Act ousts the Forest Service (and all other federal
agencies) of the power to grant pipeline rights-of-way
under the Trail.
That conclusion cannot be
reconciled with the text, structure, or history of the
relevant statutes.
1. As noted, the MLA defines the “Federal lands”
as to which an agency may grant a right-of-way as
“all lands owned by the United States except lands in
the National Park System....” 30 U.S.C. §185(b)(1).
Although the MLA does not define “lands in the
National Park System,” the Park Service Act
provides a definition of “the National Park System.”
26
Under that statute, “the National Park System” is
defined as “the areas of land and water described in
section 100501.” 54 U.S.C. §100102. Section 100501,
in turn, states that “[t]he System shall include any
area of land and water administered by the Secretary
[of the Interior], acting through the Director, for
park, monument, historic, parkway, recreational, or
other purposes.” Id. §100501.
According to the Fourth Circuit, because the
Park Service administers the Appalachian Trail as a
park unit, the entire Trail constitutes Park Service
land exempted from the MLA’s general authorization
for federal agencies to grant rights-of-way. Indeed,
the Fourth Circuit viewed the Trail’s status as
National Park System land as largely uncontested,
pointing to a portion of FERC’s final Environmental
Impact Statement (“EIS”) authorizing the pipeline
that noted that the Park Service had informed FERC
that “‘the entire [ANST] corridor [is] part of the
ANST park unit’ and a ‘unit’ of the National Park
System.” App.57. But the Fourth Circuit conflated
the question here: whether the footpath is a “park
unit” with the relevant question of whether Forest
Service lands underlying that footpath were
transformed into National Park System lands. In the
process, the Fourth Circuit ignored the position of the
Interior Department, the Agriculture Department,
and the rest of the federal government that the Trails
Act does not convert Forest Service land underlying
the Trail into “lands in the National Park System” for
purposes of the MLA.
The Fourth Circuit’s reasoning fails, first and
foremost, because it is flatly inconsistent with the
27
Trails Act. As explained, see supra Part I.A, the
Trails Act draws a clear distinction between
administration of a trail and administration of the
lands that a trail traverses, and it expressly declares
that it “shall [not] be deemed to transfer among
Federal agencies any management responsibilities
established under any other law for federally
administered lands which are components of the
National Trails System.” 16 U.S.C. §1246(a)(1)(A).
The Trails Act likewise authorizes the agency
administering the trail to obtain “rights-of-way
across Federal lands under the jurisdiction of
another
Federal
agency”
without
obtaining
jurisdiction or ownership of the underlying lands. Id.
§1246(a)(2). Thus, no matter how the Park Service
classifies the Trail for administrative purposes, the
Forest Service lands traversed by the Trail are not
transmogrified into “lands in the National Park
System,” as the Trails Act makes clear. Given the
express language of the Trails Act, that should be the
end of the matter.
But a closer reading of the Park Service Act
confirms the Fourth Circuit’s error. In keeping with
the Trails Act (and other federal statutes), the Park
Service Act makes clear that not everything that the
Park Service plays some role in administering
constitutes “lands in the National Park System.” For
example, the Park Service Act grants the Park
Service certain limited duties with respect to “related
areas.” 54 U.S.C. §100801(3). That the Park Service
may designate those areas “units of the National
Park System” for purposes of accomplishing those
objectives does not convert them into National Park
System lands.
28
The Park Service Act also makes clear that land
can be treated as part of a park “System unit”
without becoming lands of the National Park System.
For example, Congress has authorized the Secretary
of the Interior “to consolidate Federal land ownership
within the existing boundaries of any System unit,”
id. §101102(a)(1), and to “accept title to any nonFederal property or interest in property within a
System unit or related area,” id. §102901(b)(1); see
also id. §200306(a)(2)(A) (authorizing “the acquisition
of land, water, or an interest in land or water within
the exterior boundary of … a System unit”). These
authorizations would be nonsensical if “System
units” were coterminous with “lands in the National
Park System.” Thus, the Fourth Circuit’s effort to
convert the entire Appalachian Trail into “lands in
the National Park System” is no more consistent with
the Park Service Act than with the Trails Act or the
MLA.
2. The Fourth Circuit alternatively suggested
that the head of the Forest Service is not the
“appropriate agency head” to grant a right-of-way
because the Trails “Act is clear that the Secretary of
the Interior administers the entire [Appalachian
Trail], while ‘other affected State and Federal
agencies,’ like the Forest Service, manage trail
components under their jurisdiction.” App.60. The
court’s assertion is doubly incorrect.
First, the
relevant statute is the MLA, which does not define
the appropriate “agency head” as the head of the
agency that “administers” a federal system within
which federal lands fall. The MLA defines that
“agency head” as “the head of any Federal
department or independent Federal office or agency,
29
other than the Secretary of the Interior, which has
jurisdiction over Federal lands.” 30 U.S.C. §185(b)(3)
(emphasis added). The question under the MLA is
thus not which agency “administers” the trail (which
traverses all manner of lands, including non-federal
lands), but which agency has jurisdiction over the 21mile stretch of “Federal lands” through which the
pipeline would cross (including 0.1-mile beneath the
Appalachian Trail). And that agency is the Forest
Service, not the Park Service.
The Fourth Circuit compounded its error by
claiming that the Trails Act “clearly distinguishes
between trail administration and management,” and
reserves all “administration responsibilities” to the
Secretary tasked with “administering” the trail itself.
App.60. In fact, the Trails Act recognizes that while
one agency will be responsible for the “overall
administration” of the trail, 16 U.S.C. §1246(a)(1)(A),
other agencies may administer (not just “manage”)
lands within it.
For example, as noted, the Secretary charged
with administering the trail may pass regulations
governing the trail only with the “concurrence of the
heads of any other Federal agencies administering
lands through which” it passes.
Id. §1246(i)
(emphasis added). And the Trails Act requires that
Secretary to “establish an advisory council” that
includes “the head of each Federal department …
administering lands through which the trail route
passes.”
Id. §1244(d).
It also makes certain
resources available to “[t]he Secretary responsible for
the administration of any segment of any component
of the National Trails System.”
Id. §1246(i)
30
(emphasis added). On top of all that, the Trails Act
repeatedly uses the phrase “federally administered
lands” to refer to parts of a national trail that are
within the jurisdiction of another agency—a label
that would be nonsensical if, as the Fourth Circuit
claimed, the act reserves all “administration
responsibilities” over lands that a national trail
traverses
to
the
Secretary
tasked
with
“administering” the trail itself, App.54. See, e.g., 16
U.S.C. §1243(b); id. §1244(a)(3)-(8), (10)-(11), (13)(19), (21)(D); id. §1246(a)(1)(A), (e), (h)(1), (i).
Finally, the Fourth Circuit’s error is underscored
by its implications for trails administered by the
Secretary of Agriculture that traverse actual
National Park Service lands. If what matters is not
which agency has ownership and jurisdiction over the
underlying
lands,
but
which
agency
has
administrative oversight over the trail, then it would
follow that the Secretary of Agriculture could grant
pipeline rights-of-way across National Park System
lands, if those lands are traversed by trails
administered by the Agriculture Secretary. That is
not a hypothetical scenario. At the same time
Congress designated the Interior Secretary as having
primary authority over the Appalachian Trail, it
vested the Secretary of Agriculture with primary
authority over the Pacific Crest National Scenic
Trail, which traverses several national parks,
including Yosemite and Sequoia. It makes little
sense to think that Congress intended to vest
jurisdiction over the lands in those parks, as opposed
to administrative jurisdiction over the trail, in the
Secretary of Agriculture or to authorize pipeline
rights-of-way on parkland. But it makes no more
31
sense to think Congress intended the converse with
respect to Forest Service land traversed by the
Appalachian Trail.
The far sounder conclusion is
that in both instances, the Trails Act left ownership
and jurisdiction over the underlying lands
unaffected.
*
*
*
The 0.1-mile segment of the Appalachian Trail
under which Atlantic’s pipeline will run is and
always has been Forest System land. That makes it
“Federal lands” within the meaning of the MLA, and
it makes the Forest Service the “appropriate agency
head” to grant Atlantic a right-of-way. 30 U.S.C.
§185(a), (b)(3). To say otherwise—to conclude that
the Trails Act effected a massive sub silentio land
transfer from the Forest Service, other federal
agencies, states and even private landowners to the
Park Service—betrays both the various statutes
governing the Trail and decades of consistent agency
understanding.
II. The Decision Below Will Have Dramatic
Consequences Far Beyond This Case.
The Atlantic Coast Pipeline is important to the
energy needs of millions of Americans. That the
Fourth Circuit’s decision imperils the billions of
dollars already invested in this pipeline made in
good-faith reliance on dozens of regulatory approvals
is reason enough for this Court’s review. But the
impact of the decision below goes much further than
one pipeline. The court has effectively erected a
2,200-mile barrier severing the Eastern Seaboard
from oil and gas sources west of the Appalachian
Trail.
32
At the outset, the decision below immediately
impedes the progress of multiple proposed energy
projects. The Appalachian Trail runs the length of
the Fourth Circuit and beyond. Most of the land it
traverses are now federal lands, and approximately
half of those federal lands falls within the Forest
System. Accordingly, the decision effectively limits
any pipeline from bringing natural gas to eastern
Virginia or North Carolina.
The economic impact that will result just from
that barrier is massive. The Atlantic Coast Pipeline
alone is estimated to generate some $2.7 billion in
economic activity, and roughly $4.2 million in tax
revenue annually during construction. See ACP,
“Powering the Future, Driving Change Through
Clean
Energy,”
2,
8,
available
at
https://atlanticcoastpipeline.com/resources/docs/resou
rces/acp-factbookversion2.pdf.
The project will
support 17,240 jobs during its construction and 2,200
jobs once in operation. Id. Perhaps most important,
the pipeline will provide substantial economic
benefits to consumers. Atlantic estimates that the
pipeline will bring consumers some $377 million in
annual savings. Id. at 19.
And that is just this pipeline. Left standing, the
court’s decision may well prevent construction of the
Mountain Valley Pipeline, which also would cross
National Forest System land traversed by the
Appalachian Trail within the Fourth Circuit. See 81
Fed. Reg. 71,041 (Oct. 14, 2016). And the decision
has almost surely nipped other yet-to-be-proposed
projects in the bud by introducing significant and
unnecessary regulatory uncertainty.
33
These and other pipelines are essential to
everyday Americans. As the Pipeline and Hazardous
Materials Safety Administration (“PHMSA”) has
explained, pipelines
enable the safe movement of extraordinary
quantities of energy products to industry
and consumers, literally fueling our economy
and way of life. The arteries of the Nation’s
energy infrastructure, as well as one of the
safest and least costly ways to transport
energy products, our oil and gas pipelines
provide the resources needed for national
defense, heat and cool our homes, generate
power for business and fuel an unparalleled
transportation system.
PHMSA, “General Pipeline FAQs,” available at
https://www.phmsa.dot.gov/faqs/general-pipelinefaqs.
Natural gas pipelines like the Atlantic Coast
Pipeline also do much for the environment.
According to the PHMSA, even a “modest pipeline”
eliminates the need for 750 tanker trucks per day, or
225 28,000-gallon railroad tank cars. Id. And, when
combusted, natural gas produces half the emissions
of coal. See “Powering the Future, Driving Change
Through Clean Energy,” at 2. It is no wonder, then,
that in recent years the federal government has
taken steps that encourage the construction of
pipelines. In 2015, for example, Congress passed the
Fixing America’s Surface Transportation Act, Pub. L.
No. 114-94, 129 Stat. 1312, which streamlines the
permitting process for significant infrastructure
34
projects. Pipelines are included as a “covered project”
under the statute. 42 U.S.C. §4370m(6)(A).
Now, however, any company considering
investing in an infrastructure project designed to
transport energy from the resource-rich areas west of
the Trail to Americans residing on the East Coast
will have to reconsider. Indeed, even outside the
Fourth Circuit, investors undoubtedly will fear that
the (il)logic of the decision below will spread, chilling
critical future investment along the Eastern
Seaboard and beyond.
The Fourth Circuit’s decision casts significant
doubt on the approximately 56 pipelines that
currently cross the Appalachian Trail.
Those
pipelines were authorized on the understanding that
neither the Trails Act nor the MLA posed a barrier to
approval. And federal agency approvals for such
crossings are subject to renewal. See, e.g., Sierra
Club v. U.S. Forest Serv., 828 F.3d 402, 404-05 (6th
Cir. 2016); App.67-68. If the MLA truly does forbid
the Forest Service from granting rights-of-way across
the Trail, then the Forest Service likely lacks the
authority to renew those permits.
And the consequences of the decision do not
necessarily stop with pipelines. In the Fourth Circuit
alone, the Forest Service has granted dozens of
permits
for
electrical
transmission
lines,
telecommunications sites, municipal water facilities,
roads, and grazing areas on Forest System lands
traversed by the Appalachian Trail. The decision
below suggests all those rights-of-way were granted
by the wrong federal agency. Moreover, in declaring
the entirety of the Appalachian Trail “lands in the
35
National Park System,” the Fourth Circuit gave
absolutely no thought to the consequences for private
landowners through whose land the Trail runs. If
those landowners have lost the potentially lucrative
right to grant rights-of-way under their land, then
the Trails Act worked a massive sub silentio taking.
Finally, review is warranted to underscore the
proper role of the appellate courts in considering
challenges to a pipeline approved by more than a
dozen expert agencies. As noted, the decision here
does not stand alone, but forms part of a pattern of
decisions by the Fourth Circuit (with identical or
largely overlapping panels) finding fault after fault in
the arduous approval process for pipelines. Those
decisions seized on novel procedural impediments
with little grounding in the APA. For example, in
addition to its novel Trail holding, the decision below
faulted the Forest Service for changing its position
during the course of the approval process about the
number of supporting designs it would first review,
even though the Fourth Circuit could not fault the
agency for demanding too few studies. But see Natl.
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 658-59 (2007) (“The federal courts ordinarily are
empowered to review only an agency’s final action,
see 5 U.S.C. §704, and the fact that a preliminary
determination by a local agency representative is
later overruled at a higher level within the agency
does not render the decisionmaking process arbitrary
and capricious.”).
What separates the question presented here is
that it cannot be fixed by adding further details or
explanations on remand.
And that makes this
36
Court’s intervention imperative. Parties that invest
hundreds of millions in securing a host of regulatory
approvals should not face countless delays and the
risk of investments stranded by the need for a second
round of judicial approvals that then produce latebreaking substantive barriers to boot. Necessary
infrastructure investments will not be forthcoming if
APA review devolves into a war of attrition.
In sum, the Fourth Circuit’s decision will have
substantial and immediate effects on the economy
and the energy supply for millions of Americans
residing on the East Coast. In the long-term, the
decision will stifle infrastructure development and
create regulatory uncertainty along the Appalachian
Trail and other national trails for decades to come.
That result is contrary to applicable law, and more
than suffices to warrant this Court’s review.
CONCLUSION
For the foregoing reasons, this Court should
grant the petition for certiorari.
37
Respectfully submitted,
PAUL D. CLEMENT
Counsel of Record
ERIN E. MURPHY
WILLIAM K. LANE III
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave, NW
Washington, DC 20005
(202) 389-5000
paul.clement@kirkland.com
Counsel for Petitioner
June 25, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.