Environmental Law and Litigation is complex, but in recent news, there have been some great case examples that provide some insight, here are our thoughts:
The Supreme Court released its opinion yesterday in the condensed cases of United States Forest Service, et al. v. Cowpasture River Preservation Association et al. and Atlantic Coast Pipeline, LLC v. Cowpasture River Preservation Association et al. At first glance, the decision seems to require a simple answer found in the federal environmental regulations and laws: does the U.S. Forest Service have authority to issue a permit for an oil and gas pipeline to cross the Appalachian Trail? However, the complications as to which federal environmental regulations and laws apply, make the answer less than clear. Below we’ll break down the different aspects of the case.
Agencies Involved and the Relevant Federal Environmental Regulations
The U.S. Forest Service, or “USFS,” has jurisdiction over all of the federal land in the National Forest System by way of Title 16 of the U.S. Code (“Conservation”), the Leasing Act of 1920 (which enabled the USFS to grant pipeline rights-of-way through lands owned by the U.S., except for “lands in the National Park System,” Tribal trust lands, and lands on the Outer Continental Shelf), and the Weeks Act of 1911, as well as the relevant accompanying federal environmental regulations. These lands include the George Washington National Forest, as described below.
The National Park Service (“NPS”), on the other hand, manages all of the land in the National Park System, including the national scenic trails like the Appalachian Trail or “A.T.” This is accomplished using the National Park Service Act of 1916, the Trails Act of 1968 (which allowed NPS to enter into rights-of-way agreements with USFS and others to establish the trails’ locations and widths), and their associated federal environmental regulations.
The Permit Process and Resulting Disagreement
In 2018, the USFS granted a pipeline permit to Duke Energy and Dominion Energy which allowed them to build their subterranean Atlantic Coast Pipeline. The pipeline will cross the A.T. through the George Washington National Forest in central Virginia and intends to run from into Virginia and North Carolina.
Environmental groups sued to prevent the permit from being issued, arguing that the USFS did not have the authority to grant the permit because the NPS has authority over the units/lands in the National Park System and the NPS laws and federal environmental regulations should govern the permit approval process. The opposing argument was that the NPS received only an easement from the USFS (a right-of-way for maintaining the A.T.’s continuity and signage, etc.) and the land did not become National Park System land simply by the creation of a right-of-way. The battle played out in various courts before writs of certiorari were granted by the Supreme Court.
The Supreme Court Steps In
The Supreme Court oral arguments looked at different interpretations of terms in several federal environmental regulations and laws. The Court, in its 7-2 opinion, decided that the USFS was the appropriate agency for granting or denying the permit because they still maintain control over the land, and the trail footpath land was granted to NPS solely as a right-of-way easement for the A.T. “To restate this conclusion in the parlance of the Leasing Act, the lands that the Trail crosses are still ‘Federal lands,’ 30 U. S. C. §185(a), and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail.” Because easements only create nonpossessory interests in land (i.e. a right of way is only for use of the land, not for possession or ownership of it), the Court determined that the federal land never became National Park System land but rather remained under USFS jurisdiction.
What do you think? Did the Supreme Court make the right decision? Let us know or contact us about your own potential issue with an easement today. Our attorneys are available by email or phone at 401.477.0023.