Can the Appalachian Trail Block a Natural Gas Pipeline?

by Noah M Sachs

August 14, 2019

This commentary is excerpted from The American Prospect.

Hiking south on the Appalachian Trail from Reeds Gap in Virginia, my teenage daughter and I come to a clearing. We’re at the Three Ridges Overlook, taking in the view of the Rockfish River Valley undulating to the east. Piney Mountain, blanketed in a green canopy of oaks and poplars, stares back at us from across the divide. This tranquil section of the iconic trail is the subject of a four-year legal battle that landed in June at the Supreme Court. It’s the spot where Dominion Energy wants to route the controversial Atlantic Coast Pipeline (ACP), a $7.5 billion, 600-mile, 42-inch-diameter pipe that will carry fracked natural gas from the depths of the Marcellus Shale in West Virginia. The pipeline would run up and over several mountain ranges to the Virginia coast and to eastern North Carolina.

The stakes are high. The lawsuit over this section of the Appalachian Trail could determine the fate of some of the largest natural gas deposits in North America. In a landmark decision last December, the Fourth Circuit Court of Appeals in Richmond axed the project—for now. That court found that the entire Appalachian Trail from Georgia to Maine is part of the National Park System, blocking federal agencies from authorizing a pipeline crossing. The astonishing decision upended the U.S. natural gas industry and also jeopardizes other pipeline projects with proposed routes across the trail.

Whether the pipeline construction ever goes forward ultimately hinges on the question of who has authority over the Appalachian Trail. If the Supreme Court declines to hear Cowpasture River Preservation Association v. U.S. Forest Service (an announcement is expected this fall), then the Fourth Circuit decision will stand, and the ACP will likely be doomed unless it gets a congressional exemption or Dominion chooses a costly new route. Both Dominion and the Trump administration petitioned the high court to hear the case, with Dominion charging that the Fourth Circuit turned the trail into “an impregnable barrier” that locks up abundant natural gas in the Midwest. (Full disclosure: I’m on the board of an environmental group, Virginia Conservation Network, that has opposed the Atlantic Coast Pipeline, but VCN is not a party to any of the pipeline litigation.)

Yet an even more fundamental problem posed by this latest generation of pipeline projects is not the exact point where they cross the Appalachian Trail, but whether they should be built at all. Once these investments in fossil fuel infrastructure are made, developers have every incentive to use the pipelines for their whole useful life (about 80 years), which would throw greenhouse gases into the atmosphere and exacerbate the climate crisis.

The Appalachian Trail, the longest continuous hiking-only route in the world, occupies a strange legal landscape. No one had an incentive to determine conclusively who controlled sections of the trail—until now. But who controls the trail affects everything from jobs and energy resources to water quality and climate change. The Appalachian Trail has long been a story of power, property, jurisdiction, and land rights, and the quandaries surrounding those issues now fuel this case. Is the Appalachian Trail part of the National Park System even when it runs through property that the Park Service doesn’t own? If so, what does that mean for users of the trail? And how can U.S. energy policy support pipeline construction through public lands and at the same time allow a narrow strip of footpath to block the projects?

Did the court get it right? A plain reading of the applicable statutes shows that it did. At the heart of this case is the 1920 Mineral Leasing Act, which governs energy development on public lands. That law allows pipeline rights-of-way on “all lands owned by the United States,” except “lands in the National Park System.” Is the Appalachian Trail a land “in the National Park System”? According to the Fourth Circuit, the answer is "yes" because Congress defined the National Park System, in a 1916 law, to include “any area of land and water administered” by the Park Service.

Read the entire commentary in The American Prospect.

Tagged as: pipeline fracking
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Professor Noah Sachs is Professor of Law and Director, Robert R. Merhige, Jr. Center for Environmental Studies at the University of Richmond School of Law.

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