On October 4, 2019, the US Supreme Court indicated it will consider the authority of the US Forest Service (USFS) to grant rights-of-way for pipelines to traverse national forest lands; the Court granted writs of certiorari in two related cases, US Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline v. Cowpasture River Preservation Association.

USFS Authorized the Pipeline
The cases are appeals from a decision of the US Court of Appeals for the 4th Circuit, which vacated a USFS Special Use Permit (SUP) and Record of Decision (ROD) authorizing construction of the Atlantic Coast Pipeline (ACP).  The SUP and ROD would have allowed the ACP to cross 21 miles through parts of national forests and across the Appalachian National Scenic Trail.

As I discussed in an earlier Alert [Court of Appeals Rejects Forest Service’s Approval of Atlantic Coast Pipeline], the 4th Circuit’s decision effectively stopped work on the proposed 604.5-mile natural gas pipeline from West Virginia to North Carolina.

ACP and USFS Appealed
In separate appeals of the 4th Circuit’s decision, ACP and USFS identified essentially the same disputed question: Does the USFS have authority under the Mineral Leasing Act to grant rights-of-way through lands traversed by the Appalachian Trail within national forests?  ACP’s writ also mentioned the National Trails System Act in its statement of the disputed question.

Identification of Substantial Harm to Energy Infrastructure
Both appeals identified other projects that could be adversely affected if the Supreme Court did not reverse the 4th Circuit’s ruling.  ACP argued the 4th Circuit’s ruling “effectively erected a 2,200-mile barrier severing the Eastern Seaboard from oil and gas sources west of the Appalachian Trail.”  ACP identified another current pipeline project at risk; moreover ACP said the 56 pipelines that currently cross the Appalachian Trail may not be allowed to renew their permits, if the USFS never had the authority to grant their rights-of-way.

The parties will submit full briefs and the Supreme Court will set a date for oral argument.