In 2017, The U.S. Federal Regulatory Committee gave the final approval for construction of the Atlantic Coast Pipeline (ACP). A project spearheaded by corporate giants, Dominion and Duke Energy Companies, the pipeline is intended to serve as a vessel for natural gas to reach consumers throughout Virginia, West Virginia and North Carolina. The approval process included reviewing permits issued by The US National Forest Service (USFS), The National Park Service (NPS) and several other federal agencies.
The USFS and The NPS are separate federal agencies. The USFS is managed by The Department of Agriculture, while the NPS is managed by the Department of the Interior. The biggest difference between the two is mission and purpose. The 154 forests managed by the USFS abide by a “multiple use” concept; which assesses recreation, fishing, and harvesting of timber. Their goal is to promote the interconnectedness between people and nature, while considering risk and reward to both. The NPS is considered federally protected; emphasizing strict preservation, which protects natural and cultural resources. The nation’s 62 national parks are to remain unaffected by infrastructure, encouraging multiple generations to enjoy their exceptional beauty.
The agencies were tasked with analyzing their lands for impacts that would effect ecological systems, air, water, and all resources indigenous to the region. Upon evaluation, permits were issued by the USFS allowing the pipeline to travel through The George Washington National Forest, The Monongahela National Forest, and travel underneath a section of The Appalachian Trail (AT). Conflict arose when Cowpasture River Preservation Association questioned the USFS’s authority to grant a right of way through the Appalachian Trail, which is classified as a National Park.
Cowpasture River Preservation Association is a citizen formed, non-profit organization located in Virginia. Formed in 1972, the nonprofit group takes aim at infrastructure projects that threaten the pristine character of the Cowpasture River. In 2018, they filed a complaint with the Fourth Circuit Court alleging that the USFS abused their authority when they granted a right of way through the AT. They relied on The Mineral Leasing Act of 1920; a statute allowing rights-of-way for pipelines, however expressly prohibits the U.S. government from authorizing pipelines across federal lands.
The court found in favor of CPRA; ruling that the USFS did indeed violate the Mineral Act of 1920. Only an act of Congress can grant the authority to the National Park Service to issue a permit of right-of-way. The ruling also concluded that the permitting processes were “mysterious, arbitrary and capricious.” After the decision, the USFS petitioned the U.S. Supreme Court on ground writ of certiorari, arguing a definitive answer was of critical national importance.
US Forest Service v. Cowpasture River Preservation Association made its way to The U.S. Supreme Court, February 24, 2020 with oral arguments lasting approximately 1 hour. The centralized question for the Supreme Court to decide is “Whether the Forest Service has authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.”
Anthony Yang, Assistant to the Solicitor General, and Paul Clement, of Kirkland and Ellis on behalf of USFS (petitioners); argue that the footpath of the AT, is not a unit of the National Park System. The footpath is not a product of nature, rather a product of those traversing the lands. The signage and shelters along the 2192-mile trail spanning from Maine to Georgia, are not true to the environment. In his definition, Yang contends that those directives along the footpath are within USFS authority as is the granting of the right-of-way for energy development.
Michael Kellogg, founding partner of Kellogg, Hansen, Todd, Figel & Frederick PLLC for the respondents argued that The Mineral Leasing Act is crystal clear that a pipeline cannot be authorized through federal lands. The exception being for by an act of congress, and he concluded by stating “Whether it’s a historic building, whether it’s a monument, whether it’s a parkway, or whether it’s a trail, if it’s administered, it counts as an area of land.”
The question over authority is to be determined by The U.S. Supreme Court, however, it would be impossible to ignore the political undertones of this case. CPRA was adamant In their original complaint to the Fourth Circuit Court, that there was not sufficient evidence of market demand, nor market justification for this type of infrastructure project. Lastly, they cited emails from the Trump Administration which pressured the USFS to stick to Dominion and Duke’s project timeline.
Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects (2017), an executive order signed into action by the President highly benefited the $6.5 million-dollar infrastructure project. Reaping the benefits of the proposed pipeline are Dominion, Duke, along with company shareholders. The two companies are revered as corporate political powerhouses in Virginia. Their linkage to the Trump Administration stems from former board member and now, United States Attorney General; William Barr. The energy companies have been known to align their political views with both parties, however have shifted their alliance toward the Trump Administration.
*US Forest Service v. Cowpasture River Preservation Association is pending adjudication before the U.S. Supreme Court.
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