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U.S. Forest Service v. Cowpasture River Preservation Association: A Limited—and Perhaps Hollow—Victory for a Pipeline

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18 Jun 2020
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July 18, 2020

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 590 U.S. ___ (2020) (Thomas, J.).
Response by Dean Emily Hammond
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

U.S. Forest Service v. Cowpasture River Preservation Association: A Limited—and Perhaps Hollow—Victory for a Pipeline

In U.S. Forest Service v. Cowpasture River Preservation Ass’n,1 the Supreme Court took up a brainteaser of statutory construction involving the jurisdictional boundaries between the U.S. Forest Service and the National Park Service. The facts concerned the beleaguered Atlantic Coast Pipeline (ACP),2 which seeks to construct and operate a 604-mile natural gas pipeline from West Virginia, through Virginia, and into North Carolina. The proposed route traverses the George Washington National Forest, and within it, the Appalachian Trail.3

In 2018, the Forest Service granted ACP’s request for a permit to cross the Trail about 600 feet below ground.4 On a challenge by environmental advocates, the Fourth Circuit thoroughly rejected the agency’s actions, holding arbitrary and capricious its application of the governing forest planning rule to the pipeline project, its determination that there was no substantial adverse impact on the National Forest associated with pipeline construction, its failure to consider pipeline route alternatives in its environmental impact statement, and its failure to take a hard look at the environmental consequences of the pipeline.5 Using unusually strong wording, the court admonished the agency: “We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’”6 Instead, the court emphasized, the agency had “abdicated its responsibility to preserve national forest resources.”7 The court vacated and remanded the agency’s decisions.8

Only at the end of its opinion did the Fourth Circuit consider the issue on which the Supreme Court granted certiorari: The circuit held that the Forest Service lacked authority to permit the pipeline to cross the Appalachian Trail, drawing largely from its construction of the relevant statutes.

To understand the issue requires the following background. The George Washington National Forest is part of the National Forest System and under the jurisdiction of the Forest Service.9 The Appalachian Trail, by contrast, is part of the National Trails System and is under the jurisdiction of the National Park Service.10 Also at play is the Mineral Leasing Act, which grants the Secretary of Interior and “appropriate agency head[s]” authority to grant pipeline rights-of-way through “Federal lands.”11 The term “Federal lands,” however, excludes lands in the National Park System.12

Justice Thomas’s majority opinion for the Supreme Court,13 however, offered a formalistic approach that drew from private property law. The relevant portion of the Appalachian Trail, he reasoned, was created through a right-of-way agreement between the Forest Service and the National Park Service.14 Rights-of-way are easements granting a right to pass, but leaving ownership of the land itself in the grantor.15 Therefore, concluded the Court, the Trails Act and resulting agreement did not transfer the land underlying the Appalachian Trail to the National Park Service: “A trail is a trail, and land is land.”16

Justice Sotomayor’s dissent expanded on what the Fourth Circuit had offered. She contended that as defined in the Park Service Organic Act, “lands” is in fact any “unit” of the Park System, including any area of land administered by Park Service.17 By definition, therefore, the Trail is land within the exclusion set forth in the Mineral Leasing Act.18 Indeed, she argued that Congress intentionally preserved National Park lands like the Trail from interference because the very purpose of such lands was to “leave them unimpaired for the enjoyment of future generations.”19

Perhaps it is this final point that should frame how history remembers the Cowpasture River decision. Though a technical victory for the ACP, the decision left untouched the bulk of the Fourth Circuit’s rulings—including the numerous findings that the Forest Service acted arbitrarily and capriciously with respect to the environmental impacts of the pipeline. Moreover, the ACP lacks numerous key permits that would allow it to move to completion; in a different case, the Fourth Circuit vacated the Fish and Wildlife Service’s Biological Opinion associated with the project.20 The project’s permits for some 1500 stream and wetland crossings are also currently suspended.21 Nor would a casual reader of Cowpasture River appreciate the vast network of grassroots activism that has risen up in opposition to the ACP and similar pipeline projects.22 Though a technical matter of statutory interpretation has been resolved, the victory for ACP may well be hollow.

Emily Hammond is a nationally recognized expert in energy law, environmental law, and administrative law. A former environmental engineer, Dean Hammond’s current projects include an examination of administrative law in regional and local offices, and a book project that explores how federal energy and environmental laws have enabled, shaped, and hindered grassroots resistance movements in Central Appalachia. They have been published in numerous journals, including the Columbia Law Review, the Duke Law Journal, the Michigan Law Review, and the Vanderbilt Law Review. Prior to joining the GW Law faculty, Dean Hammond served on the faculties at Wake Forest University and the University of Oklahoma College of Law. At GW Law, Dean Hammond teaches environmental law, energy Law, administrative law, and torts.

* Jeffrey and Martha Kohn Senior Associate Dean for Academic Affairs & Glen Earl Weston Research Professor of Law, The George Washington University.

  1. Nos. 18-1584 & 18-1587 (U.S. June 15, 2020).
  2. The ACP and a similar project, the Mountain Valley Pipeline (MVP) have been met with numerous legal setbacks and fierce resistance by coalitions of landowners, environmental groups, and environmental justice activists. See, e.g., Friends of Buckingham v. Air Pollution Control Bd., 947 F.3d 68, 87 (4th Cir. 2020) (holding permit for ACP compressor station arbitrary and capricious for failure of permitting authorities to consider environmental justice implications); Defenders of Wildlife v. U.S. Dep’t of Interior, 931 F.3d 339, 366 (4th Cir. 2019) (holding arbitrary and capricious the Fish and Wildlife Service’s Biological Opinion for the ACP); Sierra Club v. Army Corps of Eng’rs, 909 F.3d 635 (4th Cir. 2018) (holding unlawful the application of a nationwide water permit to stream crossings for MVP); Nelson County, Va. Service Authority Bd., Board Minutes at 4 (July 19, 2018), http://www.nelsoncountyserviceauthority.com/images/NCSA_MINUTES_JULY_19_2018.pdf (unanimously voting against selling water at a special discount rate to ACP).
  3. Congress created the Appalachian National Scenic Trail in 1968, as part of the National Trail Systems Act. See 16 U.S.C § 1244(a), (a)(1) (2018).
  4. Cowpasture River, slip op. at 2.
  5. Cowpasture River Preservation Ass’n v. U.S. Forest Serv., 911 F.3d 150, 183 (4th Cir. 2018), rev’d in part, Nos. 18-1584 & 18-1587 (U.S. June 15, 2020).
  6. Id. (quoting Dr. Seuss, The Lorax (1971)).
  7. Id.
  8. Id.
  9. See 16 U.S.C. § 1609 (establishing National Forest System).
  10. See National Wild and Scenic Rivers System and National Trails System, Responsibility for Planning and Operation of Programs and Projects, 34 Fed. Reg. 14337 (Sept. 12, 1969) (delegating Secretary of Interior’s authority over the Appalachian Trail under the National Trails Act to the National Park Service).
  11. 30 U.S.C. § 185(a) (2018).
  12. § 185(b)(1).
  13. The opinion was joined by Chief Justice Roberts and Justices Breyer, Alito, Gorsuch, and Kavanaugh, and joined by Justice Ginsburg for all but Part III-B-2. Part III-B-2, among other things, alluded to agency overreach and asserted that the respondents’ theory had “striking implications for federalism and private property rights.” Cowpasture River, slip op. at 15.
  14. Cowpasture River, slip op. at 6. The Trails Act uses this language with respect to private and state property owners. 16 U.S.C. § 1246(a)(2) (2018).
  15. Cowpasture River, slip op.at 7.
  16. Id. at 10.
  17. Cowpasture River, slip op. at 4 (Sotomayor, J., dissenting). Justice Sotomayor was joined by Justice Kagan.
  18. Id. at 5.
  19. Id. at 7 (quoting 54 U.S.C. §§ 100101, 100501 (2018)).
  20. See Defenders of Wildlife, 931 F.3d at 336.
  21. See, e.g., Letter from Army Corps of Engineers to Atlantic Coast Pipeline, LLC, Nov. 20, 2018 (Notice of Nationwide Permit 12 Verification Suspension); see also Northern Plains Res. Council v. U.S. Army Corps of Eng’rs, CV-19-44-GF-BMM, 2020 WL 1875455, at *7–8 (D. Mont. Apr. 15, 2020) (holding arbitrary and capricious Corps’ reissuance of Nationwide Permit 12 for failing to comply with Endangered Species Act and enjoining any permitting under the permit pending completion of instructions on remand).
  22. See Lara Mack, Momentous Win for Environmental Justice and Against Pipelines!, Appalachian Voices (Jan. 9, 2020), https://appvoices.org/2020/01/09/momentous-win-for-environmental-justice-and-against-pipelines/ (describing efforts of historically black community to halt ACP compressor station); see also Joe Dashiell, Tree-Sitters Mark Another Milestone in Montgomery County, WDBJ7 News (Jan. 18, 2020 7:17 AM), https://www.wdbj7.com/content/news/Tree-sitters-mark-another-milestone-in-pipeline-protest-567094901.html (referencing 500th day of tree-sitting in opposition to Mountain Valley Pipeline).

Recommended Citation
Emily Hammond, Response, U.S. Forest Service v. Cowpasture River Preservation Association: A Limited—and Perhaps Hollow—Victory for a Pipeline, Geo. Wash. L. Rev. On the Docket (June 18, 2020), https://www.gwlr.org/u-s-forest-service-v-cowpasture-river-preservation-association-a-limited-and-perhaps-hollow-victory-for-a-pipeline/.

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