Supreme Court Pipeline Fight Could Disrupt How The Appalachian Trail Is Run

Feb 21, 2020
Originally published on February 21, 2020 3:26 pm

The Appalachian Trail – the 2,200-mile hiking stretch that goes from Georgia to Maine — is at the center of a legal battle that has risen to the Supreme Court.

The case involves a proposed pipeline that would connect natural gas fracked in West Virginia to population centers in Virginia and North Carolina. The Atlantic Coast Pipeline would cross the Appalachian Trail within the George Washington National Forest in Virginia, and some environmental groups are challenging the legality of the permit the U.S. Forest Service issued allowing that to happen.

Those who manage the Appalachian Trail are not involved in the litigation of the case. Instead, they say it has become a football between two sides: the pipeline company and the environmental groups who oppose it. The Appalachian Trail Conservancy, the private organization that oversees the day-to-day management of the trail, is not involved because – perhaps surprisingly – the group does not oppose the pipeline.

The group coordinates efforts with federal and state agencies, more than 30 smaller regional groups and thousands of volunteers, and warns that a ruling could upend this complicated structure that allows them to maintain the trail.

"There might be a lot of really good reasons to oppose the Atlantic Coast Pipeline," says Andrew Downs, a senior regional director for the Appalachian Trail Conservancy. "The Appalachian Trail is being used as a tool to stop it."

The conservancy's take

The 600-mile, 42-inch wide Atlantic Coast Pipeline would cross the trail about an hour west of Charlottesville, Va., at a spot perched on a George Washington National Forest mountain ridge.

Downs has been up there about a dozen times since the pipeline was first proposed in 2014.

Andrew Downs, senior regional director for the southern region of the Appalachian Trail Conservancy, stands at the approximate spot where the pipeline would cross underground.
Becky Sullivan / NPR

The conservancy has issued detailed policy for determining whether to oppose a pipeline proposal, and it is centered on how the proposal affects the trail. For this pipeline, at this spot, the group decided to neither support nor oppose it.

"That's not to say that there aren't direct impacts from the Atlantic Coast Pipeline to the Appalachian Trail. There are," Downs says. "Our analysis led us to the conclusion that the scope and range of those impacts did not rise to the level requiring opposition."

One factor the conservancy considered was that the pipeline would cross the trail 700 feet underground, and that the pipeline would enter and exit on private land on either side of the mountain. For most of the pipeline's length, it would be buried less than 10 feet deep.

Another factor is the view. The pipeline's pathway would be cleared of trees, and that would be visible from the mountainside. In an area where the trail is truly in the wilderness, that might be cause for opposition, Downs explains. But standing on the trail, it's not exactly wild; the view from the ridge is dotted with houses, roads and fields. Additionally, the trail in this part of central Virginia runs adjacent to the Blue Ridge Parkway, and at the spot of the proposed crossing, the trail and the parkway are particularly close, just about 100 yards apart. You can't see the parkway, but you can hear the cars.

Looking west from this overlook in the George Washington National Forest in central Virginia, the pathway of the pipeline would be visible along the valley floor running to the north.
Becky Sullivan / NPR

"The reality is ... the Blue Ridge Parkway is here, people's homes are here, this is part of the society we live in," he says.

Who has authority?

The case to be before the Supreme Court on Monday focuses on a technical question of legal authority: who is allowed to grant a permit for a pipeline on federal land?

Because the pipeline would cross the trail in a national forest, the Forest Service granted a permit to the pipeline company.

But the Forest Service doesn't have the authority to grant a permit across a National Park. Though the trail is managed day-to-day by the Appalachian Trail Conservancy, it's technically a unit of the National Park System.

"The Forest Service assumed it has jurisdiction because this piece of land is within the George Washington National Forest," says Noah Sachs, a professor of environmental law at the University of Richmond. "Under an old law called the Mineral Leasing Act of 1920, the Forest Service has the power and the right to approve energy projects including pipelines throughout the national forests."

However, lands in the National Park System are excluded from that law. Congress created national parks in order to preserve land, not for industry use. As such, only Congress can grant a permit for a pipeline to cross a national park.

"If, in fact, the Appalachian Trail is part of the National Park System, then the Forest Service had no authority to authorize this tunneling underneath it for the Atlantic Coast Pipeline," Sachs says.

So where the trail crosses a national forest, who's in charge when it comes to a gas pipeline permit?

The Southern Environmental Law Center (SELC) challenged the Forest Service permit and is the environmental group leading the litigation. The Fourth Circuit Court of Appeals, based in Richmond, revoked the permit in December 2018. The court found that the Forest Service lacked the authority to grant the pipeline permit across the trail.

The pipeline company, Atlantic Coast Pipeline LLC, appealed.

Orange flags near the trail mark the approximate crossing location of the pipeline, which would be tunneled hundreds of feet below ground.
Becky Sullivan / NPR

Precedent, policies and understanding

The issue of on-the-ground authority over the Appalachian Trail has never been questioned in this way before. Trail officials say this worries them because of the way they manage it.

Because it crosses so many different kinds of lands — federal, state, parks, forest, even some privately owned land — the Appalachian Trail Conservancy has relied on decades of precedent, policies and understanding.

The Fourth Circuit's ruling took those who manage the trail by surprise.

"Up until that point, we had operated under the assumption that when the trail is on Forest Service lands, or when the trail is on state lands, that those agencies have jurisdiction in terms of their legal framework or their regulations," says Laura Belleville, vice president of conservation and trail programs with the conservancy. "We definitely weren't thinking along those lines."

It's not that the cooperative management system would immediately come crashing down.

But a Supreme Court ruling could trigger a long bureaucratic process of reexamining and reestablishing all of those many processes and procedures that have been effectively in place for more than 50 years.

The Appalachian Trail Conservancy says it's already seeing complications from the case. Belleville says the Forest Service recently asked the group to put on pause every planned maintenance project on national forest land. That included a trail relocation planned for this summer, when trail crews would have worked to move a portion of the trail to a less steep, more accessible route. The Forest Service declined to comment because of the ongoing litigation.

A sign marks the Three Ridges Overlook off of the Blue Ridge Parkway. That's the spot on the parkway nearest to the proposed pipeline crossing, and one of 26 places where the trail crosses the Blue Ridge Parkway.
Becky Sullivan / NPR

Also caught by surprise was Rita Hennessy, who retired last December as the administrator of the National Trails System, the office within the National Park Service that oversees national trails.

"The fact that it was identifying the Appalachian Trail corridor as part of the National Park Service, that's what was most surprising. That's not how we have managed the National Trails System for 50 years," Hennessy says.

When asked how a Supreme Court decision to uphold might affect the administration of the Appalachian Trail, Hennessy reels off a series of policies that could be thrown into doubt: issues of compliance, land management, acquiring lands, trail maintenance, volunteer use. She says a ruling could also open the door to legal questions about other national trails that are managed in similar ways.

Hennessy says she will be watching the court proceedings with anxiety. Any decision by the Supreme Court could change things for the trail.

"Having worked with national trails for my whole 30-year career and beyond that, it's something that's out there that is just looming," she says. "And we're not sure how it's going to be decided."

The SELC says that the question before the Court is so narrow that it will not affect trail management.

"No one should worry that the outcome of this case is going to affect the cooperative management that has been part of the Appalachian Trail's success and should be going forward," says D.J. Gerken, an SELC attorney.

Either way the court rules, it's not the end of the road for the Atlantic Coast Pipeline or for the environmental groups. The pipeline company is lobbying Congress for a special permit. The SELC has won several other challenges to the pipeline that will pose obstacles to its construction, no matter how this case turns out.

For the trail, though, this is the big one.

"There are a lot of organizations who are focused on many other things and do a lot of excellent work protecting the environment," says Downs of the Appalachian Trail Conservancy. "And I applaud those folks. But there's only one organization in the whole world that's dedicated solely to the Appalachian Trail. And we have to make sure that our decision process reflects that level of focus, because if it's not us that speak for the trail and only the trail, then no one else will."

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AUDIE CORNISH, HOST:

We're going to spend the next few minutes talking about a Supreme Court case and the group that feels caught between the two sides. If it's ever built, the Atlantic Coast Pipeline would run 600 miles and carry natural gas from West Virginia to North Carolina and Virginia.

MARY LOUISE KELLY, HOST:

Between start and finish is a big physical barrier, the Blue Ridge Mountains, and what has become a potential legal barrier, the Appalachian Trail. Environmental groups who oppose the pipeline have challenged the legality of a Forest Service permit allowing the pipeline to cross the trail. The people who manage the trail say that challenge took them by surprise, and they warn a ruling in favor of those environmental groups could upend the trail's complicated management structure. NPR's Becky Sullivan explains.

BECKY SULLIVAN, BYLINE: Do you want to lead the way?

ANDREW DOWNS: Take a walk?

SULLIVAN: Yeah.

DOWNS: Yeah. Let's go this way.

SULLIVAN: Earlier this month, I came out to the spot on the trail where the Atlantic Coast Pipeline may one day cross. It's about an hour west of Charlottesville, right up on a mountain ridge in the George Washington National Forest. The trail is just a dirt footpath winding through trees that are all bare because it's February. From up here, you can see out into the valley to the north. I met Andrew Downs, a senior regional director for the Appalachian Trail Conservancy. That's the private organization that oversees the day-to-day management of the trail. It coordinates efforts between federal and state agencies and the boots-on-the-ground work of regional groups and volunteers.

So the orange - you think the orange flags are marking this...

DOWNS: It's about in the right area.

SULLIVAN: Yeah.

DOWNS: You know, I've been out here probably, you know, a dozen times.

SULLIVAN: As we're walking along the trail, Andrew Downs wants to make one thing clear - the Appalachian Trail Conservancy is not opposed to this pipeline. They don't support it, but they also don't oppose it.

DOWNS: But that's not to say that there aren't direct impacts from Atlantic Coast Pipeline to the Appalachian Trail; there are. You know, our analysis led us to the conclusion that the scope and range of those impacts did not rise to the - a level requiring opposition.

SULLIVAN: For one, the pipeline would cross under the trail, about 700 feet underground. It would enter and exit on private land, off the national forest. You would see a cleared pathway around the pipeline off in the distance. And if we were standing in true wilderness, Andrew Downs says, that might be cause for opposition. But standing on the trail here, it's not exactly wilderness we're looking at. The view is already dotted with what he calls impacts - houses, roads, fields - all sorts of things cutting through the trees below.

DOWNS: All the visual impacts that we see for the - you know, this kind of wilderness experience. The best way to do that is for all those things not to exist and this be a natural and forested landscape. But the reality is, you know, we're here. The Blue Ridge Parkway is here. People's homes are here. This is part of the society we live in.

SULLIVAN: The Appalachian Trail Conservancy runs on this kind of pragmatism. It's part of the deal when you're coordinating multiple federal and state agencies with the efforts of 30-plus regional clubs and thousands of volunteers. The conservancy has been doing this work for almost a century, so well before the Appalachian Trail was brought under federal management as part of the National Trail System in the 1960s. But they were not part of this litigation.

DOWNS: You know, what happens is people want to stop a pipeline oftentimes for good reasons, and they want to use every tool available to do that.

SULLIVAN: The question before the court centers around who is allowed to grant a permit for a pipeline like this on federal land. Because the pipeline would cross the trail in a national forest, the Forest Service granted a permit to the pipeline company. The Forest Service doesn't have the authority to grant a permit across a national park. And though the trail is managed day to day by the Appalachian Trail Conservancy, it is technically a part of the National Park System.

Noah Sachs is a professor of environmental law at the University of Richmond. He's been watching this case.

NOAH SACHS: So if, in fact, the Appalachian Trail is part of the National Park System, then the Forest Service had no authority to authorize this tunneling underneath it for the Atlantic Coast Pipeline.

SULLIVAN: That's the argument an environmental group used to challenge the Forest Service permit. The Fourth Circuit Court of Appeals agreed, and they revoked the permit. The pipeline company has appealed.

SACHS: So that's really the crux of the issue that's before the Supreme Court on Monday.

SULLIVAN: The issue of on-the-ground authority over the Appalachian Trail has never been questioned in this way before. Trail officials say this worries them because of the way they manage the trail. Because it crosses so many different kinds of lands - federal, state parks forest, even some privately owned land - the Appalachian Trail Conservancy has relied on decades of precedent policies and understanding in order to do its work.

It's not that it would all come crashing down tomorrow, but a Supreme Court ruling could potentially trigger a long bureaucratic process of reexamining and reestablishing many of the policies and procedures that have effectively been in place for more than 50 years. And that process could disrupt the trail's everyday management needs. Until her retirement last December, Rita Hennessy was the administrator of the National Trail System. That's the office within the Park Service that oversees these types of national trails. The Fourth Circuit's ruling in 2018 caught her by surprise.

RITA HENNESSY: The fact that it was identifying the Appalachian Trail corridor as part of the National Park Service, that's what was most surprising. That's not how we have managed the National Trail System for 50 years.

SULLIVAN: Hennessy told me she immediately worried about the domino effects. When I asked how a Supreme Court decision to uphold might affect the administration of the Appalachian Trail, Hennessy reeled off a series of policies that could be thrown into doubt - issues of environmental compliance, land management, acquiring lands, trail maintenance, volunteer use. You get the idea. She'll be watching the arguments Monday with some nervousness because any decision by the Supreme Court could change things for the trail.

HENNESSY: You know, having worked with national trails, you know, for my whole 30-year career and beyond that, it's something that's out there that is just looming. And we're not sure how it's going to be decided.

SULLIVAN: The Appalachian Trail Conservancy says they are already seeing complications from the case. They say the Forest Service recently asked them to put on pause every trail maintenance project they had planned that would take place on national forest land this summer. The Forest Service declined to comment because of the ongoing litigation. The Southern Environmental Law Center is the environmental group leading the litigation. In response to trail officials' concerns, attorney D.J. Gerken says the question before the court is so narrow that it will not affect trail management.

DJ GERKEN: No one should worry that the outcome of this case is going to affect the cooperative management that has been part of the Appalachian Trail's success and should be going forward.

SULLIVAN: No matter how the court rules, it's not the end of the road for the Atlantic Coast Pipeline or for the environmental groups who oppose it. The pipeline company is lobbying Congress for a special permit, and Gerken's group has won several other challenges to the pipeline that will still pose obstacles regardless of how this case turns out. For the trail, this is the big one. Andrew Downs with the Appalachian Trail Conservancy.

DOWNS: There are a lot of organizations who are focused on protecting the environment, litigating, like, you know, broad, focused environmental issues, and I applaud those folks. But there's only one organization in the whole world that's dedicated solely to the Appalachian Trail, and we have to make sure that our decision process reflects that level of focus because if it's not us that speak for the trail and only the trail, then no one else will.

SULLIVAN: Oral arguments for the case take place Monday. The court is expected to rule this summer. Becky Sullivan, NPR News.

(SOUNDBITE OF LISSIE'S "MY WILD WEST OVERTURE") Transcript provided by NPR, Copyright NPR.