Supreme Court asked to uphold lower court's ruling barring gas pipeline from crossing the Appalachian National Scenic Trail.

Editor's note: This corrects final quote to Pam Underhill, former superintendent of the Appalachian Trail.

Any gas pipelines that cross the Appalachian National Scenic Trail or the Blue Ridge Parkway need to be approved by Congress, not simply the U.S. Forest Service, according to an amicus brief filed with the U.S. Supreme Court by former National Park Service Director Jon Jarvis, the trail's former superintendent, the National Parks Conservation Association, and the Coalition to Protect America's National Parks.

The Atlantic Coast Pipeline is one of two pipeline projects -- the other is the Mountain Valley Pipeline -- that would thread through West Virginia, Virginia and North Carolina. Those two projects would require nearly 1,000 miles of pipeline along with a number of compressor stations. 

The Appalachian Trail was originally envisioned as a "'super trail' along the mountain crests of the eastern wilderness," notes the National Park Service. "(Benton) MacKaye saw the Appalachian Trail as an escape from the evils of modern life and as 'a moral equivalent to war.'"

While sections of the 2,180+-mile trail do traverse wilderness-quality landscapes, the crush of society has created views of cities, industry, and highways along some sections today.

In December 2018 a unanimous U.S. Fourth Circuit Court of Appeals ruled (attached below) that the U.S. Forest Service lacked the authority to OK construction of the Atlantic Coast natural gas pipeline across the Appalachian Trail, or any lands managed by the National Park Service, for that matter. Last June the company behind the pipeline, Dominion Energy's Atlantic Coast Pipeline, LLC, asked the U.S. Supreme Court to review the lower court's ruling.

Last week Jarvis, NPCA, the Coalition, and Pam Underhill, who served as the A.T.'s superintendent before she retired from the Park Service, asked the high court to consider its friend of the court brief (attached below).

"The question presented is whether the Appalachian Trail is a unit of the National Park System due to the fact that Congress charged the Park Service with administration of the Trail, and, therefore, whether the Forest Service lacks authority to grant pipeline rights-of-way across the Trail pursuant to the Mineral Leasing Act," reads a section of the brief filed by William S. Eubanks II of the Fort Collins, Colorado, law firm of Eubanks & Associates, LLC. "In the Mineral Leasing Act, Congress stated that '[r]ights-of-way through any Federal lands may be granted by the Secretary of the Interior or appropriate agency head,' but explicitly exempted from that authority all pipeline rights-of-way in or through 'lands in the National Park System. . . .'

"Petitioners’ flimsy arguments that the Appalachian Trail does not constitute 'land[ ] within the National Park System' are legally and factually groundless."

Theresa Pierno, NPCA's president and CEO, said allowing the pipeline project to proceed without Congress's explicit approval would be disastrous.

“Dominion Energy’s latest reckless proposal is a massive pipeline through a much-beloved national park site. If allowed, the Atlantic Coast Pipeline would set a dangerous precedent by enabling corporations to irresponsibly develop public lands that belong to all of us," she said. "The law is clear – developers cannot slice through federal lands in national park sites without explicit approval from Congress. In fact, the law was specifically written to protect parks from this kind of activity, and developers do not get to circumvent the law to serve their own needs. That’s not what parks are for."

Jarvis, who served as Park Service director during President Obama's two terms, added that, "(T)he Appalachian Trail is a jewel in our National Park System, offering hikers over 2,000 miles of scenic vistas and stunning landscapes. Millions of visitors each year seek out the peace and tranquility along this wild and undeveloped trail and hundreds of thousands of volunteers give their time to maintain the footpath. The idea that a massive corporation could run a pipeline across this trail and carve up such a beautiful and unspoiled landscape is appalling. Other options for their pipeline were available."

"Constant vigilance will be required on the part of Trail enthusiasts and managers to have a shot at securing the Trail’s long-term protection, even with its elevated standing as a unit of our national park system. Adherence to existing federal protections is essential," said Underhill.

In 2017, the Federal Energy Regulatory Commission granted Atlantic Coast Pipeline LLC (Atlantic) authorization to construct, operate, and maintain a natural gas pipeline that would cross the Appalachian Trail at points located within the George Washington and Monogahela National Forests. After a review process, the Forest Service authorized Atlantic to proceed with construction of the pipeline, finding it had authority under the Mineral Leasing Act to grant a right-of-way for the pipeline and that the pipeline “would have no long lasting impacts” on the Trail.

Cowpasture River Preservation Association and others filed a petition in the U.S. Court of Appeals for the Fourth Circuit for review of the Forest Service’s record of decision and special use permit. The court granted the petition, vacated the record of decision and special use permit, and remanded to the Forest Service. Notably, the court determined that the Forest Service lacked authority to grant the right-of-way under the Mineral Leasing Act because the Appalachian Trail is a “unit” of the National Park System. The court determined that the Mineral Leasing Act “specifically excludes” the Trail “from the authority of the Secretary of the Interior ‘or appropriate agency head’ to grant pipeline rights of way.” -- Oyez