Legal Newsline

Wednesday, April 1, 2020

Industry reps argue U.S. Forest Service, not National Parks Service, should determine route of natural gas pipeline

Federal Court

By John Breslin | Mar 9, 2020


WASHINGTON (Legal Newsline) – An appeals court made a judgment contrary to the wishes of Congress and the Executive Branch when it effectively barred the construction of a natural gas pipeline, according to a group of trade associations.

In a brief filed with the U.S. Supreme Court, the National Association of Manufacturers and 20 other organizations argued for the overturning of a decision by the U.S. Court of Appeals for the Fourth Circuit. 

Oral arguments were recently heard by the U.S. Supreme Court, which will decide which agency – the U.S. Forest Service or the National Parks Service – has primacy in deciding whether the 605-mile pipeline should be built along its planned route. The Forest Service supports the construction of the pipeline, while the Parks Service believes it should not cut across and under the Appalachian Trail, which the former agency manages.

The review follows a Fourth Circuit decision that ruled the Forest Service did not properly consider other routes, that federal law barred energy development along the trail, and that the National Parks Service was the proper agency to make this decision.

The proposed Atlantic Coast Pipeline would cross three states, bringing natural gas from West Virginia through Virginia to ocean ports in North Carolina.

"For decades, including in this case, Congress, the U.S. Forest Service, the U.S. Park Service, and the entire federal government uniformly and sensibly recognized the Forest Service’s authority to grant rights-of-way within Forest Service lands, including beneath designated surface trails," the brief argued. 

"Yet here the 4th Circuit upset that equilibrium by erroneously endorsing respondents’ novel arguments designed to stymie critical energy pipeline development, the 4th Circuit unilaterally divested the Forest Service of jurisdiction."

The court of appeals "effectively transferred those lands to the Park Service, thereby precluding the Forest Service or any other agency from granting pipeline rights-of-way, and frustrating other rights-of-way as well," the brief argued.

The brief further underscores for the Supreme Court the legal and practical unworkability of the Fourth Circuit's unprecedented statutory interpretation that threatens the development of critically needed pipelines and other infrastructure crossing lands beneath national trails within national forests.

Among the others signing the brief is the U.S. Chamber of Commerce. Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.

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Organizations in this Story

National Association of ManufacturersU.S. Supreme Court