1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?

Here, a pipeline company obtained a right-of-way from the Forest Service for a 0.1-mile section of a 600-mile pipeline to pass underneath the Appalachian Trail. Conservation groups challenged the Forest Service’s approval, arguing that the DOI’s National Park Service (NPS) had jurisdiction over the trail. In 2018, the Fourth Circuit ruled that the Forest Service did not have jurisdiction to approve the right-of-way over the trail because the NPS controls the Appalachian Trail.

SCOTUS disagreed and reversed the Fourth Circuit’s ruling, distinguishing the Appalachian Trail from the land it sits on. Writing for the majority, Justice Clarence Thomas stated that the Forest Service’s grant of an easement to the DOI did not include the land under the trail. While the Appalachian Trail is under the jurisdiction of the NPS (under the DOI), the land beneath it remains under the Forest Service’s control. As such, the Forest Service retained authority under the MLA to grant a right-of-way for the pipeline to cross the trail.

Justices Sonia Sotomayor and Elena Kagan dissented and argued that federal law does not distinguish between the terms “trail” and “land.” In her dissent, Justice Sotomayor stated that the National Park Service Organic Act defines the park system as any land administered by the Secretary of the Interior through the NPS and not covered by the MLA. Because the NPS maintains the trail, it has rightful jurisdiction over it and the land beneath it.

Although SCOTUS confirmed the pipeline company’s right-of-way permit, the company still has a number of other permits to obtain, including permits for impacts to endangered species, forestland, and water crossings. Additionally, lawsuits challenging the Federal Energy Regulatory Commission’s (FERC) approval of the pipeline that were on hold pending the SCOTUS outcome will now proceed.

2. Justices Request Solicitor General Input Regarding the Power to Condemn State-Owned Property under the Natural Gas Act

On June 29, 2020, SCOTUS invited the solicitor general to file a brief expressing the views of the U.S. government on an appeal from a Third Circuit ruling that the Natural Gas Act (NGA) does not allow developers to seize land owned by New Jersey. Although SCOTUS has not granted cert in this case, requesting a brief from the solicitor general indicates the Court’s interest in this case.

Initially, a New Jersey district court held that a pipeline company had the federal government’s authority to condemn land owned by the state of New Jersey under the Natural Gas Act (NGA). There, the court reasoned that the federal government delegated its power of eminent domain to the company through its certificate of construction from FERC. As a result, the court concluded that the pipeline company had the power to condemn both private and state-owned land.

However, on September 10, 2019, the Third Circuit reversed the district court’s ruling, holding that, although the NGA may delegate the federal government’s power of eminent domain, nothing in that act delegates the federal government’s authority to override a state’s Eleventh Amendment immunity for purposes of private eminent domain. Therefore, the court concluded that the pipeline company could not condemn state-owned land.

The pipeline company has appealed the case to SCOTUS, arguing that the Third Circuit’s decision effectively invalidates the NGA. It argues that under the act, Congress intended to authorize the condemnation of all property necessary to construct a pipeline authorized by FERC. In response, New Jersey argues that the Third Circuit correctly concluded that the act does not overcome the state’s Eleventh Amendment immunity.

At this time, the solicitor general has not filed a brief in response to the Court’s request.

3. Request to Stay the Injunction of the Army Corps of Engineers’ Nationwide Permit 12 Pending Appeal

On June 15, 2020, Solicitor General Noel Francisco filed an application for a stay pending appeal requesting that SCOTUS freeze a district court order enjoining a streamlined water permitting process for new pipelines under the Clean Water Act.

The U.S. District Court for the District of Montana issued the contested order in April 2020. There, the court enjoined the U.S. Army Corps of Engineers from utilizing its Nationwide Permit 12 program to issue fast-tracked approval for pipeline water crossings. The Court concluded that the Army Corps had failed to meet its obligations under the Endangered Species Act (ESA).

The Army Corps appealed the decision, requesting that the Ninth Circuit reinstate the Nationwide Permit while the appeal progresses; however, the Circuit Court denied this request in May 2020.

Following this denial, Solicitor General Francisco, joined by 18 states, requested that Justice Elena Kagan freeze the lower court order blocking this permit. Justice Kagan handles petitions arising from the Ninth Circuit.

On June 14, 2020, Justice Kagan requested that environmental groups respond by noon on June 29, 2020. In their brief, environmental groups argued that reinstating Nationwide Permit 12 would frustrate the purpose of the ESA.

Justice Kagan may issue the requested stay on her own or may involve the rest of the Court. At this time, no decision has been issued.