Subscribe for updates
Recent Posts
- When Does NEPA Apply? The Eleventh Circuit Draws a Hard Line in Friends of the Everglades v. DHS
- Supreme Court Broadly Interprets “relating to” in Federal Officer Removal Statute
- Pennsylvania Federal Court Clarifies HSCA Statute of Limitations and “Response Costs” Under HSCA and CERCLA
- New Jersey Federal Court Dismisses PFAS Consumer Suit Against Band-Aid on Standing Grounds
- Massachusetts Federal Court Concludes that Biopellets Containing PFAS are “Useful Products,” Providing Defense to Superfund Liability
Topics
- Venue
- State Implementation Plans
- NJDEP
- Pollutants
- Connecticut
- Federal Land Policy and Management Act
- Agency Action
- Loper Bright
- Council on Environmental Quality
- Public Trust Doctrine
- New Jersey Civil Rights Act
- Title VI
- Environmental Justice
- Disparate Impact
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- FIFRA
- Federal Insecticide, Fungicide, and Rodenticide Act
- Georgia
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- National Priorities List
- Vapor Intrusion
- Solvents
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Operator Liability
- Potentially Responsible Parties
- Federal Circuit
- Environmental Covenants
- Divisibility
- Apportionment
- National Contingency Plan
- Strict Liability
- Water Pollution Control Act
- Utilities
- Historic Resources
- Public Utilities Commission
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Fees
- Commonwealth Court
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Gold King Mine
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- FERC
- National Forest Management Act
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- Building Materials
- Property Damage
- First Circuit
- PCBs
- Groundwater
- Natural Resource Damages
- Innocent Party
- Brownfield
- Brownfields
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- TMDL
- Stormwater
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Hearing Board
- Civil Penalties
- Clean Streams Law
- Arranger Liability
- Retroactive
- Sovereign Immunity
- Stigma
- Fair Market Value
- Damages
- Tax assessment
- Property Value
- Storage Tank
- Fifth Circuit
- Energy
- Electric
- Indemnification
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Procedure
- Natural Gas
- Contamination
- Residential
- Inspection
- Freshwater Wetlands Protect Act
- New York
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- Federal Energy Regulatory Commission
- Hazardous Air Pollutants
- HAPs
- D.C. Circuit
- Mercury
- Condemnation
- Takings
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Causation
- Spill Act
- NEPA
- Interior
- Mineral Leasing Act
- Tenth Circuit
- California
- Zoning
- Act 13
- Duty to Defend
- Insurance Coverage
- Landfill
- Eminent Domain
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Diligent Prosecution
- Citizen Suit
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Navigability
- Montana
- Equal-Footing Doctrine
- Riverbed
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Enforcement
- Delay Notice
- Equity
- Laches
- CISWI
- Rulemaking
- Consent Decree
- Boiler MACT
- EPA
- Second Circuit
- Declaratory Relief
- Contribution
- Standing
- NPDES
- Dimock
- Medical Monitoring
- Legislation
- Case Update
- Dukes
- Certification
- Louisiana
- CLE
- Decisions of Note
- Discovery
- Cases to Watch
- Privilege
- Work Product
- Expert Witness
- Defense Costs
- Insurance
- Consultant Liability
- Negligence
- Response Action Contractors
- Remediation
- Rapanos
- Army Corps
- Donovan
- Kentucky
- Nuisance
- Hog Barn
- Trespass
- Odors
- Class Actions
- Farming
- Informal Agency Action
- ISRA
- New Jersey
- Administrative Hearing
- RCRA
- Emissions
- Cancer
- Air
- Combustion
- Railroad
- Waste
- CERCLA
- Speaking Engagements
- Third Circuit
- Toxic Torts
- Removal
- Federal Procedure
- Title V
- Statute of Limitations
- Permits
- Clean Air Act
- Cleanup
- Superfund
- Cost Recovery
- Supreme Court
- Camp Lejeune
- Tolling
- Statute of Repose
- Multi-District Litigation
- Due Process
- Mineral Rights
- Clean Water Act
- Wetlands
- Enforcement Action
- Marcellus Shale
- Deeds
- Administrative Procedures Act
- Drilling
- Leases
- Oil and Gas
- Royalties
- Real Estate
- Exploration
Blog editor
Blog Contributors
Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA).
As we wrote in 2018 the Fourth Circuit held, inter alia, that the Forest Service lacked statutory authority to grant a pipeline right-of-way to Atlantic Coast Pipeline through the George Washington National Forest and, more particularly, crossing under the Appalachian Trail. Specifically, the plaintiffs argued, and the Fourth Circuit agreed, that because the National Trail Systems Act grants authority over the Appalachian Trail to the Park Service, the Forest Service could not lease land under the Trail to Atlantic Coast Pipeline. As the MLA’s grant of the right to lease Federal land for pipeline purposes expressly excludes land owned by the Park Service, the Fourth Circuit’s decision doomed the pipeline as routed. After the Fourth Circuit denied to rehear the matter en banc, the Forest Service and Atlantic petitioned the Supreme Court for certiorari.
In the opinion, Justice Thomas dispensed with the question before the Court in a very straight-forward manner. He emphasized that the granting of a right-of-way from the Forest Service to the Park Service for purposes of the Trail’s route did not, itself, constitute transfer of the land or of jurisdiction thereover. Likening this transfer to the granting of an easement across private property, which under common law is not considered a transfer of the underlying property rights themselves, Justice Thomas found it common sense that the right-of-way agreement between the federal entities did not convert the land into Park Service property. In short, “the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service.” (Slip op., p.10).
The Court also, briefly, buttressed its decision by citing to the Trails Act for the limited role played by the Park Service in administering the Trail, thereby undercutting arguments that the land was “really” Park Service land. Further, the opinion points to other statutes where Congress explicitly transferred the authority over specified land from one government agency to another. Because Congress had not explicitly done so here, Justice Thomas held that the Court cannot assume that such an action was intended.
The dissent, written by Justice Sotomayor and joined only by Justice Kagan, sharply disagreed, finding that, as the Appalachian Trail is administered by the Park Service, and as such is Park Service land, which is outside of the scope of land upon which mineral leasing rights can be granted. The dissent further distinguished the private-property comparison by emphasizing that all of the lands here belong to the federal government and thus analogizing to two separate property-right holders is inapposite.
This decision is not, however, the end, or beginning, of the story for the construction of the pipeline. The Fourth Circuit had also held that, even assuming the MLA applied, the National Forest Management Act and the National Environmental Policy Act had been violated in granting the special use permit and right-of-way. The Supreme Court’s decision thus returns the case back to the Fourth Circuit and, presumably, the Forest Service, to address these matters. Moreover, it is unclear how broadly this opinion will impact the permitting and construction of oil and gas pipelines more generally. If it does, the effect will be more profoundly felt in the West and Mountain West, where the presence of trails administered by the National Trails System is much more prevalent and a larger percentage of the land is held by the federal government.
