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George Washington National Forest, site of the Atlantic Coast Pipeline Photo: Becky Sullivan, NPR
The Supreme Court by a 7-2 majority handed the Old Appalachian Trail, national parks and trails, and their visitors a major setback, ruling yesterday that the Forest Service has the authority to permit a pipeline to be constructed underneath the trail despite the objection of the agency that manages it as a national park “unit,” the National Park Service. The Atlantic Coast Pipeline’s construction is still in doubt due to the many other permits it has been fighting (often unsuccessfully) to obtain. Unfortunately, the Court’s decision “paves the way” for other pipelines or similar types of development to cross beneath or through national parks or trails that may be bounded by land owned by other federal agencies.
Why This Matters: Conservatives often make the slippery slope argument opposing parks when they are created — that is exactly what fishers claimed to persuade President Trump to allow fishing inside the NE Canyons and Seamounts Marine National Monument last week. The law contains a bright-line prohibiting mining and other types of “extraction” in national parks for a reason — they are supposed to be free from potentially harmful development so they can be conserved for future generations. This decision creates the very type of slippery slope the law preserving National Parks was trying to prevent. America’s best idea should not be compromised.
The Court’s Rationale
The case appeared to many to be just a bureaucratic squabble between two government agencies with conflicting authorities and purposes. The National Forest Service, while providing recreational opportunities on their lands, is explicitly in the business of permitting timber harvesting, grazing, and even energy development on the lands they manage – they allow extraction. National Parks, on the other hand, are in the business of conservation, and though they allow some developments (like concessionaires) within parks, the law does not allow extractive activities so that the public can experience “the scenery, natural and historic objects, and wildlife” in ways “as will leave them unimpaired for the enjoyment of future generations.”
The problem, in this case, is that the Old Appalachian Trail is like a ribbon that cuts across the George Washington National Forest and the question is which agency has the right to control what happens under the trail. The Justices sided with the Forest Service, holding that “the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System. Accordingly, the Forest Service had the authority to issue the permit here.” The pipeline will be built and pass several hundred feet underneath the trail, so the Justices decided that the earth under the Trail is not controlled by the Park.
In dissent, Justice Sotomayor fundamentally disagreed with the majority’s hypertechnical reading of the statutes involved. She said, “The Court strives to separate ‘the lands that the Trail traverses’ from ‘the Trail itself,’ reasoning that the Trail is simply an ‘easement,’ ‘not land.’ … In doing so, however, the Court relies on anything except the provisions that actually answer the question presented. Because today’s Court condones the placement of a pipeline that subverts the plain text of the statutes governing the Appalachian Trail, I respectfully dissent.”
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