U.S. Supreme Court Okays Tunneling Pipeline under the Appalachian Trail
Dr. James J. S. Johnson
(attorney admitted to bars of Texas & Colorado)
In all thy ways acknowledge him, and he shall direct thy paths. (Proverbs 3:6)
Earlier this month (June 15, 2020), the U.S. Supreme Court reversed a federal appellate court ruling that previously prohibited the new Atlantic Coast Pipeline from being laid under part of the Appalachian Trail.(1)
Environmentalist groups, as well as hiking enthusiasts, had protested how the proposed “Atlantic Coast Pipeline” would be constructed to run underneath part of the historic Appalachian Trail.(2) The pipeline construction company, however, prevailed in court.
Dominion Energy, which has partnered with Duke Energy, to build the 600-mile pipeline from West Virginia to northeastern North Carolina, welcome the high court’s ruling as an ‘affirmation’. Dominion spokesman Aaron Ruby noted that 50 other pipelines ‘have safely crossed under the Trail without disturbing its public use.’ The pipeline will be installed hundreds of feet below the trail’s surface, he said, and emerge more than a half-mile away on either side.(2)
The Appalachian National Scenic Trail (“Appalachian Trail”), which is older than the USA, is perhaps the most famous and best-loved of America’s hiking trails. Hiking trails, as this author has recently reported, provide wonderful opportunities for appreciating God’s creation.(3)
But what relevance to Biblical Christians is there to an environmental lawsuit about flowing petroleum products under a famous mountain hiking trail?
The proposed subterranean pipeline involves some $8 billion in projected costs, to convey natural gas across part of the commonwealth of Virginia.(2) All of the physical land (in controversy) belongs the U.S. government—specifically, the land in question is allocated (by Congress) to the George Washington National Forest in central Virginia. The U.S. Forest System is part of the U.S. Department of Agriculture.(4)
As such, the legal presumption is that such federal land can be used for commercial purposes, if doing so is a responsible “wise use” of the land, providing public benefit and avoiding reckless waste of resources.(1),(4)
U.S. Forest Service-managed lands routinely lease to private businesses, for timber and other commercial uses, so long as the U.S. government benefits from the contracted uses. So, there is no big surprise when part of a national forest is contractually leased to a private business (for ranching, timber, or petroleum operations), so long as the government contracting system benefits the USA.(4)
However, the complicating legal factor, in this equation, is that a segment of the multi-state Appalachian Trail cuts through the George Washington National Forest. That historic trial is itself declared—by congressional action—as a natural resource to be administered by the National Park Service, which is part of the U.S. Department of the Interior.(2)
Federal “park” lands are not the same as federal “forest” lands. Federal lands assigned to the U.S. Park Service are not routinely leased, for subterranean activities, to private businesses for commercial development.(1),(4)
Unsurprisingly, the multi-purpose “wise use” standards used in federal forests (by the U.S. Department of Agriculture) are not the usual “preservationist” property use norms applied by National Park Service (of the U.S. Department of the Interior), so there is a jurisdictional overlap that complicates how the federal government can manage the physical trail-within-forest land involved.(1),(4)
Further complicating this multi-agency “turf” dispute is the combination of federal statutes (i.e., laws passed by Congress) that conditionally permit and/or prohibit what uses can be made of “lands” managed by the Forest Service, versus those administered by the Park Service.(1)
Meanwhile an $8 billion project pivoted on this terminology question: is the Appalachian Trail a long piece of federal “land” assigned to the Park Service?(2)
In short, the majority vote in the U.S. Supreme Court decision said No, thereby determining that the pipeline could pass underneath the Appalachian Trail, because the scenic hiking trail was not itself a physical piece of “land”.
We are tasked with determining whether the Leasing Act [of 1920] enables the Forest Service to grant a subterranean pipeline right-of-way some 600 feet under the Appalachian Trail. To do this, we first focus on the distinction between the lands that the Trail traverses and the Trail itself, because the lands (not the Trail) are the object of the relevant statutes.(1)
Rather, the trail was deemed a passage-way through (and over) land, what the law calls an “easement” (or “right-of-way”)—similar to how rural streets are access-ways that separate neighbors, but the physical land itself (under the traveled road) is considered to be owned by the property-tax-paying landowners who border the roadway. (This was the law, in 1968, when the Forest Service granted a trail-administering “right-of-way” easement unto the Park Service.)
Pursuant to the Trails Act, the Forest Service entered into “right-of-way” agreements with the National Park Service “for [the] approximately 780 miles of Appalachian Trail route within national forests,” including the George Washington National Forest. … A right-of-way is a type of easement. In 1968, as now, principles of property law defined a right-of-way easement as granting a nonowner a limited privilege to “use the lands of another.” … Specifically, a right-of-way grants the limited “right to pass … through the estate of another.” Black’s Law Dictionary 1489 (4th ed. 1968). Courts at the time of the Trails Act’s enactment acknowledged that easements grant only nonpossessory rights of use limited to the purposes specified in the easement agreement. … Stated more plainly, easements are not land, they merely burden land that continues to be owned by another.(1)
Here is how the judicial majority summarily explained their decision:
In sum, read in light of basic property law principles, 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. To restate this conclusion in the parlance of the Leasing Act, the lands that the Trail crosses are still “Federal lands” … and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail. Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.(1)
Now, there is an aspect of this analysis that should catch the attention of Biblical Christians—this ruling reminds us that forested land (“real property”) may be itself physical matter, yet the right or opportunity to travel through that forested land is not itself physical material.
An entitlement to hike along (i.e., upon) a particular trail is an “easement” (a/k/a “right-of-way”), a non-physical right to travel under certain conditions (such as traveling without causing waste, during certain timeframes, etc.). But the opportunity to hike on a mountain trail is not itself a physical thing, like a rock or tree or hard-packed soil.
Likewise, our human lives—as living creatures specially created in God’s image—are more than just our physical bodies. Yes, part of us is physical—God made us from dust of the earth. Yet God added to that physical stuff non-physical personal lives—which can be described by words like soul, spirit, personality, etc.—which is the part of us finite creatures that somehow shows a hint of our infinite God.(5)
So, when you take your next nature hike—take time to observe the wide and wild variety of physical animals (like bees, bunnies, and butterflies—or June-bugs, jaybirds, and jaguarundis)—interacting with physical plant-life (like trees, bushes, grasses, flowers)—within the geophysical environment (including rocks, soils, sunlight, rain, freshwater streams). Appreciate God’s caring handiwork!(3)
But don’t stop there! Appreciate also your own human activity of walking, hiking, strolling.
A simple nature walk in your neighborhood—or hiking a mountain trail—is an opportunity to be grateful for that moment that God has given you.(3),(4),(5)
That very opportunity is taken (or neglected) within a physical context of time and space, yet the opportunity itself is not physical. The opportunities that God gives to us are intangible blessings—they are like easements—we can use them or lose them, but they are not physical stuff that we can store inside a garage.
Part of storing up treasures in Heaven involves recognizing and using our God-given opportunities to honor the Lord Jesus Christ here on Earth.(6),(7)
Even taking a walk, where you are now, can become an opportunity to see God’s glory in the so-called little things—details of His magnificent creation. It’s not necessary to go hike the Appalachian Trail to see God’s artistry in what He has made.(7)
- U.S. Forest Service v. Cowpasture River Preservation Association, 2020 WL 3146692, ___ S.Ct. ___ (June 15, 2020), reversing 911 F.3d 150 (4th Cir. 2018). Justice Thomas used this comparison: “If analyzed as a right-of-way between two private landowners, determining whether any land had been transferred would be simple. If a rancher granted a neighbor an easement across his land for a horse trail, no one would think that the rancher had conveyed ownership over that land. Nor would anyone think that the rancher had ceded his own right to use his land in other ways, including by running a water line underneath the trail that connects to his house. … Likewise, when a company obtains a right-of-way to lay a segment of pipeline through a private owner’s land, no one would think that the company had obtained ownership over the land through which the pipeline passes. Although the Federal Government owns all lands involved here, the same general principles apply.”
- Wheeler, T. B. 2020. Supreme Court Rules Pipeline Can Cross Under Appalachian Trail. Chesapeake Bay Journal (June 16, 2020), posted at https://www.bayjournal.com/news/energy/supreme-court-rules-pipeline-can-cross-under-appalachian-trail/article_531842f4-afd0-11ea-8bd4-cf3bc0da0e9a.html .
- Johnson, J. J. S. 2020. Sweden’s Fun in the Sun, Nature Hiking. Creation Science Update (June 5, 2020), posted at https://www.icr.org/article/sweden-fun-in-the-sun-nature-hiking .
- Johnson, J. J. S. 1995. Introduction to Environmental Studies, An Interdisciplinary Analysis of Applied Ecology, Conservation Policy, and Environmental Ethics. Dallas: NWQD Press, LeTourneau University. Regarding the roles of the U.S. Forest Service and National Park Service, see especially pages 57-76. Regarding hiking the Appalachian Trail, see pages 1-9 of Appendix F.
- Genesis 1:26-27; Psalm 102:18. See also Johnson, J. J. S. 2012. Grackles and Gratitude. Acts & Facts, 41(7):8-10, posted at https://www.icr.org/article/grackles-gratitude/ .
- Matthew 6:19-21.
- Revelation 4:11.