June 16, 2020 –
By The Editorial Board
June 15, 2020
Opponents of fossil fuels will go to great lengths to stop production, and on Monday they took a deserved drubbing at the Supreme Court. A 7-2 majority ruled that the Appalachian Trail, a 2,200-mile footpath from Maine to Georgia, is not an impassable barrier to natural-gas pipelines.
The planned Atlantic Coast Pipeline, meant to carry natural gas from West Virginia to North Carolina, would pass under the Appalachian Trail within the George Washington National Forest. It would be drilled hundreds of feet below the trail’s surface, and its entry and exit points would be invisible to hikers.
The U.S. Forest Service approved the plan, but climate activists sued. They argued that because the Appalachian Trail is administered by the National Park Service, it counts as Park System lands. If so, then no federal agency would have the authority to permit the pipeline crossing. An appellate court accepted this theory in a ruling that—no kidding—quoted “The Lorax,” a children’s book by Dr. Seuss.
Justice Clarence Thomas made short work of the argument in U.S. Forest Service v. Cowpasture River Preservation Association. “If a rancher granted a neighbor an easement across his land for a horse trail,” he wrote, nobody would 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.” The same principle applies when the Forest Service grants a “right-of-way” under the Trails Act of 1968.
The land is still maintained by the Forest Service, as the government’s advocate explained during oral argument: “If a tree falls on forest lands over the trail, it’s the Forest Service that’s responsible for it. You don’t call the nine Park Service employees at Harpers Ferry and ask them to come out and fix the tree.”
The theory that pipelines can’t pass the Appalachian Trail, Justice Thomas wrote, “would apply equally to all 21 national historic and national scenic trails currently administered by the National Park Service.” Where a trail traverses state or private properties, those might also be considered “lands in the National Park System.” The facts, Justice Thomas concluded, “simply cannot bear the weight” of the Lorax interpretation.
Justices Sonia Sotomayor and Elena Kagan dissented, arguing that the trail is, by definition, land in the Park System, though it might also still be counted as land in the Forest System. That view would halt the Atlantic Coast Pipeline and who knows how many other projects. But seven Justices delivered a victory for common sense—and a defeat for those who want to shut down U.S. energy production.
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