Legal Docket - A pipeline fight at the Appalachian Trail

NICK EICHER, HOST: It’s Monday morning and time to get back to work for The World and Everything in It. Today is the 2nd of March, 2020. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

EICHER: Welcome back from your DC trip!

REICHARD: Yes, great, great trip, but glad to be home and back to my regular routine.

Maybe you know my practice is to wait for the Supreme Court to release transcripts and tape of the oral arguments online Friday, and then write up my Legal Docket reports over the weekend. Sometimes I can get a little ahead but not this week.

Of course, Nick, you know that quite well, as my editor. 

But I bring that up to say, going to Washington was an opportunity to view oral arguments in person, right in the Supreme Court.

It was an interesting view, but my usual practice, frankly, is more efficient: fewer distractions!

EICHER: More efficient in your own office than right there at the court. What kind of distractions would you say?

REICHARD: Oh, good distractions, the visuals. The building itself is beautiful. I think for me, to watch the justices and see their individual mannerisms unfold held my interest as much as did the arguments.

EICHER: What was most striking to you?

REICHARD: So, Justice Clarence Thomas, for example. I noticed how he likes to lean back in his chair, and he often covers his eyes with his hands. Justice Samuel Alito also leans back a lot and he often looks up at the ceiling when he’s thinking.

Justice Neil Gorsuch rests his chin on his hand and looks down at paperwork on his desk for long stretches. Like the sort of judge you’d cast in a movie, sort of chiseled from Supreme Court marble. 

And Justice Ruth Bader Ginsburg. I mean this with the utmost respect. Brilliant legal mind. She’s an intellectual giant, but a tiny person. The enormous chairs the justices sit in, her’s just seems to swallow her up. Except for when she stood up, I never actually saw her face, just her hair. And I did notice the difficulty she had standing up from her chair. I saw a hand reaching out from behind the bench to steady her as she came off the dais.

Bottom line, I felt compassion toward them, nine image-bearers just doing the work they were meant to do.

EICHER: Glad you did that, and I’ll add: the purpose of the trip was to connect with your other legal eagle, Jenny Rough, a fellow lawyer, and your partner in a project we’re all really looking forward to: a stand-alone Legal Docket podcast that we’ll release in the summer. 

You two spent the week working on that project: Starting in July, we’ll do 10 big episodes, taking a deep dive into what we think are the 10 biggest, most significant cases of the term. 

No pressure, Mary, but this is going to be great!

REICHARD: Gulp. A little nervous, if I’m being honest, you know this, Nick. It’s a big project and Jenny and I could use some prayers. We’ve been blessed to receive some positive attention in the legal-journalism community for our work, and we want to bring glory to God in everything we do including this new program.

Now, let me say, too, that before we tackle today’s argument, the justices handed down seven opinions last week, and I’ll have a summary of those for you tomorrow.

Today, I want to tell you about the court battle last week that really brought out the crowds. No empty seats in the courtroom. 

It puts preservation of wilderness up against the building of infrastructure. 

Here’s some background.

Think about the Appalachian Trail. It’s a 2,200 mile trail that traverses 14 states, from all the way down in Georgia to all the way up in Maine. More than a million people hike parts of the Appalachian Trail every year. 

It’s beautiful and so many people treasure that natural world and want it preserved.

EICHER: But think also about the millions more people who live on the Eastern Seaboard and need power to fuel their daily lives.

Delivering that energy requires infrastructure. Now, some natural gas pipelines already exist that cross the Appalachian Trail. Almost all of them are on private or state land. 

The dispute before the Supreme Court is over a proposed pipeline that will go under the part of the Appalachian Trail that is in the George Washington National Forest. The federal government, specifically, the U.S. Forest Service, administers that forest as well as another 150.

REICHARD: The Forest Service granted the license to do this work two years ago. But environmental groups sued to stop it. They argue the Forest Service lacked authority to approve the pipeline. That’s the ambit of the National Park Service, they say, not the National Forest Service.

Two lawyers argued in favor of allowing the pipeline: one for the pipeline builder and one for the government. I’ll start with the lawyer for the federal government, Assistant to the Solicitor General Anthony Yang. His argument is that the trail is not land within the meaning of relevant law. Yang thinks about it this way: the park service administers the trail, the forest service administers the land beneath it.

I noticed furrowed brows of justices trying to make legal sense of that concept. Lots of back-and-forth ensued, so I’ve edited to help you follow the flow of the argument. First you’ll hear Justice Elena Kagan, who questions government lawyer Yang:

KAGAN: I don’t know really quite how to say it except that nobody makes this distinction in real life. When you walk on the trail, when you bike on the trail, when you backpack on the trail, you’re backpacking and biking and walking on land, aren’t you?

YANG: You’re certainly sometimes walking on land. You’re also walking on things like bridges. You’re also walking on—for instance, trails include waterways.

KAGAN: As a matter of plain English—I mean, both of your briefs are strange to read because you can’t ever just say what you mean…

Yang explained that land administration is a big area of the law, with several overlapping statutes. So you can’t just look at one or two in isolation. 

But Justice Sonia Sotomayor had a practical question.

SOTOMAYOR: Why is it that two agencies can’t have simultaneous 
administration, and even possibly management 
responsibilities?

Yang replied that can happen sometimes: for example, such as when the government withdraws land from public use and sets it aside for military use. But that’s not the case here.

Now I’ll bring in the other lawyer in favor of the pipeline, a Supreme Court regular, Paul Clement. He’s representing the pipeline builder. Clement argues the relevant text—and the consequences of a wrong decision—weigh in his client’s favor. 

The law, Clement says, distinguishes between the trail and the land it traverses. Remember we’re talking 22-hundred miles and a quarter million acres: it’s common for trees to fall and for rangers to have to reroute the trail. The status of the land shouldn’t change each time that happens. That tree is the Forest Service’s problem. But when it lands on the trail, it’s the Park Service’s problem. That’s the design. It changes nothing about the Forest Service’s responsibility to oversee the land overall.

And if the court hands victory to the environmental groups? Clement says that’ll create barriers to pipeline development.

Justice Alito got down to word meanings:

ALITO: When the statute says that park system consists of “lands administered by the Park Service,” does it mean administered in full, administered exclusively by the Park Service, or administered in any sense by the Park Service?

CLEMENT: I think if it has to mean one of those things, it probably means administered in full… . I don’t really think it’s as metaphysical as you think. I mean, the philosophers at the Park Service and the Forest Service haven’t had any problem with this for 50 years. They have dealt with the reality that the trail is, in an administrative sense, under the Park Service, but on a day-to-day basis, the lands stay where they are.

On the other side of these two was Michael Kellogg, arguing on behalf of the environmental groups. He took on a question Justice Breyer had asked earlier, about how far underground the pipeline would be. 

600 feet, Clement had answered, entering and exiting on private land. Justice Breyer seemed to take that as not a problem. But Kellogg took aim at that presumption using a law concerning the National Trails System:

KELLOGG: I want to go directly to the question of whether there’s an easy out in this case by saying it’s 600 feet under the ground, so it doesn’t count. I’ll call the court’s attention to 1248(a), which specifically says that rights of ways are to be granted by the secretary of the interior in this case for anything, “rights-of-ways upon, over, under, across, or along any components of the Appalachian Trail.”

So “under” counts… . Obviously the pipeline is going to go under those lands, but it’s the one who administers the surface of the lands.

The secretary of the interior is over the Park Service according to another law, so Kellogg’s argument is it’s the Park Service, not the Forest Service, that has say so over pipelines whether over, under, any which way along the Appalachian Trail. 

Several justices worried about creating a barrier to building infrastructure, and worried about the consequences of handing victory to the environmentalist groups: 80 percent of the Appalachian Trail runs through federal land. The remaining 20 percent is on state and private land. That’s a huge chunk of property to block from infrastructure.

The justices have no disagreement among the appellate courts to resolve, no circuit splits, as they’re known. They have no prior decisions to guide what they do now. 

But no doubt they took this case because of its importance to the country.

If I had to guess, based on questions alone, it seems to me the five conservative justices and maybe Justice Breyer are reluctant to stop development. So I predict a win here for the pipeline developers and the federal government.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Jan. 22, 2020, file photo, Night falls on the Supreme Court in Washington. 

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