By Brendan Mysliwiec, ATC Director of Federal Policy and Legislation
The Cowpasture Decision
August 30, 2019
Update July 5, 2020: Dominion Energy and Duke Energy announced that they were canceling the Atlantic Coast Pipeline project.
Update June 15, 2020: The Supreme Court rendered its decision in the case of United States Forest Service, et al. v. Cowpasture River Preservation Association, et al., rescinding the decision of the Fourth Circuit Court of Appeals. Read our statement on the decision by clicking the button below.
On June 25, 2019, Atlantic Coast Pipeline, LLC filed a petition for a writ of certiorari from the United States Supreme Court to review Cowpasture River Preservation Association, et al. v. United States Forest Service (a.k.a. Cowpasture).
What does the Cowpasture decision say?
On December 13, 2018, the Fourth Circuit Court of Appeals delivered its decision in Cowpasture River Preservation Association, et al. v. United States Forest Service, determining that the Forest Service does not have the legal authority required to issue a permit under the Mineral Leasing Act for a natural gas pipeline under the A.T. Under the National Trail System Act, the Trail is administered as a unit of the National Park System, and Cowpasture concluded that only the National Park Service may issue a permit under the Mineral Leasing Act. Because there must be a specific Act of Congress (federal law) granting the Park Service the authority to issue such a permit, the Fourth Circuit determined that it is legally impossible for a natural gas pipeline to be permitted on federal land over which the A.T. crosses within the Fourth Circuit (limited to Maryland, West Virginia, Virginia, and North Carolina). Cowpasture represents a significant barrier to the construction of the Atlantic Coast Pipeline (ACP) and the Mountain Valley Pipeline (MVP).
What does the Cowpasture decision mean for the A.T.?
The Cowpasture decision has presented fundamental challenges to the cooperative management system that A.T. managers have used since before the Trail was blazed. “Cooperative management” means that even though the Trail is a unit of the National Park System under the National Trail System Act, jurisdictions through which the Trail crosses have primary responsibility for managing their sections of Trail. Cowpasture is a step toward removing the primacy of the non-Park Service land managers and isolating it (and in the case of permitting natural gas pipelines, eliminating it) within the Park Service. (We will be sharing more on cooperative management and the unique national park status National Trails have, so stay tuned.)
While the cooperative management system has at times enabled activity on Forest Service land that is not allowed on Park Service land), it has enabled the many communities as well as the 7 National Forests, 6 non-A.T. Park units and 2 National Wildlife Refuges the A.T. traverses to make the best decisions for their communities, something we respect very highly at the ATC. The Cowpasture decision has altered the Forest Service’s historical authority on Forest Service lands within the Fourth Circuit. The impacts of the Cowpasture can only be altered by the Supreme Court or the U.S. Congress.
What is certiori?
Because the Supreme Court is empowered to decide which appellate cases it hears, for a case to be appealed from one of the 13 federal Circuit Courts or any state’s supreme court, the U.S. Supreme Court must grant a writ of certiorari. The writ is the legal authority the Court grants to allow a case to be tried before it.
The U.S. Supreme Court issues very few writs of certiorari and usually does so only if a case fits one (or more) of three criteria: critical national importance; legal novelty; or to resolve a disagreement between two or more of the federal Circuit Courts. If the U.S. Supreme Court does not issue the writ of certiorari and overrule the Fourth Circuit in Cowpasture, the U.S. Supreme Court may need to wait until another federal Circuit Court delivers a decision disagreeing with the Fourth Circuit before that decision may be reviewed.
What happens now?
Now we wait for the Supreme Court to issue its decision. The Court comes back into session in October and will begin issuing writs or denying the petitions for writs as soon as it is back.
The Supreme Court agreed to hear the appeal from the Fourth Circuit Court of Appeals’ decision on how energy infrastructure is sited across the Appalachian Trail. Read our statement about it here.