On June 15, 2020, the Supreme Court released its decision in the case of United States Forest Service v. Cowpasture River Preservation Association. By a vote of 7-2, the judgment of the U.S. Court of Appeals for the Fourth Circuit was reversed, and the case remanded. Per Justice Thomas's opinion for the Court: "We granted certiorari in these consolidated cases to decide whether the United States Forest Service has authority under the Mineral Leasing Act, 30 U. S. C. §181 et seq., to grant rights-of-way through lands within national forests traversed by the Appalachian Trail. 588 U. S. ___ (2019). We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit." Justice Thomas's majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Gorsuch, and Kavanaugh in full, and by Justice Ginsburg as to all but Part III-B-2. Justice Sotomayor dissented, joined by Justice Kagan.
Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
Stephen A. Vaden, General Counsel, U.S. Department of Agriculture
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Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Decision teleforum on United States Forest Service v. Cowpasture River Preservation Association. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are fortunate to have with us the Honorable Paul Clement, who is a Partner at Kirkland & Ellis. We also have Stephen Vaden, who is General Counsel for the U.S. Department of Agriculture. After our speakers have their opening remarks on the case, we will then move to an audience Q&A portion. Thank you for sharing with us today. Stephen, the floor is yours.
Stephen Vaden: Well, thank you so much. It’s an honor to be here with you this afternoon and our Federalist Society listeners as well as with the great appellate lawyer Paul Clement to talk about this case that involved both of our efforts at the Supreme Court.
I’m going to start out by talking a little bit about the permitting process for any pipeline, which is what we’re talking about here in the Cowpasture River Preservation Association case. And the question before the Supreme Court was whether or not the Forest Service, which is a part of the Department of Agriculture, had the authority to issue a permit to allow this pipeline to cross the Appalachian Trail at a point inside the George Washington National Forest.
So for any pipeline project, in this case a natural gas pipeline, the company has to run the gamut of procedural hurdles in order to get all the necessary permits before they can proceed. Because we’re talking about a natural gas pipeline, the first place the company had to stop was FERC, the Federal Energy Regulatory Commission. That body, an independent agency, had to consider their application, determine whether or not the pipeline was necessary, come to an agreement on a route, and issue a permit.
But rather than being the ending of the process, that was merely the beginning because then came a series of other reviews, including environmental reviews caused by the National Environmental Policy Act, known as NEPA. Because it crossed Forest Service land in several different points, the Forest Service needed to do its own agency specific NEPA analysis. And because we’re crossing a national forest, and national forests are managed according to standards set out by the National Forest Management Act, we had to make certain here at USDA that the pipeline, going through the national forest where it was, was in compliance with that particular national forest management plan.
And then, of course, there may be endangered species along the way of a pipeline that may be affected. In order to study whether or not those effects would be allowable, the Endangered Species Act may require that the Department of Interior’s Fish and Wildlife Service, or if there are certain fish species, the Department of Commerce’s National Marine Fishery Service, may have to perform a biological opinion in order to render a judgement about the effect the pipeline may have on endangered species.
And if all of those points are met, and all of those permits are issued, plus any state or local permits that may be required along the way, then the pipeline may proceed. So as you can see, it is not an easy process to build a large interstate infrastructure project anywhere in this country, and pipelines are no exception to that. However, it is important to point out that these regulatory hurdles are the results of acts of Congress, and we in the agencies must apply these acts that Congress has passed faithfully.
With that background of the regulatory gauntlet that Paul and his client had to face, I’m going to turn it over to Paul for him to talk a little bit about this project and this pipeline in particular.
Hon. Paul Clement: So thank you, Stephen, very much for the handoff. And we’ll be handing it back and forth a couple of times during the course of this call as we give the background on various aspects of the case. I want to also echo that it’s a pleasure to be on this call and doing this call, and particularly want to single out Stephen for his leadership within the government on these issues.
As will become apparent, the litigation here was litigation that was brought by environmental groups against the Agriculture Department and the Forest Service as one of the number of agencies that needed to give their approval for this pipeline. And my client, the Atlantic Coast Pipeline consortium, intervened in that litigation and worked together with the Agriculture Department. And as will become clear, I think, from the call, the probably principal authority for pipelines and pipeline development in the federal government is not the Agriculture Department but FERC.
And I think it takes real vision for somebody at one of the other agencies whose interests are affected and ends up litigating these pipeline issues to recognize the importance of these issues and work internally within the government to encourage the case to be brought all the way to the Supreme Court. And I really want to single out Stephen for his leadership on that, and certainly my client is very appreciative of that.
In terms of the specific project here, this is a 600 mile pipeline that’s designed to bring natural gas from reserves in West Virginia where the natural gas is quite plentiful to consumers principally along the Eastern Seaboard in Virginia and North Carolina. And on that 600 mile route, there’s obviously a lot of different kinds of land that are traversed by the pipeline. Some of them are private lands, some are state lands, and some are federal lands. And this is also, I think, a particularly important pipeline because in addition to serving lots of more normal consumers, by virtue of where this pipeline goes in Virginia and North Carolina, this pipeline is also providing energy and, ultimately, electricity to a number of U.S. military installations.
And I think in that sense, it’s particularly important because some of those military installations, without this pipeline, are dependent on a single principal source of energy. And so this pipeline really does have some very important advantages, even from a national security standpoint. And all of that calculus, including the need for the pipeline and the like went into FERC’s decision to approve not just the pipeline but the specific pipeline route.
I just want to make two other points before kicking it back to Stephen. One is to underscore the point that he made about what a daunting perspective -- or rather, daunting prospect getting all the necessary approvals poses for a private pipeline consortium. These pipelines require an enormous amount of capital investment, and all of that capital investment has to be made against a backdrop of needing all of these various regulatory approvals and the reality that opponents of the pipeline can pick of any one of those regulatory approvals and try to bring a legal challenge based on that regulatory approval.
So from the perspective of opponents of a pipeline, they only really have to succeed in one of these various challenges to one of the necessary permits issued by one of the agencies. And from the perspective of the pipeline companies and the investors in the pipeline companies, they really have to run the table and successfully litigate against all of these various issues.
And just to put it into concrete terms, ignoring for a minute some of the local level requirements and approvals that are necessary, just taking it from the federal and the state level, the pipeline at issue here required 33 separate regulatory approvals. And again, any one of those 33 could be challenged on one ground or another as not complying with various regulations or statutes that apply to the approval.
Just the last thing I would like to say before kicking it back is just to underscore that these pipelines are not just critical in terms of energy development and capital investment and getting energy to end consumers, but they are also a really important source of jobs and particularly very good jobs. And so during the construction phase of the pipeline, the estimate is that the pipeline created some 17,000 jobs. And then once operational, the pipeline will be responsible for over 2,000 jobs. And at least during the construction phase of the pipeline, the average hourly wage associated with the jobs that are created by the pipeline is $55 an hour.
So if you think about these are precisely the kind of jobs that everybody thinks we need more of in these countries, and the pipelines are a very rich source of these high paying jobs, which is why one of the interesting phenomena you see in these pipeline cases, this ACP case but also others, is that you tend to have the construction unions supporting the efforts of the pipeline companies to develop these pipelines. And that was certainly the case here where there was amicus support at both the certiorari and merit stage from the relevant construction unions.
So with that, I’ll hand it back to Stephen.
Stephen Vaden: Well, that sets us up nicely for what it was the courts had to consider. As Paul noted, this case featured the Forest Service, and so both the Fourth Circuit and the Supreme Court were charged with untangling a series of statutes passed throughout the 20th century that laid out the authorities of the Department of Agriculture, of which the Forest Service is a part, and the Department of Interior, of which the National Park Service is as part. And the interactions of these authorities granted to the Departments of Agriculture and Interior are what made this case and brought it to the Supreme Court.
So first, in 1911, Congress passed the Weeks Act. The Weeks Act permitted the Department of Agriculture to acquire lands for the National Forest System. And those lands were, according to the statute, to, quote, “be permanently administered as National Forest lands,” close quote. Seven years later, the Department of Agriculture acquired the land in 1918 that would become the George Washington National Forest. And that is the national forest through which the Atlantic Coast Pipeline intersects the Appalachian Trail.
In 1920, Congress passed the Mineral Leasing Act. That act gives agency heads such as the Secretary of Agriculture and the Secretary of Interior the right to grant rights-of-way — and that will become very important — rights-of-way through federal lands, which is a defined term, for, among other things, pipelines.
Fast-forward to 1968, and Congress passed the National Trails Act. The National Trails Act called for the establishment of a series of scenic and historic trails throughout the country. The Trials Act itself designated two initial trails, one of which was the long pre-existing Appalachian Trail, which runs more than 2,100 miles up the East Coast. The Appalachian Trail, according to the Trails Act, was to be, quote, “administered by,” close quote, the Department of Interior in consultation with the Department of Agriculture.
And in order to safeguard the route along which the Appalachian Trail runs, the Department of Interior was instructed by the Trails Act to enter into, quote, “rights-of-way,” that important word again, “agreements with federal, state, and private landowners.” Then, in 1970, Congress amended the definition of what lands fall within the Department of Interior’s National Park Service. Those lands were defined as, quote, “an area of land or water administered by the National Park Service.”
Finally, the last piece in our statutory puzzle came in 1973 when Congress amended the Mineral Leasing Act originally passed in 1920 in order to change the definition of federal lands. Federal lands were now defined post 1973 to mean any federal land excepting lands under the jurisdiction of the National Park Service. That is to say, if an area of land is under the jurisdiction of the Nation Park Service, no department, neither Interior nor Agriculture nor anyone else, has the ability to grant a permit to allow a pipeline to cross it.
Why is this important? Well, the Appalachian Trail, as you will recall, was to be administered by the Department of Interior. The question before the Fourth Circuit was is the trail an area of land administered by the National Park Service, or is it merely something else, a right-of-way, not an area of land? If it’s an area of land, a permit may not issue for the pipeline. If it’s not an area of land, there is permitting authority.
And with that dense statutory background, I’m going to turn it back to Paul.
Hon. Paul Clement: Thank you. And I’m going to pick up with the Fourth Circuit opinion, just to set the stage for the Supreme Court case and the oral argument, and then we’ll finish by talking about the decision. I think maybe the single most important thing, though, to understand about the Fourth Circuit argument is that in contrast to the Supreme Court argument, which was all about this Appalachian Trail question and the interlocking statutes that Stephen has introduced, the argument in front of the Fourth Circuit was a much more wide-ranging attack on the Forest Service’s grant of the necessary permits for the pipeline to cross the Forest Service lands and the national forests, including the trail issue but by no means limited to that.
And maybe the best illustration of that is that the Fourth Circuit opinion in this case was 60 pages long, and the Fourth Circuit only got to the Appalachian Trail issue on page 52 of that 60 page opinion. And the vast bulk of the first 52 pages of the opinion were actually spent wrestling and ruling against the government and the pipeline on other issues involving the NEPA and the National Forest Management Act. And essentially, very specific arguments that the agency in considering the various presentations that the pipeline company had made about why the pipeline could safely pass the national forest in a way that was consistent with the forest plan that the Forest Service has for each of the national forests.
The bulk of the Fourth Circuit opinion really focused on those more detailed issues. And the critical thing about those other more detailed issues is that they’re fixable. So if, for example, one of the things that the Fourth Circuit held was that the Forest Service erred by initially asking for ten drawings to support certain architectural features, and then ultimately being satisfied by having two of those and requiring the other eight before construction. And so most of the opinion is very detailed and very fixable.
But then at the very end, and I think it has to be described in a somewhat offhanded way because it wasn’t the focus of the opinion, the Fourth Circuit then created this not fixable problem which is its view that the Appalachian Trail, because it is administered by the Park Service, becomes land in the National Park Service and therefore cannot be subject to a pipeline right of way under the Mineral Leasing Act. And although that holding was not the focus of the Fourth Circuit opinion, it was not something that could be fixed absent a specific act of Congress.
And it’s also something that had huge implications, not just for this particular pipeline and this particular Forest Service crossing, but for, really, pipeline development going forward because as Stephen alluded to, the trail is over 2,000 miles long. And if you just look at a map of the East Coast and you appreciate where the natural resources are, which is to say, generally speaking, west of the Appalachian Trail, and where the population that needs those resources is located, which is, generally speaking, east of the Appalachian Trail, if there’s no way to get under or across the Appalachian Trail with a pipeline, you really are creating some real, dire consequences for pipeline development more generally.
So fast-forwarding, then, to the oral argument, obviously, it was only the Appalachian Trail issue that both parties, the government and ACP, focused on in their cert petitions and in their briefing before the Supreme Court. And I would say that the oral argument was an interesting mix of very specific textual arguments based on a parsing of all the interlocking statutes that Stephen introduced, but at the same time, a healthy dose of these practical considerations and what it would really mean if the Appalachian Trail were a barrier to pipeline development.
And there was also focus on the fact that when Congress created the Trails Act and gave the Interior Department authority over the Appalachian Trail, it simultaneously gave authority to the Agriculture Secretary over the Pacific Crest Trail that runs from the top of the West Coast all the way down to Mexico and runs through a number of National Park Service lands like Yosemite and Sequoia.
And so part of the anomaly of the other side’s position is that by giving administrative authority to the Park Service and converting the entirety of the Appalachian Trail into a National Park Service property, the logic of the challenger’s position is that big chunks of Yosemite and Sequoia National Park had been converted into Forest Service land because the Agriculture Department and the Forest Service had been given administrative responsibility for the Pacific Crest Trail.
The other anomaly that featured quite a bit at the oral argument is that a number of these trails, because the other side’s argument applied to all national trails, not just the Appalachian Trail, not just the Pacific Crest Trail, that a number of these trails run through essentially the downtowns of major cities, or even in the case of the Appalachian Trail, maybe not a major city, but Hanover, New Hampshire’s essentially main street is part and parcel of the Appalachian Trail.
And so the consequences of the other side’s argument not just for federal land and the possibility of converting Forest Service land into Park Service land, that not only featured prominently at the oral argument, but also the effect of the environmental challengers’ position on private property ownership and land that the trail traverses that is in state ownership. All of those issues, I think, featured prominently at the oral argument.
And I think that in a sense, you got a flavor from the oral argument that the Justices were struggling not just with the meaning of particular words in the statute, but also what Justice Scalia famously referred to as this kind of elephants in mouseholes problem because the Trails Act in 1968 was trying to encourage the development of national trails.
But there’s no indication that Congress thought that in making a relatively casual designation of the Agriculture Secretary as being the administrative authority for a trail on the Pacific Coast and the Interior Secretary being the administrative agent over the Appalachian Trail that Congress was trying to treat the two trails radically different for purposes of pipeline development or had any intuition that it was creating a 2,000 mile barrier to pipeline development on the East Coast.
And I think I’ll hand it over to Stephen to talk about the Court’s opinion that was issued last week, but I think those same features and the consequences of the challenger’s argument I think ultimately figured prominently in the Court’s decision as well. So Stephen, do you want to lead off the discussion of the opinion, and then I’ll finish it up?
Stephen Vaden: Absolutely. And just to take off of what you noted, so essentially what the Fourth Circuit had created if its opinion was affirmed is there was a 2,100 mile wall, a natural wall, running the length of the East Coast through which whether anything had the ability to be permitted to cross it was in doubt. But then on the other end of the country, you had another multi-thousand mile trail on the West Coast that because it had always run through national parks understood to be not only administered but areas of land owned by the National Park Service had been off limits to pipeline development, yet under the Fourth Circuit’s rationale because the Department of Agriculture was administering the trail on the West Coast, that might open Yosemite National Park to pipeline and other development, where heretofore it had not been.
And most notably, and I know Paul will remember this, Justice Breyer found it very important that a national historic trail ran through downtown Selma, Alabama, a civil rights trail. And Justice Breyer was rightly worried that if the Fourth Circuit’s opinion were accepted, as he quite accurately put it, downtown Selma, Alabama, might become an inholding of the Park Service.
So all of these practical consequences were on the line when the Court made its decision on June 15th last week. Justice Thomas wrote the opinion for a 7-2 majority. The dissenters were Justice Sotomayor and Justice Kagan. All Justices of the seven and the majority, except for Justice Ginsburg, joined the opinion in full.
Justice Thomas wrote an opinion for the Court reversing the Fourth Circuit opinion, finding that it was wrong. For him, this was elementary property law. Noting that the Trails Act called on the Appalachian Trail to be constructed through rights-of-way rather than through outright acquisition, and that the term rights-of-way applied to federal land, state land, and private land in terms of what the Appalachian Trail was to consist of, Justice Thomas noted that a right-of-way is another way of saying an easement. And if one has an easement in property law, you have a usufructuary right. My property law professor would be proud I remembered that word. In other words, you have a right to use the land for a particular purpose.
With regard to the Appalachian Trail, that purpose, as laid out in the statute, is a foot path. You don’t have ownership of the lands underneath the easement. The lands still remain with the owner of the estate, in this case, the United States Forest Service. The easement is not an area of land. Instead, it is a burden that lies on the land.
And because the easement cannot therefore be described as an area of land, you could not define the Appalachian Trail as an area of land administered by the National Park Service. It’s not land. It’s a right-of-way. It’s a right-of-way administered by the National Park Service, essentially. And therefore, because it is not land in the National Park Service, then it must remain, therefore, land in the National Forest System. Land in the National Forest System is, by definition of the Leasing Act of 1920, still federal land, which means that the Department of Agriculture may grant a permit for, among other things, pipelines.
There were several other context clues beyond basic property law principles that led the Court majority to confirm its decision that the Appalachian Trail is a right-of-way, an easement, rather than an area of land, most notably in the 1968 National Trails Act. The act, passed by Congress, contained an explicit provision that stated, quote, “Nothing contained in this chapter shall be deemed to transfer among federal agencies any management responsibility.”
The Court took that language to be an explicit disclaimer of the creation of any trail, including the Appalachian Trail, working to divest jurisdiction from one agency, in this case, the Forest Service, and transfer it to any other agency, in this case, the Nation Park Service, which is a part of the Department of Interior.
This supposition was further confirmed by the fact that on the same day in 1968 that Congress passed the National Trails Act, it passed another piece of legislation dedicated to the management of America’s public lands, that being the Wild and Scenic Rivers Act. Unlike the National Trails Act, the Wild and Scenic Rivers Act contains express language allowing for the Secretary of Agriculture to, quote, “transfer jurisdiction of lands that become part of wild and scenic rivers to the jurisdiction of the Department of Interior,” which had responsibility under the Wild and Scenic Rivers Act for administering those lands around the rivers. There was no such express transfer provision found in the National Trails Act.
On top of all of this, you had the fact that the Fourth Circuit’s ruling, which put such a heavy emphasis on the fact that the Appalachian Trail was administered by the National Park Service. Well, how did that come to be? Well, that came to be because in 1969, the National Park -- the Department of Interior, rather, made a discretionary decision not compelled by any statute nor endorsed by Congress to delegate responsibility for managing the trail to the National Park Service.
It could have picked another agency within the Department of Interior to which to delegate the administration responsibility. For example, there are some trails that are the management responsibility -- the administration responsibility, rather, is delegated to the Bureau of Land Management. Had the Department of Interior decided in 1969 to delegate administration responsibility for the Appalachian Trail to the Bureau of Land Management rather than the National Park Service, then the plaintiffs would not have had a case because then even under their definition, it would not have been an area of land administered by the National Park Service. Instead, it would have been an area of land, or as the Court noted, not an area of land but a right-of-way, administered by the Bureau of Land Management.
The Court refused to take into account the discretionary decision made by a bureaucracy without express authorization from Congress and passed on that delegation decision made internally by the agency the great weight of divesting the Department of Agriculture and many other landholders of jurisdiction over their land.
It’s important to note that had this been determined to be an area of land under jurisdiction of the Park Service, we’re not only affecting the George Washington National Forest. You’re also affecting countless acres of land that are owned by states that are found in state parks and many large segments of private land where currently only easements rest across that land. The management of those lands by private stakeholders, private owners, would have been called into question.
Decades of precedent in terms of cooperative arrangements between the federal government and private land owners would have been thrown into question. And all of this would have come into place without explicit statutory authorization and because the discretionary administrative decision by the Department of Interior in 1969.
The Court majority found that in order to upset principles of federalism, private property law as well as well settled regulatory schemes, Congress needs to enact a clear statement in the law in order to authorize such action. There was not such clear statement found in any of the acts the Court considered. And then viewed holistically, we must remember that the George Washington National Forest, when created in 1918, was purchased through the 1911 Weeks Act which required by its own terms that any lands acquired by its authorities be, quote, “permanently administered as national forest lands.”
So the plaintiffs had the added burden, which they did not meet, of essentially arguing that the National Trails Act and the administrative decision of the Department of Interior to delegate responsibility for administration of the Appalachian Trail to the National Park Service had the effect of an implicit repeal of the 1911 Weeks Act. That was simply too much for the plaintiffs to bear, and so the 7-2 majority found against them and found that the Park Service did have permitting authority. From USDA’s perspective, this is an important ruling, not only because of this one pipeline, but because of the implications it would have anywhere a national trail crosses a national forest.
I had the great privilege in helping to prepare for this case of visiting the Appalachian Trail and walking along part of its length. In only two small counties in the state of Georgia, the Appalachian Trail crosses a myriad of different types of land. It crossed state land, private land. It crossed the national forest in Georgia. It crossed state highways. Believe it or not, at a portion in Georgia, the Appalachian Trail actually crosses through a private trading store. It crosses through all these things in merely a couple of miles. When you think about the 2,100 mile length of the entire trail, the number of legal questions that would arise were all of these private and public lands suddenly to be under the jurisdiction of the Park Service are almost infinite.
And that says nothing of the fact that we have literally hundreds of infrastructure projects that already cross the Appalachian Trail, whether they be electric lines, whether they be other pipelines. If the Fourth Circuit ruling had been affirmed, the authority to continue to have these preexisting infrastructure projects would be called into question.
And the plaintiffs never were able to answer the question of how it was a pipeline could not be permitted today in 2020, but yet all of these other preexisting infrastructure that crossed the Appalachian Trail, including a preexisting natural gas pipeline which is coming at the end of its useful life and needs to be repaired, could not only be allowed but then be replaced at the end of their natural life.
So this is a major ruling when it comes to federal land management agencies confirming the understanding that the Department of Interior and Department of Agriculture have and clarifying where permits may properly be issued, where they may not, and who has permitting authority.
Paul, I’ll turn it back to you.
Hon. Paul Clement: Thank you, Stephen. And I will just finish up here by underscoring the importance of this decision from the perspective of my client, the Atlantic Coast Pipeline consortium because from their perspective, they are dealing with multiple federal agencies, so they obviously have a concern for all of the issues that Stephen just alluded to. But at the same point, their principle concern is to get this particular pipeline built. And so from that perspective, this was a great victory, but it doesn’t mean that their quest to get this pipeline built and overcome all of the legal challenges is over.
And from that perspective, I think one of the important aspects of the opinion is that it was a 7-2 decision. So this was not just a decision that narrowly reversed the Fourth Circuit, but this was a decision where a number of Justices and not just Republican appointees, not just ardent textualists, but a broad swath of the Court essentially rejected the Fourth Circuit’s reasoning pretty authoritatively. And we’re hopeful that that will send something of a signal to courts that they should be looking at all of these issues fairly. And as Stephen alluded to, Congress made its intent that a lot of regulatory requirements apply.
But I do think that when the expert agencies have looked at these issues, and FERC has looked at the issues from an energy perspective approved route, and then the various affected agencies have looked at it from an environmental perspective, I think that a degree of deference to those judgements is appropriate. Otherwise, I think you really have a threat to the ability to pipeline companies to practically make good on these investments.
Again, as I said earlier, this decision does not mean that every hurdle has been cleared. Those other environmental issues that were the focus of the first 52 pages of the Fourth Circuit opinion are still ongoing. There is an ongoing challenge to whether or not the statutory authorization for a right-of-way under the Blue Ridge Parkway, which parallels the Appalachian Trail for some 400 miles, was validly granted.
And I think that this decision is important on its own terms, but also on what it says atmospherically about the need to read these statutes and agency action fairly against the backdrop that Congress in enacting all of these statutes has, at the same time that it subjected the statutes -- the pipelines through these various environmental requirements, has very much encouraged pipeline development because of its obvious benefits, both from an energy policy standpoint but also in terms of providing jobs, increasing the tax base, and the like.
And so as a practical matter, anything that requires 33 different regulatory approvals, if the investors are going to have to routinely clear 33 different regulatory hurdles that then become contentious litigation, there’s a real prospect of bogging down this investment and making it practically impossible, even though there are no legal problems, ultimately, at the end of the day. And so I think the opinion is important not just for what it says about this one issue, but I also think it’s important for the signal it sends more broadly about pipeline development and how courts should consider the challenges that seem almost inevitable in this context.
And then the last thing I will say is it does show you a little bit the difference between lower court litigation where typically the litigation is focused on multiple issues, and any one issue is not the subject of extensive briefing, and how you can take an issue that in the lower courts consumed eight pages of the opinion. By the time it gets to the Supreme Court, it’s the entire focus of the litigation. There are 50 page briefs on both sides of the case. There are multiple, multiple amicus briefs that are focused on this issue alone.
And I think this is a classic case where the argument that the Fourth Circuit had accepted just could not withstand all of the scrutiny that comes with that kind of extensive briefing and argument because the implications of the theory not just for this pipeline but for the Appalachian Trail, for what it meant to Park Service land on the West Coast, to what it meant for Selma, Alabama, and whether that just became an inholding of the National Park Service, it all just became too much for the plaintiff’s theory to -- just too much weight for the plaintiff’s theory to hold up under.
And I think that’s an interesting feature of the Supreme Court where you often have litigation that in the lower courts was multi-issue litigation. It really gets focused down to a single issue that gets a level of scrutiny that you just don’t see typically in other litigation. And here, I think the environmental plaintiff’s theory just couldn’t withstand that degree of scrutiny.
So I think that’s it as far as our principal concern, our principal presentation about the background of the case and the opinion. And I think we still may have some time for some Q&A, but I defer to the experts on that.
Micah Wallen: Absolutely. Let’s go ahead and open up the floor for some audience Q&A. And in the meantime, I would also like to briefly offer up a reminder to keep an eye out in your email inbox for announcements of future teleforum calls. Also, our complete teleforum call schedule can be accessed at The Federalist Society’s website at www.fedsoc.org. Also available there are podcasts of the teleforums that you may have missed, and they are also available on the podcast app and Google Play and iTunes.
Not seeing any questions jump in the queue right away. I will toss it back over to you, Stephen or Paul, if there’s anything else you want to discuss about the case today.
Stephen Vaden: Well, Paul was very kind to offer compliments my way. I want to repay them. Having attended oral argument, this was a team effort between the federal government on one side advocating for its specific interests and Paul’s private client arguing for its project specific interests. And at oral argument, Paul did a masterful job of handling questions from all across the bench, and very much showed why he is universally renowned as one of the best advocates ever to argue in front of the Supreme Court. He really picked up where the Solicitor General’s representative left off with some loose ends that had remained, tied them all up in a neat little package, and presented it to the Court as a fait accompli, which the 7-2 vote shows that it is.
The other thing that I would just remark on is just to second Paul’s note that in an era in which so much of what we see on the news is focused on division and division among partisan lines, that, happily, this case was not that.
In addition to being 7-2 and having Justices from across the political spectrum, the amici that supported the federal government and the Atlantic Coast Pipeline ran a similar gamut from people who had interests in recreation and wanted to ensure that whose job it was in the federal government to ensure that the Appalachian Trail remains safe for recreational uses and those to traverse it was not thrown into open question, to labor unions such as the Laborers’ International Union of North America whose members work on constructing the pipeline, to Chambers of Commerce, the American Farm Bureau, and others who have interests in seeing to it that the regulation that is put into place is administered rationally and in a way in which applicants can work through.
So this really is a case that shows despite what the media may tell you, the work of the courts is not a Republican versus Democrat endeavor. It really is people trying to look at the text and figure out what it is that Congress intended all of us in the federal government to do.
Micah Wallen: And we actually had two questions jump in the queue during those remarks, Stephen, so without further ado, we’ll move to our first caller.
Caller 1: So my question is, is this case actually a delegation case that’s really important because of what Justices Kavanaugh and Gorsuch’s interest in the issue of delegation to agencies?
Hon. Paul Clement: This is Paul. I’ll take a first crack at that and to say that I think this decision had that delegation issue lurking in the background. And I think that this case is maybe a good example of how the Court’s -- sort of working majority of the Court, it would seem, in light of Justice Kavanaugh’s opinion this term, there’s a working majority of the Court that seems concerned about Congress’s excessive delegation of authority to Executive Branch agencies.
And the challenge, of course, in developing that doctrine has always been to come up with a workable test for how much delegation is too much delegation and the like. And I think the Court will presumably wrestle with that issue directly in some case in a term in the next year or two, perhaps. But until the Court wrestles with that, I think the issue is still going to be important and still going to loom large in cases and influence the way that Justices think about cases, even if they don’t use that particular case as the vehicle to reaffirm the nondelegation doctrine or develop a test for the nondelegation doctrine.
And here, I think you saw that, as Stephen alluded to, one of the anomalies of the plaintiff’s position is that they couldn’t argue that Congress itself had specifically given authority over the Appalachian Trail to the National Park Service because all Congress did in the Trails Act was give that authority to the Secretary of Interior. And the Secretary of Interior would have had the option of either delegating administrative authority to the Bureau of Land Management, in which case the Appalachian Trail would not be a barrier to pipeline development, or the Interior Secretary could have done what he did at the time, which is give administrative authority to the Park Service, in which case if the plaintiff’s theory was right, the entire Trail would be a barrier to pipeline development. And I think -- and you really saw this reflected very specifically in one of Justice Gorsuch’s questions at the oral argument.
But putting aside all the other statutory issues, the idea that the plaintiff’s theory would require the Court to accept that Congress could have rashly delegated a decision with such enormous consequences to the Secretary of Interior without anything really to guide the Secretary of Interior’s discretion as to whether the Secretary designated the BLM or the Park Service as the administrative agency, I think is something that really bothered Justice Gorsuch and I think helps explain his vote.
And he’s the one who expressed it in a specific question, but I don't think he was alone in that view. And I think it’s just a nice illustration of how these kinds of delegation concerns can play a role even in cases where the Court doesn’t use that doctrine specifically to decide the case one way or another.
Stephen Vaden: And I’ll just say, speaking from a federal agency standpoint, that we certainly took note of the citation that the Court made to the weight that plaintiffs were putting on what amounts to a ministerial decision by the Department of Interior in 1969 to pick the National Park Service over the Bureau of Land Management. They really were asking the question is the agency acting under a specific directive from Congress in order to carry this out?
And if not, one way to think about this is are we as a Supreme Court really going to defer and give a tremendous amount of legal effect to a decision that, while I’m certain took place in 1969 with some level of thought, did not take place with a level of deliberation, public notice and comment, followed by any type of final rule that would be normally required for a massive legislative change — and here I’m talking in APA language — to a series of regulations.
I think that that kind of looking at the regulation and asking whether or not the agency is acting with express authority or whether it’s just acting with a more general authority to which a court will not defer or draw an inference in favor of a particular action, a change, as it were, in the law in this case, is something that agencies need to keep in mind.
We are not the be-all, end-all. We cannot do anything in a federal agency unless Congress has explicitly authorized us to do it. And if we are acting under a more broad authority that doesn’t have behind it any particular act of Congress meant to have momentous effect, we should not expect our administrative decisions to have momentous effect outside our walls.
Micah Wallen: We have one other person in the queue, so we’ll go ahead and fit that in before we close today.
Caller 2: Good afternoon. How are you gentlemen?
Hon. Paul Clement: Great, thanks.
Caller 2: My question is twofold. I’m asking as a new law school graduate and entering into the regulatory administrative law field. My first question is for Mr. Paul. How do you advise or help a private client manage 33 regulatory compliance actions in this kind of environment with the scope of the project? And then for Mr. Stephen, from a federal agency standpoint, how do the internal workings work with that many different agencies coordinating the different approval requirements for a project to move forward?
Hon. Paul Clement: Sure. I’m happy to answer the first piece of that. And I think the answer is that facing that many regulatory requirements is incredibly daunting. And only an investment that would be of enormous scope would even justify trying to run the gauntlet. And so I think these pipeline developments are a very important part of the nation’s energy infrastructure, and they essentially justify trying to run the gamut, particularly when you have a federal government that seems like it is supportive of this kind of development. And so they’re obviously going to make sure all the t’s are crossed and all the i’s are dotted. But at the same point, they’re approaching this consistent with Congress’s judgement that this is something that they want to affirm and that they want to encourage.
And so I think that’s a long way of saying that even with the largest of projects and even under the best of circumstances, all of these regulatory requirements are incredibly daunting. And if you change that calculus by saying that you’re going to impose these kinds of onerous requirements on smaller projects and/or do it in a context where many of the agencies, whether federal or state level, are fighting you at every stage, you get to a certain point where even though Congress is on record as wanting to encourage certain kinds of development, all of these regulatory requirements can’t help but hamper that development.
Stephen Vaden: And I can speak about the federal agency perspective. So as I laid out at the beginning, there are a panoply of agencies that are involved in just the Atlantic Coast Pipeline, from the Federal Energy Regulatory Commission to the Department of Agriculture’s Forest Service to the Fish and Wildlife Service at the Department of Interior, just to name a few. So for those matters that are given specifically and that deal only with one particular agency, such as, for example, how does the pipeline that has been proposed fit into the forest management plan for the George Washington National Forest? That is, of course, a determination just for the Forest Service, and we don’t need to reach out to our federal agency partners in order to conduct the analysis that is required in order to determine that.
But when you’re looking at a broad, multi-agency regulatory statute like NEPA, that is an analysis in which many federal agencies must play a simultaneous part, including the Fish and Wildlife Service, the Forest Service, the Federal Energy Regulatory Commission. All of them are going to put in material that is eventually going to become a big NEPA report laying out all the potential environmental consequences, commenting on them, and explaining how each of those agencies will respond to them for this one particular project. So it’s a combination of a collaborative effort and an individual effort.
I’m happy to say that when it came to this case that went before the Supreme Court, USDA had the support of all of those agencies I just mentioned in seeking cert, most notably the Federal Energy Regulatory Commission whose general counsel at the time was James Danly. He’s since been confirmed as a Commissioner on the Commission itself. And Dan Jorjani, the Solicitor at the Department of Interior, what they call their General Counsel, were all great helpers in helping to get this to the federal courts, get this through the federal courts to the Supreme Court. And we worked collaboratively to do so.
The final thing that I will note is that we in the federal government and this administration realize the path that Congress has laid out for a project such as Paul’s client that has to run the gamut of 33 separate regulatory approvals. While we’ve got to follow the law and administer the law as Congress asked us to, we do have authority to try to make that process as comprehensible and seamless as we can for the applicant.
And that is why this administration, through its FAST-41 permitting process for future infrastructure projects that began after the Appalachian Trail did, will have a lead agency, in this case, maybe FERC, for example, that will be the lead permitting agency. And all of the rest of the federal departments will fall in behind and work on a timeline that we will all agree on together so that bright lawyers like Paul get to spend more time advising their client on how to get things done as opposed to trying to figure out 15 different agencies’ ways of submitting the same form.
It’ll be one lead agency with one process and one timeline, which will hopefully shave years off the permitting process while ensuring that the statutorily required environmental and other analyses are completed, scientifically accurate and valid, and the right decision on behalf of the American people is reached.
Micah Wallen: And with that, I’ll offer one other chance to each of you. Is there anything else you’d like to add before we close out today?
Hon. Paul Clement: This is Paul. I will just simply say that this was a terrific case to work on, not just because I had a great client but a great collaboration with Stephen and others in the federal government, but also because the Appalachian Trail is a fabulous national institution. And I think Federalist Society members in particular would be interested to know that it is a success story that was not a top-down government program but was really a project of a lot of independent, local level hiking clubs that eventually got together to put together this national trail, and they worked in partnerships with governments but not under the direction of partnerships. And it’s a fascinating story, and if you want to learn more about it, Bill Bryson wrote a book called A Walk in the Woods that I highly recommend.
Stephen Vaden: And I would just say that it is, of course, the highlight of any lawyer’s legal career, including mine, to work with such a great advocate as Paul on this case. And I’m glad we were able to collaborate successfully on behalf of both of our clients. And I’m particularly happy to say that when this pipeline is completed, if you walk along the Appalachian Trail in the George Washington National Forest, you will not know that it is there because it will be buried 600 feet underground, and the entrance point and exit point for the pipeline will not be visible from your location on the Appalachian Trail.
So I’m proud of our Forest Service for working with the Atlantic Coast Pipeline to devise a plan that protects the environment, protects the beauty of our national lands, our national federal lands, and also helps to ensure that the infrastructure that our nation needs continues to be built. We do take our duty at the Forest Service to, as the Fourth Circuit put it in quoting The Lorax, “to speak for the trees” seriously. We think we have done that, and we’re glad the Supreme Court agreed with us.
Micah Wallen: On behalf of The Federalist Society, I’d like to thank both of our experts today for the benefit of their valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.