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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: The Trump administration has been pushing hard to speed up

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Speaker 1: approval for major oil and gas projects, including pipelines on

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Speaker 1: federal lands. President Trump even signed executive orders to expedite

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Speaker 1: oil and gas pipeline projects in Texas last April. Too often,

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Speaker 1: badly needed energy infrastructure is being held back by special

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Speaker 1: interest groups and trenched bureaucracies and radical activists. But the

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Speaker 1: planned eight billion dollar Atlantic Coast pipeline, whose path crosses

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Speaker 1: the Appalachian Trail, has been stalled by legal challenges from environmentalists. Today,

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Speaker 1: that legal battle reached the Supreme Court and a majority

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Speaker 1: of the justices appeared to back the position of the

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Speaker 1: pipeline developers and the Trump administration joining me is Pat Parento,

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Speaker 1: a professor of environmental law at the Vermont Law School,

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Speaker 1: described the project and what it's a post to accomplish.

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Speaker 1: It's a six d mile gas pipeline taking fract gas

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Speaker 1: from the Marcellus Formation all the way to North Carolina,

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Speaker 1: and it crosses the Appalachian Trail on the George Washington

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Speaker 1: National Forest, right on the crest, of course of the mountains.

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Speaker 1: It's designed to be tunneled under the trail six feet

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Speaker 1: actually under the trail. So that's that's one of the

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Speaker 1: points of controversy in the cases. Is it really diminishing

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Speaker 1: in any way the trail, impacting it even the view

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Speaker 1: shed on either side of the trail, or is it

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Speaker 1: simply tunneling under it and has no real impact on

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Speaker 1: the trail itself. How strong is the demand for this

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Speaker 1: natural gas? It's pretty strong. It's um replacing all these

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Speaker 1: coal fired power plants that are closing left and right,

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Speaker 1: and even some nuclear plants along the eastern seaboard and

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Speaker 1: down into the south southeast, where you know, both coal

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Speaker 1: and nuclear have been the dominant sources of energy for

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Speaker 1: a long time. And and gas, the cheaper frack gas

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Speaker 1: is is definitely in demand. And um, you know there

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Speaker 1: are I don't know how many of these pipelines are too.

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Speaker 1: Uh this one the Atlantic Coast and the related one

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Speaker 1: Mountain Valley that are crossing the Appalachian Trail within a

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Speaker 1: pretty close distance. So there's a whole bunch of these

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Speaker 1: pipelines moving from west to east. So is the issue

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Speaker 1: before the Supreme Court just which federal agency is in

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Speaker 1: charge here? Yes, it is um, the Forest Service granted

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Speaker 1: the right of way for them to tunnel under. The

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Speaker 1: Park Service wasn't consulted on that part. The Park Service

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Speaker 1: was involved in the environmental impact statement. Park Service asserted

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Speaker 1: authority over administration, as it put it, of the trail,

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Speaker 1: and the Forest Service didn't dispute that in the environmental

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Speaker 1: Impact statement. But the question of whether the Forest Service

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Speaker 1: does have the final word on allowing this underground crossing,

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Speaker 1: that's that is the question before the court. It's a

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Speaker 1: it's a complex statutory interpretation question. There are actually four

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Speaker 1: different federal statutes. There's the National Trails Act, there's the

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Speaker 1: for the National Park Service Organic Act, there's the National

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Speaker 1: Forced Management Act, and the National Environmental Policy Acts. A

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Speaker 1: bunch of federal laws. But the narrow question, as you say,

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Speaker 1: is who whose decision is it to allow this? So

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Speaker 1: how did the justices seem to approach this? They're all

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Speaker 1: over the map on this one. Um. Even Justice Brier

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Speaker 1: seemed to be leaning in favor of an interpretation that

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Speaker 1: in this particular case, because they're tunneling under the trail,

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Speaker 1: the Court doesn't really need to try to resolve all

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Speaker 1: the potent questions about who has authority over the elaborate

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Speaker 1: trails system in the United States. You know, the Appelation Trail,

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Speaker 1: of course is one of our most famous, but there's

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Speaker 1: the Pacific Crest Trail. There's there's literally thousands of trails

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Speaker 1: all over the map, And so they're trying to avoid

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Speaker 1: having to decide once and for all who has the

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Speaker 1: ultimate authority over all the instances in which pipelines, in particular,

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Speaker 1: maybe crossing these various trails. So it's too soon to know,

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Speaker 1: but it could be if the Court comes down in

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Speaker 1: favor of allowing this pipeline to go forward, it will

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Speaker 1: be on this really narrow ground that because they're tunneling UM,

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Speaker 1: it doesn't raise all kinds of other problems. Is that

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Speaker 1: a legal ground they're tunneling. Well, that's what they're debating

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Speaker 1: in the oral argument. They're even talking about what what's

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Speaker 1: the meaning of land. The petitioners in the case, including

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Speaker 1: the Trump administration, UM are are arguing that a trail

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Speaker 1: isn't really land, and Justice Kagan said, I don't even

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Speaker 1: understand what you're trying to describe as it metaphysical concept

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Speaker 1: that you're talking about. But the the idea is that

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Speaker 1: a trail sort of supersedes across the land, but it

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Speaker 1: isn't the land itself, it's the right to cross the land.

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Speaker 1: So you know, this is a pretty arcane, uh legal

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Speaker 1: technical legal question of is there really a difference between

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Speaker 1: land per se and and a trail and a right

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Speaker 1: of way to cross the land. But that's what they're

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Speaker 1: arguing about. I've been talking to Pat Parento, professor of

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Speaker 1: environmental law at Vermont Law School, about the Supreme Court

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Speaker 1: arguments today about the Plant Atlantic Coast pipeline. So it

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Speaker 1: seems as a Chief Justice John Roberts was agreeing with

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Speaker 1: the people who want to build the pipeline. He said

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Speaker 1: that it would create an impermeable barrier along the mile trail,

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Speaker 1: separating consumers on the Eastern Seaboard from inland energy resources.

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Speaker 1: That seems to be the exact argument that they were making. Yeah,

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Speaker 1: that's that that's a cue for sure. That just as

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Speaker 1: Chief Justice Roberts is seeing this case through the lens

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Speaker 1: of sort of national energy infrastructure and and and and

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Speaker 1: an interpretation that would block the movement of gas through

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Speaker 1: these pipelines across not just the Appalachian Trail, but other trails.

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Speaker 1: Um would be a barrier. Uh. You know, some people

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Speaker 1: have likened it to building a wall across the United

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Speaker 1: States in blocking energy movement UM, And so that tips

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Speaker 1: his hand. I think that he's going to come down

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Speaker 1: on the side of overturning the Fourth Circuit decision and

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Speaker 1: allowing UM the crossing that they're talking about. But there's

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Speaker 1: a couple of important points. This project needs eight other permits.

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Speaker 1: This is only one, and they don't have any of

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Speaker 1: them yet. And and the Fourth Circuit has overturned two

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Speaker 1: other kinds of permits, one under the Endangered Species Act,

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Speaker 1: one under the Clean Air Act for a compressor. So

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Speaker 1: there's a whole bunch of litigation around this pipeline and others.

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Speaker 1: It also signals, I think this moment in time, you know,

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Speaker 1: what is the future energy policy of the United States?

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Speaker 1: Is it pipelines and gas or is it when you know,

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Speaker 1: wind turbines, offshore and onshore, solar development, storage, electrification of

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Speaker 1: the transportation system. We're really poised on an inflection point

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Speaker 1: in our history, and this case is just a tiny

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Speaker 1: little indication of the bigger thing that's going on. If

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Speaker 1: the Supreme Court rules against the environmentalists, is that a

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Speaker 1: signal for future environmental cases that it's business over environment

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Speaker 1: or is this just a small slice. Well, it's just

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Speaker 1: a piece of the larger tapestry. Um. And these fights

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Speaker 1: are going to go on indefinitely. Um. There's gonna be

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Speaker 1: wins and losses, gains and us as we go and

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Speaker 1: from the standpoint of the environment or the standpoint of

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Speaker 1: a cleaner energy future. But I don't think this case,

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Speaker 1: you know, is either the beginning or the end of

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Speaker 1: this story. It's just one more chapter that we're going

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Speaker 1: through and the final sort of chapter, I guess is

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Speaker 1: yet to be determined. The election has a lot to

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Speaker 1: do with that. The pressure that's coming from the financial institutions.

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Speaker 1: We just saw from JP Morgan, the biggest financier of

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Speaker 1: fossil fuel development in the world, issuing a report that

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Speaker 1: if we don't stop this, we're looking at the collapse,

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Speaker 1: said the UH JP Morgan report, collapse of human civilization.

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Speaker 1: So big things are happening June. Yes, indeed. But at

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Speaker 1: the Supreme Court level, does it seem as if there

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Speaker 1: is a conservative block against most of the environmental actions. Yes,

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Speaker 1: I'd have to say that's true. Um, there's five solid

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Speaker 1: conservative votes questioning environmental um interests and environmental arguments about

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Speaker 1: what the future should be, and where there's a choice

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Speaker 1: of interpretation, this case is a good example. This precise

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Speaker 1: question has never been decided by any court as to

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Speaker 1: who has control over crossings of the Appalachian Trail or

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Speaker 1: other trails. So when you see a chance for the

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Speaker 1: Supreme Court to lean one way or the other, I

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Speaker 1: think it's fair to say they're going to lean towards industry,

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Speaker 1: lean towards the status quo, and against environmental interests. That

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Speaker 1: seems pretty clear. What basis did the Fourth Circuit use

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Speaker 1: to scrap the agency's approval. They took what's called a

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Speaker 1: plain text reading of the Mineral Leasing Act, which says

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Speaker 1: if the land in question is part of the National

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Speaker 1: Park Service, then the agency that it's that's it that's

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Speaker 1: administering the land. In this case, the Forest Service simply

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Speaker 1: doesn't have the authority um to grant a right of way.

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Speaker 1: So the Mineral Leasing Act was the Fourth Circuit's focus point,

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Speaker 1: and that's where this question of is it a land

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Speaker 1: or is it a right of way or is there

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Speaker 1: a difference between the two really becomes critical um the

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Speaker 1: court to get around the Mineral Leasing Act. The Supreme

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Speaker 1: Court is going to have to say this is not

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Speaker 1: land within the meaning of that statute. So so so

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Speaker 1: the Supreme Court decision could be very narrow, as this

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Speaker 1: Court is often wont to do yes. And I think

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Speaker 1: that the liberal wing of the Court is trying to signal,

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Speaker 1: as I'm reading the transcript of the oral argument, to

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Speaker 1: the conservatives, maybe we'll go along with you if we

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Speaker 1: can keep this a really narrow decision. Did what Justice

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Speaker 1: Kagan say, though, seem to contradict that. Yeah, Justice Kagan

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Speaker 1: um doesn't buy this idea that a right of way

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Speaker 1: isn't land's. I mean, she's a hiker, so she was

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Speaker 1: talking about when I'm hiking or biking or walking on

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Speaker 1: the land, on the on the trail, I'm on the land.

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Speaker 1: So she was saying, I don't get this distinction. She

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Speaker 1: might write a descent on that ground, I don't. I

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Speaker 1: don't see this as a unanimous opinion in any case.

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Speaker 1: Fourth Circuit has ruled in this case as well, as

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Speaker 1: you mentioned before, in a few other cases. Are other

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Speaker 1: courts around the country in agreement with the Fourth Circuit?

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Speaker 1: Or is there or dispute among the circuits about these

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Speaker 1: kind of things. No, there's no there's no split of

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Speaker 1: authority among the circuits on this particular kinds of question

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Speaker 1: of who has the authority to grant rights of way

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Speaker 1: or crossings over the national trail system. This is the

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Speaker 1: this is the first time that's come up, So there

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Speaker 1: probably will be other controversies, And depending on how this

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Speaker 1: decision comes down, it may block environmentalist attempts to just

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Speaker 1: stop pipelines and other locations, or it may not. It

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Speaker 1: may be so narrow to this particular case that it

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Speaker 1: leads to another day arguments about all these other pipelines

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Speaker 1: that are proposed across all kinds of federal and state

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Speaker 1: owned land. There's another case pending assert petition pending on

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Speaker 1: you know, does UH pipeline companies have imminent domain power

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Speaker 1: to just go out and condemn private property UH and

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Speaker 1: and state owned land. I should say they got the

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Speaker 1: right to do private property, but do they have the

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Speaker 1: right to condemn state owned land and take it for

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Speaker 1: pipeline UH locations? So those lots of different issues around pipelines.

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Speaker 1: Why is it the Park Service versus the Forest Service?

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Speaker 1: Why did they have two different opinions about this? And

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Speaker 1: why did the Forest Service get involved. Well, I mean,

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Speaker 1: the Forest Service had to do the environmental impact statement

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Speaker 1: because you know, all we're talking about in this case

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Speaker 1: is crossing the trail. But this um, this pipeline acrosses

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Speaker 1: you know, hundreds well I don't know if it's hundreds

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Speaker 1: of miles, but a long, long section of the George Washington,

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Speaker 1: UH for US. So the Forest Service was considered the

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Speaker 1: lead federal agency for the project, and it just came

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Speaker 1: up onto the question of can we allow them to

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Speaker 1: tunnel under the trail? And it said yes, it didn't

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Speaker 1: it is not really fighting for that particular position. And

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Speaker 1: in the as I said in the impact statement, it

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Speaker 1: basically conceded that administration of the trail is the responsibility

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Speaker 1: of the Park Service. But see, then we have this

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Speaker 1: dispute about what does administration of the trail mean. One

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Speaker 1: of the questions the judge asked is if a tree

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Speaker 1: falls on the trail, does the Park Service at Harper's

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Speaker 1: Ferry have to get on a plane and fly up

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Speaker 1: to the forest to remove the tree. So you get

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Speaker 1: some kind of crazy implications when you have this joint

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Speaker 1: ad management of the trail and the forest. But the

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Speaker 1: Forest Service still has the biggest chunk of the National

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Speaker 1: forest lands to deal with with the project like this.

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Speaker 1: What other environmental cases are coming up at the Court

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Speaker 1: that you're watching this term. Well, there's one involving whether,

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Speaker 1: as I said, pipeline companies have eminent domain authority to

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Speaker 1: take state owned lands um. That's the East Pennsylvania Pipeline

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Speaker 1: Company case, where again the lower court said no, Congress

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Speaker 1: didn't mean to delegate the authority to private companies to

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Speaker 1: condemn state owned land. So that's a big issue. I

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Speaker 1: wouldn't be surprised to see the Supreme Court take that one.

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Speaker 1: There's another case involving the Freedom of Information Act, which

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Speaker 1: is important, and this is a Fish and Wildlife Service

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Speaker 1: case with the Sierra Club. And the question there is

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Speaker 1: can the Phish and Wildlife Service refuse to release documents

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Speaker 1: um that are internal um drafts of biological opinions and

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Speaker 1: other documents like that and claim deliberative process. How broad

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Speaker 1: is that deliberative as privilege? And the Supreme Court might

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Speaker 1: take that one because there's been quite a bit of

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Speaker 1: litigation around the country with different outcomes under what's the

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Speaker 1: scope of this exemption from disclosure? And as we know,

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Speaker 1: the Trump administration has been very active in denying the

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Speaker 1: release of documents and scrubbing websites of information, and the

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Speaker 1: environmental community, of course, is anxious to get their hands

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Speaker 1: on some of those documents. So that's another important one.

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Speaker 1: If you were going to predict, if I was going

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Speaker 1: to force you to predict how the court would come out,

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Speaker 1: how would you say it would rule? Looks to me

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Speaker 1: like they're going to find a way to approve this crossing.

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Speaker 1: And the most the environmental community can hope for is

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Speaker 1: what we call a soft landing. I guess, which would

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Speaker 1: be um the narrowest possible rationale and not for closing forever.

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Speaker 1: The ability of the National Park Service in certain situations

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Speaker 1: to say no um to crossing UH trails that are

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Speaker 1: administered or under the National Park Service Organic Act. That's

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Speaker 1: that's probably the best we can hope for in this one.

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Speaker 1: Thanks for being on Bloomberg Law. Pat. That's Pat Parento,

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Speaker 1: Professor of Environmental Law at Vermont Law School. Remember you

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Speaker 1: can listen to all the latest legal topics in the

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Speaker 1: news anytime on our Bloomberg Law podcast. You can subscribe

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Speaker 1: to the podcast or just go to iTunes or Bloomberg

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Speaker 1: dot com. Slash podcast Slash Law. I'm June Grasso. Thanks

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Speaker 1: so much for listening, and remember to tune in to

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