The line outside the US Supreme Court this morning was long and the crowd sportily dressed, with many prospective audience members in fleece vests under suits and all wearing sensible walking shoes. They came for arguments about a government license, a gas pipeline, and the Appalachian Trail, in a case that’s taken a surprising turn for the metaphysical.
The dispute pits the US Forest Service and Atlantic Coast Pipeline Company against environmentalists over development plans surrounding areas of the world’s longest hiking-only path, which stretches nearly 2,200 miles from Georgia to Maine. The question before the high court is whether the Forest Service had the right to grant the license.
The Fourth Circuit Court of Appeals ruled for the environmentalists that it did not, based on statutory interpretation. Other issues, like the extent of potential environmental damage, have been remanded to trial court. So, today’s debate may end up being a moot point, as Ruth Bader Ginsburg noted at the hearing’s start.
However, that’s not what makes the case so problematic, at least not from some justices’ perspective. Elena Kagan told assistant solicitor general Andrew Yang, arguing for the Forest Service, the government’s basic stance is “difficult…to wrap one’s head around…as a matter of plain English.”
“The trail is not land,” Yang had explained.
For the purposes of this case, the Appalachian Trail, which adds up to about 250,000 acres of territory, is a footpath or right-of-way. But it’s not technically “land” administered by the National Park Service because if it was, then it would be statutorily protected and the license grant would be invalid. Here, the government is urging the high court to understand National Park Service land to mean land excluding the Appalachian Trail.
Kagan was clearly flummoxed by the proposition. She mildly chided counsels for the government and company with the opposite of a compliment sandwich:
I mean, both of your briefs—and you’re great brief writers and you’re great writers—and the briefs are strange to read because you can’t ever just say what you mean, which is that the trail is a piece of land. So you find yourself wrapped up in these strange locutions about the trail traversing land. It’s like you’re imagining some thing that goes on top of it somehow.
The justice’s reading of the law was quite simple by contrast. Assessing various federal regulations about the administration of the Appalachian Trail, she noted that the park service regulates uses, vehicles, and maintenance along the trail. “In other words, it’s the National Park Service that basically does land use regulation and the land is the trail,” she concluded.
But counsel for the company, Paul Clement, pushed back, arguing that it was the environmentalists’ claim that land is land that’s actually absurd. He noted that national trails run through some cities, but that doesn’t render urban districts protected from development because of their associations with the Park Service. Applied widely, a finding that the license is invalid here would block pipeline development everywhere.
The attorney also pointed out that it was possible for the park service to be responsible for some administration without having the final authority over licensing, which lies with the Forest Service. Clement happened to be arguing his 100th case before the court and was perhaps stung by Kagan’s review of his brief, later quipping:
You know, 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.
Samuel Alito seemed willing to be convinced by this. Tossing Clement a supportive softball for his final query, the justice asked whether the Park Service’s Washington, DC office would be considered protected “land” within the meaning of the relevant statutes.
It took the attorney a moment to understand where to go with the offer. At first Clement mused that the office would be Park Service land. But he soon caught on (having been before the court a lot, after all). The attorney added, “Yeah, but I don’t think they have to maintain that building in its unimpaired natural state, which just goes to show not everything that’s in the park system in some loose sense is subject to the restrictions.”
Like Alito, the chief justice didn’t see much of a problem with the position that Kagan found so perplexing. He asked counsel for the environmentalists fighting the license what the big deal is, basically. “[T]here seems to be a debate on some metaphysical level about whether you can have a trail, whether you can have land under it, or interests in land that are different. I just, it doesn’t strike me as that unusual a concept that there are property rights that are distinct from rights in the land.”
Roberts pointed out that he could give someone an easement to walk across his backyard without relinquishing ownership. “I don’t think that I’m giving up the land. It’s still my land,” he argued.
With this, the chief justice sidestepped the technical question of what precisely “land” means under the relevant statutes, turning the textual issue into one of common sense, ostensibly. And he’s not totally wrong. An owner can of course grant a permit for certain land uses without giving up their property rights.
However, the real question here is who is really the “owner” with the right to grant a license in this matter. Based on today’s debate, it seems the justices have much property and philosophy talk to get through before they issue a decision, which is expected by term’s end in late June.