A challenge from environmental groups to an $8 billion natural gas pipeline that would cross the Appalachian Trail seemed to falter at the Supreme Court on Monday, with even some of the court’s more liberal members expressing skepticism about the breadth of the groups’ legal theory.
The case concerns the Atlantic Coast Pipeline, which would deliver gas from West Virginia through Virginia, where it crosses the famous hiking trail, to North Carolina.
The legal question for the justices is whether the U.S. Forest Service was entitled to grant a right of way to the pipeline. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., said no, citing a federal law that bars agencies from authorizing pipelines in “lands in the National Park System.”
Monday’s argument was by turns metaphysical and practical.
Anthony A. Yang, a lawyer for the federal government, arguing in support of the pipeline’s developers, said the trail, administered by the National Park Service, was distinct from the land underneath it.
Justice Elena Kagan said that was “a difficult distinction to wrap one’s head around.”
“When you walk on the trail, when you bike on the trail, when you backpack on the trail, you’re backpacking and biking and walking on land, aren’t you?” she asked. “It’s like you’re imagining some thing that goes on top of it somehow.”
Justice Samuel A. Alito Jr. proposed a different distinction, one that would allow the pipeline but avoid the more difficult question.
“When I think of a trail, I think of something that is on top of the earth,” he said. “And when I think of a pipeline that is 600 feet below the surface, that doesn’t seem like a trail. So instead of having to draw this distinction between the trail and the land, why can’t we just say that the trail is on the surface and something that happens 600 feet below the surface is not the trail?”
That solution seemed to intrigue Justice Stephen G. Breyer, and Paul D. Clement, a lawyer for the project’s developers, said he was willing to prevail on that basis. “I represent the Atlantic Coast Pipeline,” Mr. Clement said. “It’s not my job to resist winning this case on a narrow ground.”
Chief Justice John G. Roberts Jr. asked about the practical consequences of a broad ruling against the pipeline in the case, U.S. Forest Service v. Cowpasture River Preservation Association, No. 18-1587.
“It really does erect an impermeable barrier,” he said of the trail, “to any pipeline from the area where the natural gas, those resources, are located and to the area east of it where there’s more of a need for them.”
Michael K. Kellogg, a lawyer for the environmental groups, disputed that, saying there are 55 pipelines running under the Appalachian Trail, including some on federal land built before the federal law and others on state and local land. But he conceded that, under his theory, the trail would act as a barrier on federal land.
Justice Sonia Sotomayor suggested that Mr. Kellogg’s argument may have been too sweeping and thus unlikely to satisfy her more skeptical colleagues.
Justice Alito said that “there may be all sorts of very good environmental reasons why this pipeline shouldn’t be built,” adding that a lower court was still considering them. “But do you,” he asked Mr. Kellogg, “have more than a ‘gotcha’ argument?”
After the argument, Chief Justice Roberts called Mr. Clement back to the lectern to congratulate him on “a rare milestone.” Mr. Clement had just presented his 100th argument, an achievement matched by just two other lawyers in this century.