MARY REICHARD, HOST: It’s Monday the 20th of July, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning—
NICK EICHER, HOST: Whoa, whoa, hang on. You sound an awful lot like Mary Reichard!
REICHARD: The very same! Back from vacation. Thought I’d jump in here before you jump out, Mr. Eicher!
EICHER: Yes, taking the whole family to the beach and—as Norah Jones might say—you’ll find me somewhere between my dreams / with the sun on my face.
Hope the Reichards had some restful time…
REICHARD: Ha! “Restful” isn’t a Reichard trait, really. We did some heavy-duty hiking in the Great Smoky Mountains.
I also went to my high school reunion on Saturday. By the time you get to the 40th one, all the facades are gone and everybody’s just folks, you know?
I feel refreshed and it feels good to be back in the saddle here.
EICHER: Well, your legal-eagle partner Jenny Rough assembled last week’s and this week’s Legal Docket‚ so let’s get into it. Her case this week concerns an old yet timely constitutional law issue that goes beyond the dispute between the parties. So let’s listen.
JENNY ROUGH, REPORTER: The Appalachian Trail runs from Georgia to Maine. It’s over 2,000 miles and passes through 14 states. My husband and I have hiked sections of it near our home in Virginia. A wonderful footpath.
Well, the Appalachian Trail ended up being the focal point of a case before the Supreme Court this year: U.S. Forest Service v. Cowpasture River Preservation Association.
The facts involve a natural gas pipeline. A development company wanted to dig a tunnel through the George Washington National Forest in Virginia.
The purpose was to run a pipeline from one side of a mountain to the other.
Part of the Appalachian Trail is in that forest. The pipeline would cross 600-feet underneath it.
Environmental groups sued to stop it.
They argued the Forest Service, which owns the forestland, didn’t have the authority to allow the pipeline to run underneath the trail. That the National Park Service has jurisdiction over the trail, so permitting had to come through the channels of that separate federal agency.
Other federal agencies and acts apply here, too.
An alphabet soup of them: FERC, Federal Energy Regulatory Commission; MLA, Mineral Leasing Act; NTSA, National Trails System Act. You get the idea.
The important thing to know is that they conflict and override each other, and have different philosophies and interests.
Oh, and also? The laws at play here are administered by agencies that fall under the executive branch.
The nonprofits who sued also have their interests.
Southern Environmental Law Center lawyer Sarah Francisco explains a common concern with natural gas. This clip is from a video on the law center’s website.
SARAH FRANCISCO: We’re concerned about impacts to water quality, we’re concerned about impacts to wildlife habitat in the national forests, and people are concerned about the impacts on their land and on the places that are important to them.
The debate over natural gas versus renewable energy has been going on for years. Natural gas is a fossil fuel. Its extraction involves fracking, a process that uses water, sand, and chemicals to crack rock formations deep in the Earth.
Environmental lawyer Jim Vines says the environmental groups were not playing “small ball” with the case.
VINES: The environmentalists were what I might call, you know, swinging for the fences here, going for the grand slam home run. If they could effectively get the Supreme Court to say that the Appalachian Trail is an impenetrable barrier from Maine to Georgia to get natural gas through to the East Coast that would be huge victory for the environmental community.
Basically, the 2,000-mile trail would be like an insurmountable rock wall blocking similar projects. Given all that, you might have made the same assumption I did:
VINES: What looks to be just from the names of the case and a superficial understanding of the nature of it. You would think this is an environmental law case.
But it’s not.
The court applied property law to resolve the dispute. Here’s a quick summary of the majority opinion.
VINES: If you’re a farmer and you grant somebody horse trail rights for recreational horse riding, you haven’t, so to speak, given away the whole farm. You know, they have rights to traverse your property probably limited by statements about not tearing up the land too much, and things like that. But it’s very restrictive. And so the court’s analogy here is the majority says those are two different things, that ribbon of easement sitting on top of a big land mass are two different land rights, and one party controls one and the other party controls the other.
They kind of finish up with this catchy sentence that says a trail is a trail and land is land.
The easement is a different thing than the land underlying the easement. Case resolved.
VINES: It seems pretty elementary.
An elementary property issue, yet it took the highest court in the land to resolve it…
VINES: I thought, there’s, you know, what’s going on here? This is, why is the court suddenly interested in the Appalachian Trail and mineral rights? I mean, it’s not abortion. It’s not flag burning. It’s not First Amendment.
For me, this all brought to mind the movie Amistad. Anthony Hopkins plays John Quincy Adams arguing before the Supreme Court.
ANTHONY HOPKINS PLAYING JOHN QUINCY ADAMS: Why are we here? How is it that a simple, plain property issue should now find itself so ennobled as to be argued before the Supreme Court of the United States of America?
Amistad is about the evils of slavery. This case is not about that, not by a long shot. But—to quote Adams’ oral argument in the movie again—it might be about the “long, powerful arm of the executive branch.”
Vines says this Cowpasture opinion could be a carefully planned effort to tee up a significant constitutional law issue: the delegation doctrine.
Sometimes called the non-delegation doctrine. Or the over-delegation doctrine.
Whatever any given lawyer calls it, here’s how every lawyer defines it: The doctrine holds that the legislative branch can’t delegate its powers to other entities.
The Cowpasture decision came down 7-2. Justice Clarence Thomas delivered it.
He could’ve ended the opinion after the property law analysis. But he didn’t.
VINES: And that jumps out at you because if you notice up at the beginning where it talks about what justice joined, the opinion, it lists Justices Bryer and Ginsburg joining the majority. But then in a little footnote, it says Justice Ginsburg does not join Section III(B)(2). Why would she drop out of that? Just that particular portion? And that’s what I think really takes you to the secret of why this case is interesting.
Section III(B)(2) is dicta, not part of the court’s formal ruling.
VINES: If you scan about halfway through that section you hit the word delegation. And if you have any familiarity with what’s called the non-delegation doctrine that really focuses on what FDR, president Franklin Delano Roosevelt, was trying to do with New Deal legislation in the ‘30s at the heart of the Depression. Basically what was going on there is the Roosevelt administration was trying to do things to help the country get back on its feet. And they were creating a lot of executive branch agencies to have a lot of authority over things, like setting prices for particular industries, and setting various standards for particular markets. Back in those days, that was very uncommon in that we didn’t have a whole laundry list of federal agencies in the ‘30s that we have now.
The Constitution grants legislative authority to Congress. That’s Article 1, Section 1.
The executive branch is not given that power.
VINES: So, you—if an FDR New Deal agency, suddenly sets a price control regime for some industry the conservatives would say hey, that’s the work of Congress. That’s not what an executive branch agency is supposed to do. And so the New Deal folks would say, well, no, it’s clearly in the legislation that was passed by Congress to allow the agency to do this particular thing.
Today, we’re used to these agencies and departments and commissions and bureaus. We barely give them a second thought.
VINES: We now live under a federal executive branch that’s got countless agencies, countless offices, countless administration, and the regulated community has to follow, you know, this incredibly complex spider web of agencies.
But that wasn’t always so. In the 1930s, the Supreme Court developed a line of cases that struck down pieces of legislation because Congress gave the executive branch too much federal rule-making authority in violation of the Constitution.
But then the makeup of the court shifted.
VINES: The court started upholding those pieces of legislation. The court for all practical purposes effectively buried the delegation doctrine.
The court gutted it.
But—in 2001—along came a case where Justice Thomas wrote this in a short but significant concurrence: “On a future day … I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”
At the time he was the only one willing to think about it.
Fast forward another 20 years. Today, the makeup of the court has changed again. Two more justices have expressed skepticism over delegating power to agencies.
VINES: Gorsuch and Kavanaugh have stated in various ways that they would be interested in turning the clock back on that. They think the quote unquote “administrative state” has gotten too large and that the Supreme Court’s case law to sort of reign in the administrative state has become essentially toothless.
The undercurrent of this Cowpasture case seems to be a quiet signal. A proposal. An invitation for a future delegation doctrine challenge.
And that’s it for this week’s Legal Docket.