The US Supreme Court heard two oral arguments on Monday: US Forest Service v. Cowpasture River Preservation Association, in which the court will consider a case concerning a pipeline on federal forest land; and Opati v. Sudan, which asks whether the current version of the terrorism exception to the Foreign Sovereign Immunities Act allows punitive damages for pre-enactment conduct.
Cowpasture River Preservation Association concerns a 2018 permit issued by the US Forest Service authorizing a natural gas pipeline under the Appalachian Trail. Cowpasture River Reservation Association contested the pipeline, claiming that because the Appalachian Trail is administered by the National Park Service via the National Trail System Act, the Forest Service does not have the authority to issue the permit.
The US Court of Appeals for the Fourth Circuit concluded that only Congress could vest the Park Service with the ability to issue permits for a pipeline, and because they have not done so, it is legally impossible for a natural gas pipeline to be permitted on federal land through which the Appalachian Trial crosses.
The government argued that this reading “would dramatically change the trail system by transferring vast amounts of land into the National Park Service, which the Park Service administers and regulates to conserve the natural environment.” Council for the government said “If a tree falls on forest lands over the trail, it’s the Forest Service that’s responsible for it. You don’t call the nine Park Service employees at Harpers Ferry and ask them to come out and fix the tree.”
Representation for Cowpasture River argued that the statutes are clear about who is to make these decisions. “The Trails Act in 1968 says, without any equivocation, the Appalachian Trail shall be administered by the Secretary of the Interior who has delegated that to the Park Service. The General Authorities Act two years later said all areas administered by the Park Service, without limitation, are part of one National Park system.”
Opati v. Republic of Sudan is a case stemming from the 1998 bombing of the US Embassies in Kenya and Tanzania. The court is determining “whether consistent with this Court’s decision in Republic of Austria v. Altmann … the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 USC § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.” Counsel for Sudan argued that because punitive damages were made available in 2008, they are not available against the country for its pre-2008 conduct.