A lawsuit awaiting a decision in front of the U.S. Supreme Court is delaying the reintroduction of a bill that would designate Route 66 as a National Historic Trail, according to a newsletter sent Thursday from the Route 66 Road Ahead Partnership’s chairman.
Bill Thomas, partnership chairman, stated the Supreme Court probably won’t rule on the Cowpasture River Preservation Association v. Forest Service case until June. Arguments before the high court are scheduled for next month.
Thomas prefaced his newsletter by stating the Route 66 National Historic Trail legislation stalled in Congress in December 2018 in part because of the government shutdown.
During the same timeframe, the 4th Circuit Court of Appeals issued a decision in the Cowpasture River Pre. Ass’n v. Forest Service court case, which had an unintended consequence of affecting the congressional passage of Route 66 legislation. The court case concerned a permit for the construction of a pipeline across the Appalachian National Trail. Since it was unclear whether the court case impacted national historic trails as well, the Route 66 bill was removed from the public lands package. The court case was then appealed to the Supreme Court. This past October it was learned that the Supreme Court has agreed to consider the Cowpasture case, with an anticipated ruling sometime before the end of June 2020.
Given this new development, the prevailing view is to wait to reintroduce the bill. One reason is to allow the legislation to be considered by Congress after the Judicial Branch has resolved the pending issue. This approach is likely the preference of congressional staff, who are aware that this grey area and uncertainty make it easier to wait until things are resolved by the court system. Second, is that the original legislation passed the House unanimously last year and had strong support in the Senate. Avoiding any change to the legislative language gives the bill a much stronger pathway to enactment. If the Supreme Court overturns the Cowpasture case and rejects the arguments made in that case, it will be possible to revert to the original language.
Thomas states the consensus is the Route 66 bill should not be reintroduced until after the Supreme Court’s ruling.
I found this summary at Justia Law about the Cowpasture case:
The Fourth Circuit granted a petition for review of the Forest Service’s Special Use Permit and Record of Decision authorizing Atlantic, the project developer, to construct the Atlantic Coast Pipeline through parts of the George Washington and Monongahela National Forests and granting a right of way across the Appalachian National Scenic Trail.
The court held that the Forest Service’s decisions in its 2012 Planning Rule and the 2016 Amendment to the 2012 Planning Rule violated the National Forest Management Act and the court remanded for further proceedings. The court also held that the Forest Service violated the National Environmental Policy Act, and that the Forest Service lacked statutory authority pursuant to the Mineral Leasing Act to grant a pipeline right of way across the Appalachian National Scenic Trail. The court concluded that the Forest Service abdicated its responsibility to preserve national forest resources, and noted that the Forest Service’s serious environmental concerns were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.
Bloomberg News reported about environmental groups filing a brief Wednesday to the Supreme Court:
Conservation groups are calling on the Supreme Court to reject efforts by the Trump administration and Dominion Energy Inc. to build a natural gas pipeline across the Appalachian Trail.
In Wednesday brief, the Virginia-based Cowpasture River Preservation Association, Wild Virginia, and other groups argued that the U.S. Forest Service lacks authority to approve the Atlantic Coast pipeline’s proposed route across part of the trail.
Government lawyers’ counterargument “is inconsistent with the relevant statutes and multiple federal regulations, and contradicts the government’s own longstanding approach to administering the Trail,” the groups told the court.
Other tidbits from Thomas’ newsletter:
— Route 66 Road Ahead will hold its annual board meeting this year in Springfield, Missouri, at the Hotel Vandivort on March 27-28. The Road Ahead’s annual Route 66 Stakeholders Reception and Update also will be at Hotel Vandivort on March 28. Everyone is invited to attend both events.
— The Route 66 Case Studies Project, designed to help communities learn how to leverage Route 66 for economic development purposes, should conclude by late summer. Rutgers University professor David Listokin, who shepherded the influential “Route 66 Economic Impact Study” in 2013, is leading the study.
— The Road Ahead and Research 66 have begun talks on identifying ways in which the two organizations can work with each other. Research 66, formerly known as Route 66 Archives, includes a set of museums, libraries and archival institutions in Route 66 states that are working to advance Route 66-related research and scholarship.
(Image of the U.S. Supreme Court building in Washington, D.C., by Ron Coleman via Flickr)