The U.S. District Court for Montana amended and narrowed its April 15, 2020 order yesterday vacating Nationwide Permit (NWP) 12, which authorizes minimal impacts from “utility line activities” to jurisdictional waters. Despite the case centering on the Keystone XL Pipeline, as previously reported, the court’s April 15 order vacated NWP 12 nationwide for all activities (including pipelines, broadband, electric, water and sewer) until the U.S. Army Corps of Engineers (Corps) consults with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) pursuant to the Endangered Species Act (ESA). Nearly a month later, the court amended the vacatur’s applicability by limiting it to the construction of new oil and gas pipelines, pending completion of the consultation process and compliance with all environmental statutes and regulations. Under the amended order, the Corps may continue to authorize the use of NWP 12 for “maintenance, inspection, and repair activities” on existing projects, including existing pipelines, as well as non-pipeline construction activities (e.g., broadband, electric, water, and sewer).
The court reasoned that “large-scale” oil and gas pipelines, which potentially affect numerous water bodies and involve the kinds of cumulative impacts to be addressed by the Corps in consultation with the Services, pose the greatest threat to ESA-listed species. According to the court, the species impacts associated with NWP 12 authorizations for these major oil and gas pipelines outweigh the economic disruptions of the vacatur. The court further reasoned that new oil and gas pipeline projects may still receive the necessary authorizations through the more cumbersome individual Section 404 permit process.
In past filings, the federal government indicated that the Solicitor General has already authorized an appeal of the April 15 order to the Ninth Circuit. We expect the Corps to appeal the April 15 order and to challenge the court’s underlying ruling that the Corps was required to consult with the Services at the programmatic level. In addition to the implications for the use of NWP 12, that aspect of the April 15 ruling could impact the Corps’ broader Nationwide Permitting program, which authorizes a wide range of activities, including renewable energy projects and commercial and residential developments.
Based on the court’s amended order, the Corps may authorize routine maintenance, inspection, and repair dredge and fill activities on existing NWP 12 pipeline projects. The Corps remains enjoined, however, from authorizing dredge or fill for new oil and gas pipeline construction projects pending completion of the consultation process and compliance with all environmental statutes and regulations.