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.

 

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Photo of Catherine D. Little Catherine D. Little

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and…

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and administrative adjudication under the Pipeline Safety Act, Natural Gas Act, Clean Water Act (including wetlands), Oil Pollution Act and National Environmental Policy Act. Her team has sought appellate review for enforcement matters with favorable results and works closely with industry and regulators alike to obtain favorable results for their clients. Catherine also regularly counsels clients with respect to pipeline construction and design issues, permitting, confidential investigations, spill and release reporting and response.

Photo of Annie M. Cook Annie M. Cook

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean…

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean Water Act, the Oil Pollution Act, National Environment Policy Act, TCSA, and related state and local laws.  Her team also represents clients regarding related transportation security issues and in responding to inquiries and investigations from the Department of Transportation’s Office of Inspector General. Annie’s clients include owners and operators of oil and natural gas pipeline and related storage, terminal, and LNG facilities as well as other energy industry stakeholders.