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On September 15, 2020, the United States Army Corps of Engineers (Corps) issued its “Proposal to Reissue and Modify Nationwide Permits” (Proposed Rule). Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, the Corps issues nationwide permits (NWPs) that authorize activities that will result in no more than minimal individual and cumulative adverse environmental effects. These permits are designed to streamline the permitting process for certain activities, while also ensuring that jurisdictional waters are protected. Most significant to the oil and gas industry, the Corps proposes to (1) modify NWP 12 to be limited to the authorization of oil and natural gas pipeline activities, and (2) streamline and reduce pre-construction notice requirements for pipelines subject to NWP 12. The comment period under the proposed rule closes on November 16, 2020.
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Continue Reading Corps Proposes to Modify Nationwide Permit 12 to Simplify Pre-Construction Notification for Pipelines

On July 6, 2020, the Supreme Court partially and temporarily overturned a nationwide injunction that prevented the U.S. Army Corps of Engineers (“Corps”) from using Nationwide Permit 12 (“NWP 12”) for construction of new oil and gas pipelines. NWP 12 authorizes “utility line activities” that have minimal impacts on jurisdictional waters under the Clean Water Act. In April 2020, a federal judge in the District of Montana, while considering challenges to the construction of the Keystone XL pipeline, completely vacated the Corps’ use of NWP 12 for all activities (including pipelines, broadband, electric, water, and sewer) until the Corps consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to the Endangered Species Act. Nearly a month later, following a motion from the Corps seeking relief from that vacatur, the district court amended its April 2020 ruling to apply only to new oil and gas pipeline construction projects other than “maintenance, inspection, and repair activities” on existing pipelines.
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Continue Reading Update: U.S. Supreme Court Allows Use of NWP 12

In light of its recent decision in County of Maui v. Hawaii Wildlife Fund, the Supreme Court of the United States has instructed the United States Court of Appeals for the Fourth Circuit to revisit its decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P. On remand, the Fourth Circuit will be the first lower court to apply the Supreme Court’s new “functional equivalent” standard to determine whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. Under this “functional equivalent” standard, courts must consider a variety of factors to determine whether a release constitutes a “discharge of any pollutant” as defined by the CWA, including: (1) transit time, (2) distance traveled, (3) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (4) the manner by or area in which the pollutant enters the navigable waters, and (5) the degree to which the pollution (at that point) has maintained its specific identity. As we discussed in detail on a previous post, it is unclear how lower courts will apply these subjective factors, and notably this initial case will be applying the standard specifically in the context of pipelines.
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Continue Reading Fourth Circuit Firsts: First to Apply Maui Test and First to Determine CWA Applicability to Pipelines

As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (“Corps”) Nationwide Permit (“NWP 12”) on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. The court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of projects that are unrelated to the project at issue in that case, the Keystone XL Pipeline.  Yesterday, the Corps requested that the court stay the effect of its ruling pending the Corps’ appeal to the Ninth Circuit. The Corps requested in the alternative that the court stay its ruling with respect to all projects across the country, except the Keystone XL Pipeline.
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Continue Reading Update: Corps Seeks Stay of Montana District Court’s NWP 12 Ruling

A Montana federal district court recently dismissed a challenge by an environmental group seeking to compel the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) to comply with certain provisions of the Mineral Leasing Act, 30 U.S.C. § 181 et seq.,. See Wildearth Guardians v. Chao, CV-18-110-GF-BMM, 2020 WL 1875472 (D. Mont. Apr. 15, 2020).  In this case, the environmental group Wildearth Guardians brought suit under the Administrative Procedure Act (“APA”) alleging that PHMSA failed to comply with its legal obligation under the Mineral Leasing Act to “[p]eriodically, but at least once a year,  . . . cause the examination of all pipelines and associated facilities on Federal lands[.]”  Although PHMSA did not contest Wildearth’s assertion that the agency had failed to periodically inspect certain pipelines on federal lands, PHMSA argued that the suit must be dismissed because Wildearth lacked standing to challenge PHMSA’s inaction and the environmental group was unable demonstrate that PHMSA’s failure to inspect the pipelines constituted a “failure to act” under the APA. The district court agreed and narrowly interpreted what constitutes a “failure to act” under  the APA in a manner that could present obstacles for third parties seeking to compel agencies to comply with its their regulatory obligations.
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Continue Reading Environmental Group’s Attempt to Compel PHMSA Action Dismissed

On April 9, the United States Court of Appeals for the Sixth Circuit heard arguments in National Wildlife Federation v. Secretary of the Department of Transportation, a pair of consolidated appeals arising from approval of two spill response plans by the Pipeline and Hazardous Materials Safety Administration (PHMSA). Operators of many onshore oil pipelines must submit, and PHMSA must review, plans to prevent or respond to a “worst case discharge” into or on navigable waters or their adjoining shorelines (49 C.F.R. Part 194). This planning process is a product of the Oil Pollution Act’s amendments to the Clean Water Act. In ruling on these appeals, the Sixth Circuit will determine whether PHMSA approval of those plans requires something that the agency historically has not done: consultation under the Endangered Species Act (ESA) or review under the National Environmental Policy Act (NEPA).
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Continue Reading Will Pipeline Spill Response Plans Require a Biological Opinion or NEPA Review?