On July 6, the U.S. Supreme Court made the Army Corps of Engineers’ Nationwide Permit 12 (NWP 12) under Section 404 of the Clean Water Act available for new oil and gas pipeline projects except for the Keystone XL project. The High Court issued an order staying the May 11 ruling by Montana Federal Judge Brian Morris barring use of NWP12 nationally for those projects (Northern Pipeline Resource Council v. Army Corps of Engineers). Judge Morris faulted the Corps for not conducting Programmatic Endangered Species Act consultation even though the Plaintiffs only sought to prevent NWP 12 use for the Keystone XL project.
The Corps of Engineers estimates that it uses NWP 12 about 5,000 times annually to expedite approval of linear infrastructure projects, particularly oil and gas pipelines, and President Trump’s June 4, 2020 Executive Order 13927 cited NWP 12’s importance for America’s economic recovery. Judge Morris’ ruling had dealt a serious blow to that process and after the Ninth Circuit refused to stay the ruling, the Corps requested that the Supreme Court grant the stay.
The Ramifications of the Supreme Court’s Decision
The SCOTUS order will provide a window of time for the Corps for NWP 12 permit decisions. This stay will remain in effect while the Ninth Circuit considers the appeal of Judge Morris’ rulings and through the time for possible Supreme Court review. This process could take months, most likely stretching into 2021.
But there are still significant issues involving how this may affect oil and gas pipeline projects including:
Ongoing risk. Pipeline projects are risky investments and projects such as the Atlantic Coast and Dakota Access Pipelines have either been dropped or significantly delayed through litigation. Project proponents will need to carefully analyze whether reliance on NWP 12 is too risky given the uncertainty over pending and future litigation. While every project presents unique circumstances, some factors to consider might include time available, impacts to environmentally sensitive resources, routing complexities and planned construction techniques.
Complexity. Pipeline projects are complex and often involve submission of numerous studies and data to meet NWP 12 conditions. While NWP 12 can be verified within 45 days of a completed application, the process often does not move quickly and this “45-day clock” for verification does not start until the Corps District advises the applicant that the application is complete. Should the Ninth Circuit uphold Judge Morris’ rulings vacating NWP 12, proponents may lose their ability to rely on NWP 12 despite having committed resources to meet NWP 12 application submission requirements.
Corps Response . Corps Districts may rely on alternatives such as Regional General Permits or even individual permits that may be safer to defend in litigation. On the other hand some Corps districts may feel that NWP 12 can be used safely without legal risk. It is important for project proponents to work closely with the local Corps district involved on a case- by-case basis to ensure that they have the best information available to make an informed judgment on the appropriate permit path for their project.
Stay tuned. Dawson & Associates will continue watching NWP 12 developments closely.
Larry Liebesman, Esq.
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.