On July 6, 2020, the United States Supreme Court reinstated the U.S. Army Corps of Engineers (USACE) Nationwide 12 Permit (NWP-12) for use on oil and gas pipeline projects with the exception of the Keystone XL Pipeline. The original ruling on April 15, 2020 by a U.S. District Court in Montana vacated the NWP-12 and remanded it back to the USACE on the grounds that the permit’s reissuance in 2017 violated the Endangered Species Act. This was because proper consultation with the U.S. Fish and Wildlife Service regarding the effect of the proposed action on listed species did not occur prior to the permit’s reissuance by USACE. Shortly thereafter, the U.S. District Court in Montana amended its original ruling, limiting it to the construction of new oil and gas pipelines. The NWP-12 is a general permit used by USACE to authorize “minimal” impacts to wetlands and waterways for utility line projects such as pipelines, water/sewer infrastructure, and telecommunications.
Interestingly, the original ruling, although associated with the Keystone XL Pipeline, actually resulted from a legal challenge by the Northern Plains Resource Council along with other NGOs against the USACE, not the owner/operator of Keystone XL or the project itself. This was somewhat of an atypical strategy for challenging a major project and could be used as a test case for future challenges.
Recently, the obstacles created by the NWP-12 ruling have created major challenges for other major pipeline projects. Permitting challenges, including the recent NWP-12 rulings, were cited by Dominion Energy and Duke Energy as one of the reasons they decided to cancel their major natural gas pipeline project, the Atlantic Coast Pipeline.
Click here to view a webinar McCormick Taylor recently hosted discussing this case.