Energy companies and utility line developers have been busy navigating the twists and turns of recent changes to federal regulations. The latest ruling comes from the U.S. Supreme Court, which temporarily reinstates nationwide permit (NWP) 12 — a blanket permit heavily used by utility projects — for all projects except the Keystone XL oil pipeline while a full appeal of a U.S. District Court decision moves forward.
This controversy began in April 2020 with the Northern Plains Resource Council v. U.S. Army Corps of Engineers, which was heard in the U.S. District Court in Montana concerning the long-disputed TC Energy Keystone XL oil pipeline. In its ruling, the court determined that the U.S. Army Corps of Engineers (USACE) did not adequately verify that the pipeline project would not adversely affect endangered species. The court also determined that the USACE process for evaluating potential impacts to protected species as part of the NWP 12 evaluation was flawed because of the requirement for the applicant to self-determine potential for impacts (General Condition 18). As a result, the court vacated NWP 12 and remanded it to the USACE to comply with the Endangered Species Act (ESA).
A month later, the scope was narrowed in response to a motion filed by the USACE with the Montana court. The USACE requested a stay of the portions of the order vacating NWP 12, allowing for use of that permit for all projects, except for the Keystone XL oil pipeline. The USACE also suggested that the court allow nonpipeline construction activities and routine maintenance, inspection and repair activities to continue to use NWP 12.
The issued Order Amending Summary Judgment held that the USACE committed serious error in failing to engage in programmatic consultation in accordance with the ESA regarding potential impacts to protected species. However, USACE was able to demonstrate that some types of projects have more potential for adverse impacts than others. As a result, the court restricted use of the NWP 12 to utility projects and routine maintenance of pipelines, but did not allow for use of the NWP 12 for construction of new oil and gas pipelines.
The USACE then appealed to the U.S. Supreme Court to allow use of NWP 12 for all projects, including pipelines, while the appeal process was ongoing. That resulted in the July 2020 Supreme Court ruling that partially reversed the district court’s decision, temporarily reinstating NWP 12 for all projects except the Keystone XL oil pipeline.
The reinstatement of NWP 12 for utility line activities is significant for the USACE and all entities with projects in development, as the alternative individual permit process is more time consuming and cumbersome. The exemption preventing the Keystone XL oil pipeline from authorization under NWP 12 reinforces the challenges that large-scale pipelines face.
With increased scrutiny of pipeline permitting processes and these recent court decisions, it is essential that projects perform a thorough evaluation of potential environmental impacts as a whole, in addition to evaluating crossings of regulated waters. These evaluations demand a special focus on NEPA and ESA considerations to adequately demonstrate compliance with these regulations and limit potential future challenges to new infrastructure.
Wetland scientists with extensive permitting experience can help you navigate the latest federal, state and local requirements to keep your projects moving forward.