Plaintiffs make case against Keystone XL in appeals court

Jan. 4, 2021

Environmental activists told a federal appeals court it should uphold a district court’s decision to block construction of the Keystone XL crude oil pipeline because the project received a permit under a nationwide program without sufficient consultation over potential harm to endangered species.

The environmental groups argued that the Endangered Species Act and federal regulations required the US Army Corps of Engineers to consult with the US Fish and Wildlife Service (FWS) not only on the specific project—as it did—but also on the nationwide permit program applied to that project.

The Corps of Engineers has contended its consultation with the FWS on the project took care of its Endangered Species Act obligation.

Their brief was filed Dec. 15 in the US Court of Appeals for the Ninth Circuit. The case is Northern Plains v. US Army Corps of Engineers, an appeal from the US District Court for the District of Montana.

TC Energy Corp., a defendant along with the Corps, intends to build the pipeline 882 miles from the Canadian border near Morgan, Mont., to Steele City, Neb. At Steele City, it would connect with an existing line to take oil south to the pipeline hub at Cushing, Okla.

President-elect Joe Biden has pledged to block the line, although that may be difficult given that TC Energy can continue the legal fight even if the government under Biden throws in the towel. Industry groups and the state of Montana, intervening in the case on the side of the Corps and TC Energy, also could continue the appeals.

Corps says it consulted properly

The case hinges on a dispute over two layers of permitting, at the program level and the project level. The Corps, in a brief filed Aug. 26, said its consultations with the FWS for the Keystone XL project were sufficient, and the FWS concluded there would be “no jeopardy” to protected species.

The Corps explained that when Congress created the nationwide permit program in 1977, it did so for the specific purpose of streamlining permits in routine situations, such as pipeline crossings of streams and wetlands. The Corps uses NWP 12 an estimated 14,000 times annually.

The Corps first issued NWP 12 in 1982 for “utility lines,” including oil and gas pipelines, electric power lines, telecommunications lines, and some other activities. The Corps has periodically reissued NWP 12. It last did so in early January 2017 without consulting with the FWS.

The Corps explained to the appeals court that General Condition 18 in NWP 12 provides that “no activity is authorized under any [nationwide permit] which ‘may affect’ a listed species or critical habitat, unless ESA Section 7 consultation addressing the effects of the proposed activity has been completed.”

Because the Corps consulted with the FWS on Keystone XL, as required by General Condition 18, that took care of the programmatic obligation as well as the project review, according to the Corps.

More consultation demanded

The environmental groups countered that federal regulations and the plain language of the Endangered Species Act require consultation with federal wildlife biologists whenever a federal action might affect protected species. The reissuance of NWP 12 in 2017 was one such federal action and needed its own programmatic consultation, the groups said.

“Thus, pursuant to the two-step system created by those regulations, consultation is necessary both for the issuance of NWP 12 and for project-specific actions under the permit that may affect listed species,” the groups said.

One twist in the case is that NWP 12 was reissued in the waning days of the Obama administration. US District Judge Brian Morris, who ruled that the reissuance should have included an Endangered Species Act consultation, was appointed to the bench by President Obama.

The district court judge went farther in his initial ruling April 15. He not only blocked Keystone XL but vacated NWP 12, meaning its thousands of uses each year were halted. The judge backtracked somewhat May 11 with a ruling narrowing his vacatur of NWP 12 to block only uses of its for construction of new oil and gas pipelines.

The US Supreme Court stayed the district judge’s decision by restricting it only to the Keystone XL project, pending the outcome of appeals.

Wary of asking for too much, the environmental plaintiffs are asking the appeals court only to block the Keystone XL project rather than agreeing with the district court to block use of NWP 12 for all construction of new oil and natural gas pipelines nationwide.

The plaintiffs include Northern Plains Resource Council, the Sierra Club, the Center for Biological Diversity, the Natural Resources Defense Council, Friends of the Earth, and Bold Alliance.