The Supreme Court has temporarily restored the use of a streamlined nationwide permit for new oil and natural gas pipelines.
A district court issued an order Apr. 15, amended May 11, that blocked the use of Nationwide Permit 12 (NWP 12) for all new oil and gas pipeline construction anywhere in the country (OGJ Online, May 13, 2020). The order, from the US District Court for the District of Montana, grew out of a lawsuit by environmental activists opposed to the proposed Keystone XL Pipeline.
The Supreme Court July 6 issued a stay preventing the district court’s order from taking effect nationwide while allowing it to remain in effect for Keystone XL as that fight continues at the appellate court level and possibly longer if the case ends up at the Supreme Court. The stay is to end when the case is resolved.
The case is Northern Plains Resource Council v. US Army Corps of Engineers. The government has appealed to the US Court of Appeals for the Ninth Circuit, where an opening brief by the Corps of Engineers is due by Aug. 21.
Impacts of court’s action
The suspension of the use of NWP 12 was a jolt to the oil and gas industry. The general permit is used thousands of times annually, according to the Corps of Engineers. And although most of those uses are not for new construction, the suspension for new construction could affect more than 70 pipelines this year alone, an American Petroleum Institute official recently said.
The Corps of Engineers turned to the Supreme Court for a stay June 15. Its request was supported by filings from a coalition of energy industry associations, a coalition of 18 states, and pipeline company TC Energy Corp., developer of the Keystone XL project.
Without the general permit, projects would need individual permits under the Clean Water Act for each water crossing. Projects could take up to 2 years longer for permitting, and even a 1-year delay would raise a project’s cost by 5.9%, the energy industry associations told the court.
The Supreme Court did not explain why it was granting the stay. The court typically has a high volume of petitions and does not take the time to explain why it accepts or rejects each one.
Arguments over court’s action
The Corps of Engineers and its allies in seeking the stay stressed the seriousness of the disruption, and they argued that the district court had no business issuing a nationwide prohibition rather than one focused only on Keystone XL. They also explained their disagreement with the district court over the idea that renewal of the NWP 12 program in 2017 required Endangered Species Act consultations.
“The Corps reasonably determined that merely re-issuing NWP 12 would have no effect on listed species or critical habitat—and therefore did not trigger any consultation requirement,” US Solicitor General Noel Francisco told the Supreme Court on behalf of the Corps.
He explained that the NWP 12 program requires consultations on possible impacts on listed species or their habitats in any situation where a specific pipeline project might have an impact on an endangered species.
The district court ruled that renewal of the program should have involved “programmatic” consultations to consider overall impacts rather than individual project impacts. It ordered suspension of use of NWP 12 until consultations were completed, a process that was expected to take more than a year.
Consultations are conducted with the US Fish and Wildlife Service and the National Marine Fisheries Service, the two agencies with authority over regulation under the Endangered Species Act.
