Our Insights

Nationwide Permit 12: What Happened, Where It Stands, and What Happens Next?

July 24, 2020

By Elyse H. Akhbari
Bricker & Eckler, LLP

This article was originally published in Currents, POWER’s quarterly Environmental newsletter.

On April 15, 2020, the United States District Court for the District of Montana issued an order with potentially broad-sweeping implications for energy-related projects across the country. The case, Northern Plains Resource Council, et al. v. United States Army Corps of Engineers, et al., created uncertainty for projects that rely on the United States Army Corps of Engineers’ (the Corps) Nationwide Permit 12 (NWP-12) authorization to complete projects in an efficient and timely manner.

Regulatory Background

NWP-12 is a widely used general permit under the Clean Water Act (CWA) that authorizes discharges of dredged or fill material into jurisdictional waters as required for the construction, maintenance, repair and removal of utility lines and associated facilities, including oil and gas pipelines.

NWP-12, like all nationwide permits, is subject to General Conditions set forth in federal regulations. General Condition 18 prohibits the use of any nationwide permit for activities that are likely to jeopardize threatened or endangered species under the Endangered Species Act (ESA) or destroy or adversely modify designated critical habitat for such species.

Section 7(a)(2) of the ESA requires the Corps to determine “at the earliest possible time” whether any action it takes “may affect” listed endangered species and/or critical habitat. If so, then the Corps is required to consult with the U.S. Fish and Wildlife Service (USFWS) and/or the National Marine Fisheries Service (NMFS).

Every five years, the Corps reissues its nationwide permits with various changes. In the 2017 reissuance, the Corps determined that the reissuance of NWP-12 would not affect listed species or critical habitat and therefore did not consult with the USFWS or the NMFS.

The Northern Plains Case

In Northern Plains, Plaintiffs challenged the Corps’ authorization of NWP-12 in connection with the Keystone XL Pipeline. Plaintiffs claimed that the Corps’ 2017 reissuance of NWP-12 violated the ESA, due to its failure to undertake the typical consultation process with the USFWS and NMFS.

The District Court agreed. The Court thus vacated NWP-12, enjoining the Corps from authorizing any dredge or fill activities under NWP-12 pending the completion of the ESA consultation process. The ruling was not limited to pipelines—putting into jeopardy other industries’ reliance on NWP-12.

The Aftermath

After the District Court’s ruling, the Corps and TC Energy (the Permit applicant) filed motions for a partial stay with the District Court. Plaintiffs opposed the stay and suggested instead that the vacatur and the associated injunction apply only to the construction of new oil and gas pipelines.

Again, the Court agreed. On May 11, 2020, the Court issued an amended order narrowing the scope of its earlier vacatur and injunction to “the construction of new oil and gas pipelines” while allowing other projects governed by NWP-12 to proceed.

After a denied appeal to the U.S. Ninth Circuit Court of Appeals, the Corps filed an application to the U.S. Supreme Court (Supreme Court) on June 15, 2020, seeking a stay of the May 11, 2020 order. The Corps requested that the stay be issued pending consideration and disposition of the appeal to the Ninth Circuit, as well as pending any further proceedings that would be filed in the Supreme Court. The Corps argued that the trial court’s order should not survive appellate review, one being the order lacks any sound basis in the ESA, and absent a stay pending appeal, the Corps and the public would face irreparable harm.

On July 6, 2020, the Supreme Court order, authored by Justice Kagan, stayed the lower court’s order, except as it applies to the Keystone XL pipeline. The Supreme Court ruled that the stay is to remain in place until the disposition of the appeal still pending before the Ninth Circuit Court of Appeals, and/or any future relief sought or granted by the Supreme Court.

What to Watch Out for Next?

For the time being, the July 6 decision means that the Montana District Court holding is limited only to the Keystone XL pipeline, while the Ninth Circuit appeal is pending. As a result, NWP-12 can technically be reinstated for use by other pipeline developers. However, the Supreme Court wrote that if a future petition for a writ of certiorari (e.g., petition for Supreme Court appeal) is denied for the Keystone XL pipeline (following a decision on the merits by the Ninth Circuit), the stay would terminate.

Due to the interim nature of the decision by the Supreme Court, the regulated community should remain attentive to developments in this case and announcements from the Corps regarding their intention to begin processing NWP-12 again.

About the Author:

With extensive experience with governmental authorities and regulatory agencies, Elyse Akhbari’s litigation practice focuses on environmental and energy law. As a former Assistant Attorney General in the Ohio Attorney General’s Environmental Enforcement Section, Elyse interprets and provides practical advice on governmental regulations and, specifically, possesses a deep understanding of the Clean Water Act, Solid and Hazardous Waste laws and CERCLA. Her skills include first chair trial and hearing experience, client counseling, work with expert witnesses, discovery and settlement negotiations.