On April 17, we posted about the federal district court for Montana vacating the Nationwide Permit (NWP) 12 and enjoining the Army Corps of Engineers’ authorization for the use of NWP 12 on any utility projects in the nation (including pipelines, transmission lines and communications lines) on the grounds that the Corps had not complied with the Endangered Species Act (ESA) when it reissued NWP 12 in 2017. On May 11, in response to a motion by the Corps, the court significantly narrowed the scope of the remedy as follows:

“5. NWP 12 is vacated as it relates to the construction of new oil and gas pipelines pending completion of the consultation process and compliance with all environmental statutes and regulations. NWP 12 remains in place during remand insofar as it authorizes non-pipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects.

6. The Corps is enjoined from authoring any dredge or fill activities for the construction of new oil and gas pipelines under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.

The Corps remains able to authorize dredge or fill activities for nonpipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects.”

This is almost precisely the alternative relief suggested by the plaintiffs in their May 6 brief in opposition to the government’s motion to limit the remedy to a remand of NWP 12 and eliminate vacatur completely.

This decision, which may well be appealed, eliminates some of the uncertainty and disruption caused by the court’s blanket vacatur in the original order. New and in-process non-pipeline projects (e.g., solar, wind, transmission lines, communications lines) will be able to move forward during the remand and the Corps’ ESA consultation. Further, activities associated with maintaining or repairing existing pipelines will be able to continue. However, the court accepted the plaintiffs’ demand that the nationwide vacatur continue to apply to the construction of new oil and gas pipelines. This has already spawned litigation aimed at stopping pipelines currently under construction based on the vacatur of NWP 12.

The court’s decision is limited to the availability of NWP 12 and does not affect the ability to apply for or obtain individual permits where NWP 12 might otherwise have been used.

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Photo of Christopher Bell Christopher Bell

Chris Bell represents clients in civil and criminal enforcement and investigations, litigation, compliance counseling, emergency incident response, and legislative and regulatory advocacy (including appellate challenges to rulemakings) under all of the major environmental, health, safety and natural resource laws. His enforcement experience includes…

Chris Bell represents clients in civil and criminal enforcement and investigations, litigation, compliance counseling, emergency incident response, and legislative and regulatory advocacy (including appellate challenges to rulemakings) under all of the major environmental, health, safety and natural resource laws. His enforcement experience includes internal investigations, responding to grand jury investigations and agency information requests, and negotiating consent, probation, and debarment agreements. He is currently the EPA Independent Monitor overseeing the nation’s largest investor-owned energy company’s compliance with complex debarment and probation agreements arising from the resolution of a criminal enforcement case brought under the Clean Water Act.

Chris assists buyers, sellers, investors and financial institutions on the environmental aspects of transactions, including conducting due diligence, negotiating the environmental provisions of transactional documents, and identifying and executing insurance-based risk management opportunities. His transactional experience has included upstream, midstream and downstream energy projects, alternative energy projects, and transactions in the manufacturing, logistics, consumer products and chemicals sectors.

He helps clients evaluate and implement compliance and ethics programs (e.g., under the Sentencing Guidelines), and environmental, health and safety management systems (including based on ISO 14001). Chris advises clients on sustainable development, climate change, product and chemical stewardship and regulation, and value chain management. He recently served on an independent committee advising the senior management of a Fortune 50 company on its global sustainability strategy and reporting.

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