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.