Guest blog post by Summer Legal Intern Rachel White
On July 6, 2020, the Supreme Court of the United States denied an application that would allow for the Keystone XL pipeline to continue construction pending an environmental review of their Nationwide Permit 12 (“NWP 12”). This means that construction for the pipeline is to be put on hold until it undergoes a strict and lengthy review process, which could last up until and into 2021.
What is the Nationwide Permit 12?
The NWP 12 is one of 52 nationwide permits issued by the U.S. Army Corps of Engineers (“Corps”) dealing with project developments in the waters of the United States. The NWP 12 is a general permit that authorizes “minimal impacts” to streams and other waterways during the construction of utility lines, including pipelines. When determining whether to issue a NWP 12 permit, the Corps is constrained by what is known as General Condition 18. Under General Condition 18, the Corps is prohibited from authorizing activities that are likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. In other words, any activity that “may affect” a listed species or critical habitat cannot be authorized.
However, this process is not as protective as it may seem at first glance. The NWP 12 process was designed to fast track the permitting process by segmenting pieces of a pipeline project rather than considering the total impacts of the whole pipeline. For instance, if a project will cross over many waterways, the Corps can segment each waterway and grant a NWP 12 permit for each without considering the effect of the project as a whole on the species and their habitats.
A Confusing Chain of Court Room Challenges to NWP 12
U.S. Army Corp waterbody crossing authorized under NWP 12 in Jefferson County, Ohio.
In May of 2020, the 9th Circuit Court of Appeals refused a request to overturn a Montana District Court Decision holding that all construction for new and continuing projects that were issued a NWP 12 be halted pending environmental review. While this refusal looked promising for the future of lessening harmful pipeline construction, the Supreme Court order issued on July 6th, 2020, narrowed the 9th Circuit’s holding immensely. As the Keystone XL pipeline will halt construction until the NWP 12 is reviewed in light of the effects it will have on endangered species and their habitats, approximately 70 or so other pipelines will continue construction. Construction will continue even though those 70 other pipelines were issued the same NWP 12 permit as Keystone XL, all of which were deemed as violating the Endangered Species Act.
All of this boils down to a few troubling thoughts moving forward. First, this leads to a question of uniformity and consistency. The Supreme Court order came without explanation, leaving open the question as to why one project is to be halted while all others with the same permit are to continue. No matter what the reason was for the decision, there should be a uniform standard that the issuance of NWP 12 permits violating the ESA should be halted during review. Second, this order will ultimately lead to a harder time for environmental groups to see effective legal remedies in the courtroom. The Supreme Court order comes right before a July 15, 2020 decision of the D.C. Court of Appeals reversing a District Court decision to empty and halt construction of the Dakota Access pipeline. Decisions like these push momentum the opposite way, making it harder for justice groups to gain support and easier for large energy companies to see their projects fast tracked. This leads to one last troubling consequence, which is that this order will make it easier for large energy companies to push through proposed projects all while neglecting a determination that dozens of NWP 12 permits violated the ESA. Just one day prior to the Supreme Court order, the two energy companies that planned on constructing the Atlantic Coast pipeline announced that the project would no longer be moving forward. In a press release, they specifically sighted the Montana and Federal District Court decisions as one of the reasons for their cancelation. This easily could change due to the recent Supreme Court order. If that does happen, it is easy to see a future where energy companies are quick to build while the tide is still on their side.
While the order halting the Keystone XL pipeline construction is no doubt an environmental win, the fact remains that the other 70 pipelines will continue while the validity of the permit needed to build the projects in the first place is being questioned. The Supreme Court order can at first look like one step forward, but we can only hope that it is not also many steps back.
