N. Plains Res. Council v. United States Army Corps of Eng’rs, No. 4:19-cv-00044-BMM, 2020 BL 35412 (9th Cir. May 14, 2020)

Oil and gas pipeline construction may no longer proceed under Nationwide Water Permit 12 (NWP 12). The Ninth Circuit, by way of a two-judge panel, denied challenges to a district court decision vacating NWP 12 and enjoining the United States Army Corps (Army Corps) from authorizing oil and gas pipeline construction projects pursuant to NWP 12. The Order, which was issued without an opinion, has national effect and set a briefing schedule for reconsideration of a motion for an administrative stay. N. Plains Res. Council v. United States Army Corps of Eng’rs, No. 4:19-cv-00044-BMM.

Statutory and Regulatory History

Pursuant to the Clean Water Act (CWA), pollutants such as dredge or fill material may not be released into navigable waters, which include wetlands and tributaries, without a permit. The CWA tasks the Army Corps with issuing permits allowing the disposal of pollutants on a general or individual basis. Individual permits are issued for site-specific projects after an exacting, case-by-case review of the project and its site and resources. Conversely, parties whose projects are similar in nature, cause only minimal adverse environmental effects separately, and cumulatively have minimal adverse environmental effects may apply for a general permit. A general permit, the purpose of which is to allow pollutant-producing projects with fewer regulatory restrictions, is reserved for general activities, such as utility line construction projects.

NWP 12 is a general permit that authorizes utility line construction projects to discharge pollutants into jurisdictional waters of the United States, so long as certain general and region-specific conditions are satisfied. Since NWP 12 was first issued in 1977, the stringency of what must be shown to qualify for the general permit has varied. Its standards were relaxed in 2017, when the Army Corps lessened the requirements of Condition 18 (of which there are 32). Condition 18, before 2017, incorporated the Endangered Species Act (ESA), which instructs the Army Corps to notify the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) when a potential project might affect a protected species or their critical habitat. Projects were not to proceed until the FWS and the NMFS determined that a project’s pollutants will not destroy a protected species or adversely modify their habitat.

But the Army Corps, aiming to expedite the process by which permits are issued, eliminated Condition 18’s mandate for programmatic consultation. Because many regional requirements include the same provision (e.g., the District of Omaha requires compliance with the ESA, including its protections of protected species), the Army Corps determined that programmatic consultation had become duplicative and slowed the process of granting general permits. That is, a project authorized to proceed under NWP 12 must comply with regional requirements, many of which require consultation with the FWS and the NMFS if a protected species could be harmed.

District Court Decision

Construction of the Keystone Pipeline began when NWP 12 was reauthorized in 2017. Several environmental advocacy groups, including the Northern Plains Resource Council (plaintiffs), filed a complaint in the District Court for the District of Montana. The plaintiffs’ complaint alleged, among other claims, that the Army Corps violated the CWA and the ESA because NWP 12 was reissued in 2017 without following Condition 18’s programmatic consultation requirement. Accordingly, plaintiffs sought injunctive relief enjoining construction of the Keystone Pipeline and declaratory relief rendering NWP 12 unlawful.

The district court granted summary judgment for the Plaintiffs, vacating NWP 12 and enjoining the Army Corps from allowing dredging or filling under NWP 12. As a result, the Army Corps sought an administrative stay, which was denied. An amended order, however, was issued to clarify the scope of the district court’s first order—NWP 12, as it relates to the construction of new oil gas lines, was vacated, and the Army Corps was enjoined from using NWP 12 to authorize dredge and fill dumping, until the Army Corps complies with the consultation process outlined in the ESA.

Appeal and Ninth Circuit Order

The Army Corps and intervening defendant TC Energy Corporation, the Keystone Pipeline’s project proponent, subsequently appealed the district court’s denial of an immediate administrative stay. Both defendants argued that, they would be subject to irreparable harm unless construction could proceed. Plaintiffs, on the other hand, argued that, even assuming the defendants would suffer some irreparable harm as a result of the district court’s decision, any continued construction would impose even greater harm on protected species because there was no programmatic consultation as required by the ESA.

Ninth Circuit Judges Silverman and Nguyen agreed with plaintiffs and rejected defendants’ appeal for an immediate administrative stay, without issuing an opinion.  A briefing schedule was set for further consideration of whether a stay is appropriate. Until a motion for a stay can be considered, therefore, new oil and gas line construction may not proceed under NWP 12, and the Army Corps remains enjoined from authorizing dredge and fill dumping in jurisdictional waters of the United States.

* Mr. Downs is a law clerk in the Construction practice group of Pepper Hamilton. He is not admitted to practice law.