American Oil and Gas Reporter - May 2020 - 30

Keystone XL Ruling Has Broad Sweep
What began as yet another lawsuit by
environmentalists against the Keystone XL
Pipeline could turn into a stumbling block
for almost any energy infrastructure project-if it is not stayed or overturned-according to various analyses of a mid-April
ruling by a federal judge in Montana.
The Associated Press reports Chief
Judge Brian Morris for the U.S. District
Court for the District of Montana, ruling
in Northern Plains Resource Council v.
Army Corps of Engineers, on April 15
invalidated Keystone XL's lower-48 states
water crossings permit over concerns the
Corps failed to adequately consider the
effects on endangered species such as
the pallid sturgeon.
The ruling came two weeks after TC
Energy announced on March 31 plans to
proceed with constructing the Keystone XL
after obtaining 20-year transportation service
agreements for 575,000 barrels a day as
well as a $1.1 billion equity investment in
the project by the government of Alberta.
An analysis of Morris' ruling published
by Bloomberg Law quotes former Justice
Department environmental lawyer Larry
Liebesman, now a senior adviser with water

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resources consulting firm Dawson & Associates in Washington, who calls it "a
sweeping ruling. (It) means the Army Corps,
for now, won't be able to greenlight other
projects under the streamlined permitting
process it typically uses for pipelines."
Indeed, the AP announced April 23,
"The Army Corps of Engineers has suspended a nationwide program used to
approve oil and gas pipelines, power lines
and other utility work."
The article cites an April 17 e-mail
AP obtained in which, it says, Army
Corps Regulatory Program Chief Jennifer
Moyer orders agency personnel across
the nation to stop verifying companies
as compliant with the blanket permit "out
of an abundance of caution."
AP adds that the Corps has put on
hold 360 pending notifications to entities
approving their use of the permit.
On April 28, Judge Morris denied the
Corps' motion for an administrative stay,
although he did grant the government's
request for an expedited briefing on a
motion for partial stay pending appeal.
A post on the National Law Review
website says the Corps is asking the court

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30 THE AMERICAN OIL & GAS REPORTER

to stay "those portions of (its order) that
vacate (Nationwide Permit 12) and broadly
enjoin the Corps from authorizing any
dredge or fill activities under the permit,"
or at "the very least, the court should
stay its vacatur and injunction as they
relate to anything other than the Keystone
XL Pipeline."
Nationwide Permit 12
At issue, Bloomberg Law explains, is
Nationwide Permit 12, which applies to
pipelines, transmission lines and cables
that cross or discharge fill material into
federally regulated waterways.
"The Army Corps uses nationwide
permits, updated every five years, to authorize broad categories of development,"
Bloomberg writes. "Instead of conducting
an individual permitting process for a
proposal, the agency simply ensures the
plan meets set criteria and adds sitespecific conditions as needed."
The AP mentions that NWP 12 was
last renewed in March 2017.
Christopher L. Bell, a shareholder in
international law firm GreenbergTraurig,
observes that Judge Morris enjoined the
Corps from using NWP 12 to authorize
any dredge and fill activities.
"Judge Morris concluded the Corps
violated the Endangered Species Act
when it re-issued NWP 12 and remanded
it to the Corps for an ESA consultation
with federal wildlife agencies.
"The opinion does not state that it is
limited to Montana," Bell continues. "This
decision may have an impact on the planning and timing of thousands of projects
across the nation, including pipelines,
transmission lines and any projects that
include utility lines (e.g., solar, wind, real
estate) that rely on the streamlined NWP
12 to avoid the lengthy process of obtaining
site-specific Clean Water Act 404 permits.
"Project-specific permitting not only
takes time, but also may trigger public
participation opportunities for project opponents," Bell judges.
Critical For Infrastructure
A joint statement from the American
Petroleum Institute, Interstate Natural
Gas Association of America and North
America's Building Trades Unions calls
NWP 12 "critical to the responsible and
efficient development and maintenance
of energy and other vital infrastructure
projects across America."
"(Judge Morris') decision creates tremendous uncertainty in an already uncertain
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American Oil and Gas Reporter - May 2020

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