Energy and Environment Monitor

Montana Judge Maintains Injunction on NWP 12 for New Oil & Gas Pipelines

May 19, 2020

On April 15, 2020, a federal district court in the District of Montana vacated the U.S. Army Corps of Engineers’ Nationwide Permit 12 (“NWP 12”), which was issued in 2017 pursuant to Section 404 of the Clean Water Act and authorizes discharges of dredged or fill material associated with utility line activities. The Court also issued an injunction preventing the Corps from authorizing further use of the permit nationwide. We previously wrote about that decision, here.

The case involved a facial challenge to NWP 12 in a lawsuit against the Corps that also challenged the Corps’ decision to authorize the use of NWP 12 for the Keystone XL oil pipeline. The Court ruled that the Corps was obligated to conduct programmatic consultation with the U.S. Fish & Wildlife Service (“USFWS”) before issuing the nationwide permit and that a condition requiring project-specific consultation when there may be effects on threatened or endangered species was inadequate to assess the potential cumulative impacts of the activities authorized by NWP 12. In the wake of that decision, the Court was asked to stay or restrict the scope of its injunction, which applied to other projects, not just the Keystone XL pipeline.

In its May 11, 2020 order, the Court declined to stay its ruling, but did narrow the scope of the injunction to allow for the continued use of NWP 12 for utility line activities that are not oil or gas-related (such as water and sewer lines and electric transmissions lines). The Court, however, left in place a nationwide injunction against the continued use of NWP 12 for “the construction of new oil and gas pipelines” until the Corps conducts programmatic consultation with the USFWS. The order also allows the continued use of NWP 12 for “routine maintenance, inspection and repair activities on existing NWP 12 projects.”