September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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New Montana District Court Ruling Could Impact Energy Development throughout the U.S.

The Federal District Court for Montana, in a ruling that could impact energy and development projects across the United States, ruled in favor of the pipeline opponents in a case concerning challenges to the Keystone XL Pipeline. While the case mostly focused on the permitting for this particular pipeline, the court’s ruling resulted in the court vacating NWP 12 and the remanding of the permit back to the United States Army Corps of Engineers (Corps). The court’s order requires the Corps to complete a programmatic consultation under Endangered Species Act (ESA) section 7 with the United States Fish and Wildlife Service (FWS). As a result, parties wishing to utilize NWP 12 for stream crossings for pipelines will need to potentially obtain an individual permit, thus likely extending permitting time frames for these types of projects.

The court found that the Corps’ renewal of NWP 12 in 2017 failed to account for potential impacts to endangered species and critical habitat. In 2017, during the Corps’ consideration for re-issuance of NWP 12, the Corps issued a finding of no significant impact (FONSI) related to potential impacts to endangered species and critical habitat pursuant to the ESA resulting from usage of NWP 12. The Corps’ reasoning found that General Condition 18 of NWP 12 which states that the permit cannot be used in instances where an activity will directly or indirectly impact an endangered species or its critical habitat and further requires the filing of a Pre-Construction Notice (PCN) and a formal consult process under Section 7 of the ESA where a project “may” impact a species or its critical habitat and would be sufficient to address its duties under the Act. The court found the actions by the Corps were not sufficient and did not address concerns under the ESA on a programmatic level based upon the national scale of the NWP 12 program based upon the record presented to the court and past practice by the Corps in 2007 and 2012 when it requested a programmatic consult with the FWS and a Biological Opinion was issued prior to renewal of NWP 12.

The court remanded NWP 12 to the Corps for compliance with the ESA, vacated NWP 12 pending compliance with the court’s order, and enjoined the Corps from authorizing dredge or fill activities under NWP12 pending compliance with the court’s order. Vacation of the NWP 12 may have national implications beyond the jurisdiction of the federal district court. Nationwide injunctions have been criticized by Attorney General Barr as violative of the separation of powers. A spokesperson for the DOJ commented that it is reviewing the opinion, but an appeal is likely.

A copy of the opinion can be accessed using this link.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume X, Number 108


About this Author

Armando Benincasa, Attorney, Energy, Environmental, Steptoe & Johnson Law Firm

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.  He has extensive experience in governmental matters, as well as in representing energy companies before state agencies and the West...

Kurt Kreiger, Energy Attorney, Steptoe Johnson Law Firm

Kurt Krieger focuses his practice in the areas of utility regulation and energy law. He has experience representing interstate natural gas pipeline companies, midstream companies, and gas and electric utilities before the Federal Energy Regulatory Commission (FERC), and state and commonwealth public service (or utility) commissions.  His experience includes counseling gas and electric companies on economic, safety and facility siting regulation, and counseling and drafting commercial agreements pertaining to energy-related transactions.

Mr. Krieger has experience with all types of state and federal rate-related, rate-making, tariff, facility expansion, certificate, complaint, and rule-making matters, and federal enforcement proceedings before the FERC.  He developed, implemented, and managed a FERC compliance program for interstate natural gas pipeline companies and gas and electric utilities, counseled extensively on rate, tariff, and certificate matters, standards of conduct and code of conduct issues; and developed training on numerous energy-related and regulated utility topics. He previously counseled clients on coal mine health and safety matters, and on federal tax and general business aspects of corporate acquisitions, mergers, reorganizations, and executive compensation.

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