The Coming Wave of NWP-12 Litigation

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The Sierra Club filed suit on May 1, 2020, in federal district court in Texas arguing that Kinder Morgan’s Permian Highway pipeline should not go forward because the foundational permit is now void. The $2.2 billion Permian Highway natural gas pipeline is also facing a suit from the City of Austin, which amended its own complaint to add arguments similar to those raised by the Sierra Club. The Texas suits, likely to become a small part of the multitude of similar claims in the coming weeks and months, relied on the recent decision of a Montana federal judge which vacated the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP-12) because the permit was not properly evaluated under the Endangered Species Act.

The Montana decision arose from a challenge to the Keystone XL Pipeline. U.S. District Judge Brian Morris determined on April 15, 2020, that the Corps failed to engage in programmatic consultation in issuing NWP-12, which provides expedited permitting for certain infrastructure projects, including pipelines. In remanding the permit to the Corps for ESA compliance, Judge Morris effectively issued a nationwide injunction against the use of NWP-12 to permit new projects and threw potentially thousands of ongoing infrastructure projects into uncertainty. While the NWP-12 is not used to permit every linear infrastructure project, its use is widespread. According to filings by the Corps of Engineers, there are approximately 5,500 pre-construction notices pending before the Corps’ district offices for NWP-12 authorization

The Corps has asked Judge Morris to stay the effect of his order or limit it to the Keystone Pipeline pending appeal. The decision remains in place while the court considers the motion. An expedited briefing schedule for the Corps’ motion has final briefs due May 8th. Currently, the Corps is directing regional offices not to process requests for NWP 12 on any new projects. For those projects that previously received an NWP 12, the prospects moving forward are uncertain at best, and likely to be substantially delayed by legal challenges and potentially new and more arduous individual permitting requirements. What is certain is that more litigation will be forthcoming, and NWP-12 projects with any degree of opposition should follow developments closely.

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