By John McFerrin

            A United States District Court Judge in Montana has ruled that Nationwide Permit 12 issued pursuant to the Clean Water Act is invalid because it was issued without following the Endangered Species Act.  Even though this happened in Montana, it could have dramatic implications for both the Atlantic Coast Pipeline and the Mountain Valley Pipeline.

Background (stop me it you’ve heard this; skip if you have heard it before)

Under the federal and state Clean Water Acts, anybody who wants to cross a stream or a wetland must have a permit.  It has a choice of either getting an individual permit for each crossing or proceed under what is called a General Permit, often referred to as a Nationwide Permit.

Nationwide Permits are issued for large classes of activities. The Corps issues nationwide permits for categories of activities that are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. It is a one size fits all approach for lots of nearly identical activities that have small impacts. Individual permits are site specific; developers would submit an individual plan for each crossing and regulators would look at each one individually. 

            There is (or at least there was; see below) a Nationwide Permit, known as NWP 12, that covers utilities.  Anywhere in the country that someone wants to do “[a]ctivities required for the construction, maintenance, repair, and removal of utility lines” can apply to do it under NWP 12.  “Utility lines” is defined in such a way that it includes natural gas pipelines.

            Both the Mountain Valley Pipeline and the Atlantic Coast Pipeline want to be able to cross streams and wetlands under the authority of NWP 12.  It is easier to get approval for the whole pipeline (or at least the part in West Virginia; parts in Virginia and North Carolina would have to be approved separately) all at once under the Nationwide Permit  than  to make plans for each crossing and get them approved individually.

            Many people and groups (including the West Virginia Highlands Conservancy) have long maintained that a Nationwide Permit in inappropriate for projects such as the Mountain Valley Pipeline or the Atlantic Coast Pipeline.  Nationwide Permits are designed to allow for crossings that have limited impact, are all the same, and where standard industry practices will be sufficient.  These pipelines, on the other hand, cross varied and difficult terrain, require something other than standard practice, and have an enormous cumulative impact.

            This is a big deal for both pipelines because of the number of crossings involved.  The Mountain Valley Pipeline has 591 stream or wetlands crossings in West Virginia.  The Atlantic Coast Pipeline has 739.

What happened

            Nationwide Permit 12 was first issued in 1977 and was last reissued in 2017.  In the case Northern Plains Resource Council, et al. v. U.S. Army Corps of Engineers, et al, the Northern Plains Resource Council challenged crossings of the Yellowstone River and the Cheyenne River in Montana by the Keystone XL Pipeline.

            The Court held that the Corps of Engineers had improperly issued Nationwide Permit 12.  

            Before it takes any substantial action, the Endangered Species Act requires that the Corps of Engineers ensure that its actions are not likely to jeopardize the continued existence of any listed species or destroy or adversely modify designated critical habitat. The Corps must review its actions “at the earliest possible time” to determine whether an action “may affect” listed species or critical habitat. 

            The law assumes that the Corps doesn’t know much about endangered species, or at least not enough to make a judgment of the effects of its actions upon endangered species.  If it determines that the action “may affect” a listed species or critical habitat it has to ask for help (the jargon is “initiate formal consultation”) from the United States Fish and Wildlife Service.

            In the case of its decision to reissue Nationwide Permit 12, the Corps decided that it didn’t need to consult with the Fish and Wildlife Service.  Even while it acknowledged that issuing Nationwide Permit 12 would have widespread effects on waterways, it went ahead and reissued Nationwide Permit 12 without consultation on endangered species.

            The Court disapproved of this approach. It said that the Corps of Engineers was mistaken to reissue Nationwide Permit 12 without consultation.  It vacated NWP 12 pending completion of the consultation process and enjoined the Corps from authorizing any dredge or fill activities under NWP 12.

            The Corps of Engineers should have known better.  When it reissued NWP 12 in 2002 without consulting the Fish and Wildlife Service about the impact on endangered species it was successfully sued.  In did do consultation when it reissued NWP 12 in 2007 and again in 2012.  Maybe now that it knows better it can do better.

Why does this matter in West Virginia?

            Montana is way over a thousand miles and two time zones from West Virginia (It is 1439 miles from the Chester, northernmost city in West Virginia, to Alzada, Montana, the first town one comes to. This is by the hard road.  It is shorter as the Blackpoll Warbler flies).  Why does it matter in West Virginia what a judge in Montana decides about stream crossings in Montana?

            It matters in West Virginia because the judge did not just prohibit the stream crossings.  He vacated Nationwide Permit 12.  Both the Atlantic Coast Pipeline and the Mountain Valley Pipeline rely upon Nationwide Permit 12 as their authorizations to cross streams and wetlands.  Without NWP 12, it has no authority to cross streams and wetlands.

Does this apply to the whole country?

            So far, at least, it appears that this ruling applies to the whole country.  United States District Courts occupy the lowest perch in the federal court pecking order.  In recent years, in other contexts, District Courts have been criticized for issuing injunctions that order the whole country, and not just where they sit, to do something.

            This is not, however, an injunction.  It is vacating a permit, a permit which applies to the whole country.  Courts who are higher in the pecking order have objected to lower courts issuing injunctions that are binding on the whole country.  It is unclear whether the same reasoning applies when the lower court is vacating a permit.

            People are certainly acting as if this decision applies to the whole country.  On its website the plaintiffs, the Northern Plains Resource Council, interprets without equivocation the ruling as prohibiting the use of NWP 12 anywhere.  The Corps of Engineers has issued a directive which interprets the ruling as applying to projects across the country which had been relying upon NWP 12.

What next?

            The Court left open the option that the Corps of Engineers could go back and correct its mistake.  The Corps could do the consultation with the Fish and Wildlife Service as the Endangered Species Act requires.  This would take time and would probably result in some conditions that the Fish and Wildlife Service would suggest adding to any future Nationwide Permit.

            The other possibility is that the Corps could appeal to a higher court, the United States Court of Appeals.  This is not the type of decision that the Corps takes lying down. The Corps has asked the District Court to stay the effectiveness of its Order while the Corps appeals to the United States Court of Appeals.  At press time there was no decision on whether the stay would be granted.