April 17, 2020: Sierra Club and allies secured a major court victory this week in the years-long fight against the Keystone XL pipeline and, more broadly, Nationwide Permit 12, the streamlined Clean Water Act 404 approval process for oil and gas pipelines.
A federal district court judge in Montana held that the U.S. Army Corps of Engineers violated the Endangered Species Act by failing to engage in programmatic section 7 consultation before issuing NWP 12. Programmatic consultation is necessary to evaluate the cumulative impacts on listed species of the NWP 12 program as a whole, which is used to approve thousands of water crossings for controversial pipelines every year including the Dakota Access Pipeline, the Mountain Valley Pipeline, and the Atlantic Coast Pipeline. The court vacated NWP 12 and remanded to the Army Corps for ESA consultation, and enjoined the Corps from authorizing any further projects under NWP 12.
Last week, TC Energy broke ground on construction of the 1.2 mile section of Keystone XL pipeline that crosses the U.S.-Canada border in Montana. However, this ruling effectively blocks the construction of any significant stretches of Keystone XL, which would cross almost 700 rivers, streams, and wetlands along the projects’ length. Construction through these waterways was slated to begin in June.
The decision could also delay dozens of other oil and gas pipelines nationwide that have been proceeding under NWP 12 until the Corps completes its ESA consultation; and/or require those projects to seek an individual permit through the more transparent and robust public review process ordinarily required for major projects under Section 404 of the Clean Water Act.