By Ellen M. Gilmer
A federal court’s decision striking down a critical Keystone XL permit has broad implications beyond the embattled oil pipeline.
The Wednesday ruling from the U.S. District Court for the District of Montana tossed a nationwide permit the Army Corps of Engineers uses to approve water crossings for projects all over the country, concluding the agency hadn’t properly considered impacts on endangered species.
“This is a sweeping ruling,” said Larry Liebesman, a former Justice Department environmental lawyer now at the water resources consulting firm Dawson & Associates. “This judge used his authority to enjoin it nationwide.”
That means the Army Corps, for now, won’t be able to greenlight other projects under the streamlined permitting process it typically uses for pipelines, Liebesman said.
A spokesman said the agency is still reviewing the on-the-ground impacts of the ruling. Pipeline developers say they’re watching the case closely to assess impacts on their own projects.
General Permit
At issue in the Keystone XL case is Nationwide Permit 12, or NWP 12, which applies to pipelines, transmission lines, and cables that cross or discharge fill material into federally regulated waterways.
The Army Corps uses nationwide permits, updated every five years, to authorize broad categories of development. Instead of conducting an individual permitting process for a proposal, the agency simply ensures the plan meets pre-set criteria and adds site-specific conditions as needed.
Chief Judge Brian Morris invalidated NWP 12 pending completion of an Endangered Species Act consultation process, and barred the Army Corps from using the nationwide permit to approve any wetlands dredging and filling in the meantime.
The Trump administration could ask the U.S. Court of Appeals for the Ninth Circuit to block the decision. If that’s unsuccessful, the Army Corps will have to do more time-consuming individual permits for pipelines’ water crossings until it completes the consultation process and could face numerous challenges to other approvals, Liebesman said.
Completing a broad consultation with federal wildlife agencies could take longer than a year, Bloomberg Intelligence analyst Brandon Barnes said.
