What Utilities Should Do, Now That Wetland Permit NWP12 Has Been Vacated
Among utility companies nationwide, there is justifiable alarm over the Montana United States District Court’s April 15, 2020, ruling vacating Nationwide Permit 12 (NWP12). NWP12 provides an expedited process for obtaining federal approval to conduct certain linear utility projects that impact wetlands. These projects include oil and gas pipelines, electrical lines, and phone, internet, and TV cable lines.
For those unfamiliar with the recent decision, in a challenge to the NWP12 obtained for part of the Keystone XL Pipeline, the Court concluded that the Army Corps of Engineers (Corps) was arbitrary and capricious when it renewed the entire NWP12 program in 2017. At that time, the Corps had evidence that the NWP12 program as a whole “may affect” endangered species and critical habitat but failed to consult with the U.S. Fish & Wildlife Service (USFWS) as required under the Federal Endangered Species Act. For this reason, the Court enjoined the Corps from authorizing any other projects under NWP12 anywhere in the country and remanded NWP12 to the Corps for consultation with the USFWS. The case is Northern Plains Resource Council v. U.S. Army Corps of Engineers, 2020 U.S. Dist. LEXIS 66745 (D.Mont. April 15, 2020).
What should utilities do now? In the aftermath of the Court’s decision, utilities are obviously hoping for a more favorable outcome on reconsideration or appeal. But they are also (or should be) enlisting legal counsel to guide them on affected projects.
Options include waiting for a revision to NWP12 (which would not happen until at least 2021), obtaining alternative NWPs that may apply to existing projects (there is some overlap in the applicability of various NWPs), modifying projects to qualify for a different NWP, or applying for an individual permit. Any one of these options still requires utilities to properly address the contractual, financial, rate-setting, and other fallout from their current (or anticipated) NWP12 having been vacated. The ripple effects of the Court’s decision are far-reaching and the options available can take significant time to implement. Additionally, mistakes can subject utilities to penalties, and both government and private enforcement actions. Accordingly, utilities with affected projects are encouraged to obtain qualified counsel as soon as possible.
If you have questions about the Montana United States District Court’s decision and its impact, please reach out to any member of Post & Schell’s Environmental and/or Energy & Utilities Practice Groups.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.