Federal Court in Montana Vacates Nationwide Permit

A federal judge on The U.S. District Court for the District of Montana vacated the Army Corps of Engineers’ Nationwide Permit 12 on April 15. This program is used to permit linear infrastructure projects that cross rivers, streams, wetlands and other water bodies throughout the country. In the specific case being considered, environmental NGOs had challenged a permit issued to TC Energy for its Keystone XL project on the grounds that the Army Corps failed to conduct a multiagency consultation required under the Endangered Species Act to assess the risks of the Nationwide Permit 12 program ahead of its five-year renewal in 2017. The Army Corps said the permit program has been used 37,000 times since its renewal. The ruling has caused the agency to suspend the permit program, forcing project developers to pursue federal permits and environmental reviews for water crossings. The number of resulting permit reviews threatens to overwhelm the Army Corps. The agency has asked the district court to stay the vacatur while it prepares to appeal the ruling to the 9th U.S. Circuit Court of Appeals.