Category Archives: Court cases

Court Denies Request to Reinstate NWP 12

On May 28, 2020, the Ninth Circuit Court of Appeals denied the request by the Army Corps of Engineers, Transcanada Keystone Pipeline, and other pipeline companies to reinstate Nationwide Permit 12 (NWP12). This means NWP 12 will remain invalid while the Ninth Circuit considers whether the Montana district court correctly ruled that the Corps violated the Endangered Species Act.

The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits. At this point, the Corps cannot authorize either the MVP or the ACP to use NWP12 unless and until the Ninth Circuit reverses the Montana district court’s determination that the Corps violated the Endangered Species Act.

Appeals Court Urged to Keep Freeze on Army Corps’ NWP 12 for Pipelines

From Allegheny-Blue Ridge Alliance’s ABRA Update #277, May 22, 2020:

The Ninth Circuit Court of Appeals has been urged to uphold a Federal District Court in Montana’s ruling prohibiting the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP12) program from issuing new permits for oil and natural gas pipelines. The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits.

In a May 20, 2020 brief filed with the Court, the Northern Plains Resource Council, a Montana-based conservation group, argued that Army Corps had failed to evaluate the cumulative impact on endangered species of all projects under the NWP12 and that the agency should have completed a programmatic review under the Endangered Species Act before reauthorizing the program for a five-year term beginning in 2017. The case is before the Ninth Circuit on appeal by the Army Corps and industry groups that are asking the Appeals Court to overturn the District Court’s freeze of the NWP12 program until the case is decided the issues. For a copy of the brief, click here.

ACP Responds to Buckingham Compressor Station Court Decision

From Allegheny-Blue Ridge Alliance’s ABRA Update #276, May 14, 2020

Atlantic Coast Pipeline, LLC (ACP, LLC) has finally submitted a response to the January 7 decision by the Fourth Circuit Court of Appeals to vacate the Buckingham compressor station. ACP, LLC made recently two supplemental information submissions to the Virginia Department of Environmental Quality (DEQ), each responding to different issues raised by the Fourth Circuit.

An April 24 submission to DEQ responded to the issue of “why electric turbines are not required to be considered in Virginia’s BACT [Best Available Control Technology] analysis of the Compressor Station.” The company’s April 30 submission addressed the Court’s concern about “conflicting evidence in the record, the particular studies it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the Compressor Station.” It is uncertain when the matter will be taken by the Virginia Air Pollution Control Board, as that body has not yet scheduled a meeting to reconsider the project’s air permit.

Yet Another Blow to ACP and MVP

Writing in Blue Virginia on May 12, 2020, Jonathan Sokolow describes how the nationwide injunction by a judge in Montana brings construction on the Atlantic Coast and Mountain Valley Pipelines to a halt, since they no longer have a valid permit to cross the thousands of waterways along their routes.

“On April 15, the judge in Northern Plains Resource Council v. U.S. Army Corps of Engineers, issued a nationwide order vacating a key federal permit, known as Nationwide Permit 12 (NWP 12 for short). Chief District Court Judge Brian Morris ruled that the Corps failed to comply with key provisions of the Endangered Species Act when it issued NWP 12 in 2017.”

Although the case was about the Keystone XL pipeline, the vacated permit affects all pipeline construction. Both the MVP and the ACP decided to avoid applying for individual water crossing permits by asking for and receiving permission to use the now vacated blanket NWP 12.

Keystone XL and other and other industry powerhouses (including Dominion) asked Judge Morris “to reverse himself, or at least modify his April ruling to apply only to the Keystone XL pipeline. They also asked the judge to stay his own order pending appeal.” On May 11, Judge Morris said no to both requests.

When companies complained that the ruling left them unable to cross water bodies, the judge pointed out that they could still pursue individual permits: “Developers remain able to pursue individual permits for their new oil and gas pipeline construction….Intervenors possess no inherent right to maximize revenues by using a cheaper, quicker permitting process, particularly when their preferred process does not comply with the [Endangered Species Act].”

Sokolow says, “Keystone XL will no doubt appeal this ruling. And ACP and MVP will continue to spin repeated court losses as ‘temporary’ setbacks. But for now, the nationwide injunction represents another huge impediment to construction of two massive pipelines that together, would more than double Virginia’s production of green house gases from stationary sources.”

And Sokolow concludes with a statement we all heartily endorse: “It is long past time for the companies behind these projects to fold their tents and go home.”

Audio for April 27 Court Hearing


If you were not able to listen to the oral arguments before the D.C. Circuit Court of Appeals on Monday, April 27, 2020, on “tolling orders,” the long-standing practice of the Federal Energy Regulatory Commission (FERC) to delay making decisions on appeals of its rulings, the audio is available here [all 3.5 hours of it!]. In a first for the court, the arguments were presented via telephone before all of the 11 active judges on the D.C. Circuit. The case, Allegheny Defense project v. FERC, had initially been decided 2-1 last August in FERC’s favor by a three-judge panel of the court, but a stinging dissent by Judge Patricia Millet led to the full court to hear the case.

According to Allegheny-Blue Ridge Alliance’s ABRA Update 274, “During the course of Monday’s session, several judges expressed skepticism about FERC’s tolling order policy, which effectively permits a project to proceed in taking property through eminent domain and completing a pipeline before affected parties, including landowners, receive a decision on their appeal of the project’s certificate and, if denied, proceed to appeal it in court. It was not clear, though, what decision the DC Circuit might make in the case. In an amicus brief filed by the Southern Environmental Law Center, Earthjustice, Natural Resources Defense Council and the Chesapeake Bay Foundation on behalf of several ABRA members and numerous affected landowners argued that FERC habitually tolls requests for rehearing in such a way that a timely judicial review is precluded. The brief goes on to note that the practice is inconsistent with the Supreme Court’s evaluation of Access-to-Justice Principles.”

See related story below, FERC Process Skewed Against Landowners.

Court Denies Request for A Stay of Keystone XL Decision Affecting NWP 12

From Allegheny-Blue Ridge Alliance’s ABRA Update 274, April 30, 2020:

Chief Judge Brian Morris for the U.S. District Court for the District of Montana said on April 28 that he would not issue an administrative stay to his April 15 order blocking the Army Corps’ Nationwide Permit 12 (NWP12) program, pending consultation with other federal agencies under the Endangered Species Act. The judge’s earlier decision effectively halted the authority of the U.S. Corps of Engineers from issuing any permits for any project subject to NWP12. This includes the Atlantic Coast Pipeline, which at this date does not have a valid NWP12 permit in any of the four Corps districts in which the project’s route runs. Last week, the Corps suspended issuing any NWP12 permits. Judge Morris in his April 28 ruling establish a briefing schedule for the April 15 decision to be appealed.

See Court Ruling on Army Corps Permit for Keystone XL Will Impact ACP for the story on the April 15 order.