Category Archives: Court cases

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.

Oral Arguments in Tolling Case

On Monday April 27, 2020, the D.C. Circuit Court of Appeals will hold the oral argument in the case challenging FERC’s approval of the Atlantic Sunrise Project (Allegheny Defense Project v. FERC). The case considers the pervasiveness of FERC’s unjust tolling practice and how it has real effects on individuals and groups who are kept out of court while construction is allowed to proceed. The full D.C. Circuit will take up the issue of whether to put an end to this practice.

Monday’s argument will begin at 9:30 am, and each side will have 30 minutes. The argument will be held by phone, and the public can listen to the live-stream through the D.C. Circuit’s website by clicking on the arrow under Daily Calendar with Live Audio (on the left sidebar).

Click here for a brief review of the case in a National Law Review article on January 17, 2020.

Court Ruling on Army Corps Permit for Keystone XL Will Impact ACP


According to an AP story on April 15, 2020, “A U.S. judge canceled a key permit Wednesday for the Keystone XL oil pipeline that’s expected to stretch from Canada to Nebraska, another setback for the disputed project that got underway less than two weeks ago following years of delays.”  The article notes that, “The cancellation could have broader implications because it appears to invalidate dredging work for any project authorized under the 2017 permit, said attorney Jared Margolis with the Center for Biological Diversity, another plaintiff in the case. It’s unclear what projects would be included.”

The press release from the Center for Biological Diversity is here.

Bloomberg’s article, Keystone XL Ruling Has ‘Sweeping’ Impacts for Other Projects, says “ClearView Energy Partners analyst Christine Tezak said the ruling could delay the Atlantic Coast and Mountain Valley natural gas pipelines on the East Coast because developers planned to rely on the NWP 12 program, though they don’t have any authorizations in place.”

From Allegheny-Blue Ridge Alliance ABRA Update #272, April 16, 2020:  A federal district judge in Montana on April 15 ruled that the U.S. Army Corps of Engineers violated the law when it approved National Permit 12 (NWP12) to permit the Keystone XL Pipeline to cross streams and rivers under the Corps’ jurisdiction. The ruling invalidates Nationwide Permit 12, prohibiting the Corps from using this fast-tracked approval process for any pipelines nationwide.

The Corps begin issuing NWP12 in 1977 for categories of activities that it deems to be similar in nature and “will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effect on the environment.” The Atlantic Coast Pipeline (ACP) is currently without an authorized NWP12. Until the district court decision is reversed on appeal, a new NWP12 for any pipeline project, including the ACP, cannot be issued.

The case had been brought by the Northern Plains Resource Council in 2019. The judge ruled that the “Corps failed to consider relevant expert analysis and failed to articulate a rational connection between the facts it found and the choice it made” regarding endangered species that were in the path of the project. Click here for a copy of the plaintiff’s statement commenting upon the decision (which also includes a link to the court decision).

A Message from SELC


These are unprecedented times and Southern Environmental Law Center is working their way through them. They pulled together a short message from staff across their offices that we hope you’ll enjoy.  We thank SELC for all their hard work to protect our environment from damaging and unnecessary pipelines.