Groups Claim Permit Illegally Allows Army Corps of Engineers to Skirt Review Requirements

Environmental groups filed a complaint in the Montana District Court on Monday against Lieutenant General Scott A. Spellman of the U.S. Army Corps of Engineers, asking for declaratory and injunctive relief from the court and to vacate the 2021 Nationwide Permit 12 (NWP 12) allowing oil and gas pipeline permits over water. 

The filing alleged that the Corps violated the Clean Water Act (CWA), the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedure Act by issuing the NWP 12, which is reportedly a general permit for oil and gas pipeline projects. 

According to the plaintiffs, Center for Biological Diversity, Sierra Club, Montana Environmental Information Center, Friends of the Earth, and Waterkeeper Alliance Inc., in issuing NWP 12, the Corps did not adequately address environmental effects from the pipelines. Projects under NWP 12 are in a streamlined process where pipelines are allowed to cross bodies of water without the reviews required under the CWA. 

The environmental groups reported that projects approved through NWP 12, which is estimated to be used over 9,500 times each year over five years, are not given the same opportunities for public involvement before being allowed to proceed. 

The recently approved NWP 12 replaced the 2017 version of the same permit, which, the plaintiffs reported, violated the ESA. The complaint alleged that the Corps and the Trump administration did not initiate ESA consultation as requested by the courts, but continued to reauthorize permits under the 2017 NWP 12. The plaintiffs reported that the recent NWP 12 has the same flaw as it lists that it will have no effect on endangered species. 

“Aside from causing direct, indirect, and cumulative impacts to U.S. waters,” the plaintiffs claimed, “NWP 12 activities also cause environmental harm from oil and gas spills and global climate change.” 

Reportedly, under the CWA, the Corps is only allowed to permit activities with minimal environmental effects, but NWP 12 allows it to approve permits for activities that do not meet this standard. The plaintiffs purported that the lack of environmental analysis required for approving projects under this permit breaches several laws. 

“The Corps allows oil and gas pipelines to use NWP 12 repeatedly for each water crossing along a project’s length, with no limit to the number of times a pipeline can use NWP 12 or the total number of acres of wetlands that a project can impact. NWP thereby allows the Corps to artificially treat large interstate pipeline projects as hundreds or even thousands of separate ‘single and complete projects’ to avoid the more transparent and individual permit process required.” 

The plaintiffs, represented by Bechtold Law Firm PLLC, asked the court to vacate NWP12 and remand it to the Corps, ruling that it violated the laws cited in the complaint.