A coalition of energy associations has asked an appeals court to issue an emergency stay of a district court’s decision that blocks any use of a streamlined permitting system for new oil and gas pipelines anywhere in the country.
And 18 states have jointly filed a friend-of-the-court brief supporting the request for a stay. Both filings, stemming from a fight over the proposed Keystone XL Pipeline, seek a stay pending an appeal.
The industry groups and states alike warned of immediate harm from unrecoverable costs and delays for pipeline projects from the district court’s order if it is not stayed. “Some projects likely will not survive these setbacks,” the states said.
The states and the associations filed their requests at the US Court of Appeals for the Ninth Circuit May 15, a day after two judges on the court rejected a similar request from the US Army Corps of Engineers.
The filings responded to a decision by Judge Brian Morris of the US District Court for the District of Montana that he would strike down Nationwide Permit 12 (NWP 12), a general permit frequently used for pipeline projects when the Corps of Engineers concludes a project will not have significant environmental impacts.
Morris vacated NWP 12 and enjoined the Corps from using it until after the Corps conducts a programmatic consultation with the US Fish and Wildlife Service on endangered species. That decision went beyond what the plaintiffs had requested—one of several bases for appeal.
Substance and procedure disputed
The decision—both on its substance and its procedures—will not survive appellate review, the associations said.
The associations said their industry members use NWP 12 thousands of times a year for new construction, maintenance and repair. Although procedures for the permit are streamlined, they are designed to trigger consultation over endangered species as needed, the groups said.
Plaintiffs did not seek vacatur of NWP 12. The fact that the judge chose to vacate the permit anyway was a procedural error, a failure to heed the US Supreme Court’s policy on limiting court orders to the relief sought by the parties except in extraordinary circumstances, the associations told the appellate court.
The five associations looking to the appellate court for relief include the American Gas Association, the American Petroleum Institute, the Association of Oil Pipe Lines, the Interstate Natural Gas Association of America, and the National Rural Electric Cooperative Association.
The brief by 18 states was led by the attorneys general of West Virginia and Texas.
The case is Northern Plains Resource Council v. US Army Corps of Engineers, a fight over the planned Keystone XL Pipeline, a TC Energy Corp. project to move crude oil south from Hardisty, Alberta, to Steele City, Neb., where it would connect with TC Energy lines reaching as far as the Gulf Coast.
Cost and delays cited
“The decision means projects indisputably meeting the well-understood and long-standing requirements of NWP 12 will be forced to undergo additional delays and costs,” the states said.
The associations said the district court judge was dismissive of the burdens his ruling would impose, as if it were inconsequential that pipeline developers would have to fall back on the slower and more expensive process of individual permitting under the Clean Water Act (CWA).
“If that were so, however, Congress would not have amended the CWA specifically to authorize general permits,” the associations said.
In effect, the judge unilaterally rewrote NWP 12 in his own terms, “without notice and public comment, and offering little guidance as to how to apply it,” the groups said. They called it “decision-by-judicial-ambush.”
Notice and a period of public comment normally are required of federal agencies when they revise regulations.