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Army Corps appeals to Supreme Court over blocked Nationwide Permit 12 program

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Army Corps appeals to Supreme Court over blocked Nationwide Permit 12 program

The U.S. Army Corps of Engineers asked the U.S. Supreme Court to stay a lower court's decision that stopped the agency from using a water crossing permit program for oil and natural gas pipeline projects.

On the afternoon of June 15, the Army Corps, through the U.S. Department of Justice, filed a petition with the Supreme Court. The agency asked for a stay of the U.S. District Court for the District of Montana's April 15 decision that vacated the Nationwide Permit 12 program, saying the lower court's order will lead to "extraordinary project delays." The program provides a streamlined permitting process for projects that the agency deems will not result in significant impacts to the environment.

"In 2018, the average time to receive a standard individual permit from the Corps was 264 days, while the average time to receive an NWP verification was only 45 days," according to the petition. "The Corps estimates that, at current workforce levels, it would take approximately 11 months to process all of the new applications it anticipates receiving — if the personnel familiar with NWP 12 focused solely on new oil and gas pipeline permit applications and nothing else." (U.S. Army Corps of Engineers, et al. v. Northern Plains Resource Council, et al.)

The Army Corps asked for the stay pending the U.S. Court of Appeals for the 9th Circuit's consideration of a related appeal of the district court order. On May 28, the 9th Circuit rejected for the second time the Army Corps and TC Energy Corp.'s emergency motions for a partial stay of the lower court's decision. The district court issued the decision against the Army Corps program in a case that stemmed from a lawsuit that challenged permits for TC Energy's Keystone XL oil pipeline project.

In a June 15 research note, Clearview Energy Partners maintained that Supreme Court action could be the fastest way to relief for both the Army Corps and the pipeline developers waiting for its Nationwide Permit 12 authorizations. The research firm said a stay of the Montana district court's order could enable the Army Corps to issue the authorizations to both Atlantic Coast Pipeline LLC and Mountain Valley Pipeline LLC projects on the East Coast. The firm said the Supreme Court might be willing to take the Army Corps' case to resolve the question of whether a district court can block a nationwide federal permit program, and it might grant the stay because of the "'conservative' majority and its earlier ruling in a similar situation in January."

The Dominion Energy Inc.-led, 600-mile, 1.5-Bcf/d Atlantic Coast natural gas pipeline project booked a win in the Supreme Court on June 15. The court reversed and remanded a ruling by the U.S. Appeals Court for the 4th Circuit, which had canceled a U.S. Forest Service-issued permit that allowed the pipeline to cross the Appalachian Trail and sections of national forest.