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Judge Retains Freeze on Streamlined Pipeline Permitting (1)

May 12, 2020, 12:31 AMUpdated: May 12, 2020, 2:30 PM

A federal judge is standing by his order barring a streamlined permitting process for oil and gas pipelines.

Chief Judge Brian Morris of the U.S. District Court for the District of Montana on Monday rejected pleas from government and industry lawyers who sought to revive a general permit that applies to pipelines that cross major wetlands and waterways.

The decision could delay multiple pipeline projects.

Morris struck down the program last month in a case involving the Keystone XL oil pipeline—concluding the Army Corps of Engineers didn’t comply with the Endangered Species Act when it crafted the streamlined process for pipelines, transmission lines, and cables.

In Monday’s order, he agreed to narrow his April ruling to allow the Army Corps to use the fast-track permitting process for nonpipeline construction work and routine activities on existing projects.

But Morris declined to scale back his order to focus only on Keystone XL, and he refused to freeze his decision while the Trump administration and pipeline backer TC Energy pursue an appeal.

“The need to protect endangered species and critical habitat from harm until the Corps completes programmatic consultation outweighs any disruption or permitting delays that would result from this partial vacatur,” he wrote.

Appeal Expected

The Army Corps referred questions about Monday’s order to the Justice Department, which declined to comment.

TC Energy and its allies promised to take their fight to the U.S. Court of Appeals for the Ninth Circuit.

“We look forward to a resolution that allows us to advance our construction in 2020 without any further delay,” TC Energy spokesman Terry Cunha said in an email.

The Interstate Natural Gas Association of America said it’s “troubled by the court’s decision to single out and target new projects that transport only certain types of energy.” American Petroleum Institute chief legal officer Paul Afonso said his group is “weighing all options moving forward.”

Environmental groups, meanwhile, praised the court’s decision.

“Today’s ruling makes clear that climate-busting pipelines like Keystone XL cannot be built until the federal government does its job and properly analyzes these projects’ devastating effects on their surrounding communities and wildlife,” Natural Resources Defense Council attorney Cecilia Segal said in a statement.

Nationwide Permitting

Known as Nationwide Permit 12, or NWP 12, the streamlined approach bypasses a more cumbersome individual permitting process under the Clean Water Act. It allows developers to move ahead with construction after the Army Corps ensures they meet pre-set criteria.

The federal government uses numerous similar nationwide permits for other industries and activities.

The Montana court’s April decision invalidated NWP 12 pending completion of an Endangered Species Act consultation process and barred the Army Corps from using it in the meantime.

That means developers will have to wait until NWP 12 is revived, or go through a more time-consuming individual permitting process for water crossings typically covered by the permit.

The Sierra Club is also involved in the Keystone XL case. The group has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is N. Plains Res. Council v. Army Corps of Engineers, D. Mont., No. 4:19-cv-00044, 5/11/20.

(Updates story originally published May 11 with comments from agencies, industry in paragraphs 8-11.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com

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