Svend Brandt-Erichsen, Brian Ferrasci-O’Malley and Brooke Wahlberg Featured For NWP 12 Commentary

07.06.2020
Washington Post

A Nossaman alert authored by Svend Brandt-Erichsen, Brian Ferrasci-O’Malley and Brooke Wahlberg on NWP 12 was featured in the Washington Post article, “Major Oil and Gas Pipeline Projects, Backed By Trump, Flounder As Opponents Prevail In Courts.”

The piece covered a ruling by a federal judge that declared the Dakota Access pipeline must be shut down by August 5th because federal officials failed to carry out a complete analysis of its environmental impact. The Post referred to the alert in the article, writing that “an April decision by a federal judge in Montana dealt a blow to the Keystone XL pipeline and raised questions about whether the U.S. Army Corps of Engineers will have to conduct more extensive environmental reviews for other projects.”

The Nossaman alert discussed the potential impact of the April ruling by the U.S. District Court for the District of Montana on energy and development projects across the nation. In the matter, the court granted partial summary judgment in favor of plaintiff the Northern Plains Resource Council (“NPRC”) in a case concerning challenges to the Keystone XL Pipeline.

While the case mostly focused on the permitting for this particular pipeline, the nature of the claims raised resulted in broader implications for nationwide permit (“NWP”) 12, an important nationwide permit issued by the U.S. Army Corps of Engineers. The court’s ruling vacated NWP 12 and remanded NWP 12 back to the Corps, instructing the Corps to complete a programmatic consultation under Endangered Species Act (“ESA”) section 7. The district court later narrowed that ruling, allowing NWP 12 to be used for projects other than pipelines while its ruling is under appeal. The U.S. Supreme Court recently ruled that, until all appeals are resolved, NWP 12 may be used on any projects other than the Keystone XL Pipeline.

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