Judge Narrows Scope of NWP-12 Vacatur

Judge Narrows Scope of NWP-12 Ruling

On May 11, 2020, U.S. District Judge Brian Morris revised a recent court ruling that entirely invalidated the U.S. Army Corps of Engineers’ (USACE) Nationwide Permit 12 (NWP-12) impacting not only new pipeline and electric transmission line construction, but also maintenance activities on already-existing pipelines and transmission lines. Judge Morris’s original order, dated April 15, 2020, halted use of NWP-12 nationally, based on a finding that USACE had violated the Endangered Species Act by failing to consult with the U.S. Fish and Wildlife Service in reauthorizing NWP-12 in July 2017. NWP-12 authorizes the disturbances of small areas of river and stream crossings if certain conditions are met, and is widely used in the construction of “linear facilities,” such as pipelines and electric transmission lines.

After motions by multiple parties seeking to narrow or throw out the motion, Judge Morris’s amended order narrowed the scope of the order, now halting the use of NWP-12 for new oil and gas pipelines, but allowing continued use of NWP-12 for non-pipeline construction activities and maintenance, inspection and repair of existing projects.

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