Five environmental groups have filed a lawsuit in a Montana federal court alleging that the way that the U.S. Army Corps of Engineers issues permits for oil and gas pipelines nationwide violates some of the country’s cornerstone environmental laws.
This new lawsuit, filed May 3, is the most recent round in a nearly decade-long battle, sparked under the Obama administration, over how regulators approach the environmental impacts from oil and gas pipelines and the extent to which the public gets a say in the permitting process.
That battle centers on whether pipeline builders should be allowed to use a generic permit, known to regulators as Nationwide Permit 12 (NWP 12), when pipelines cross rivers, streams and wetlands.
Critics say authorizing pipelines with NWP 12 lets builders off the hook when it comes to the environmental scrutiny that would otherwise be required and eliminates a chance for the public to weigh in before construction begins. They say that the way the Corps has used NWP 12 for oil and gas pipelines, approaching each small water crossing separately instead of looking at the cumulative effects from an entire pipeline, has put both drinking water supplies and threatened and endangered wildlife like Florida manatees and whooping cranes at greater risk.
“Nationwide Permit 12 is a tool for corporate polluters to fast-track climate-destroying oil and gas pipelines and exempt them from critical environmental reviews and consultations,” said Doug Hayes, an attorney for the Sierra Club, which joined the Center for Biological Diversity, Friends of the Earth, Waterkeeper Alliance, and Montana Environmental Information Center in filing the lawsuit. “There’s no time to waste in eliminating this process, which only serves to bolster the oil and gas industry’s bottom lines.”
Oil and Water
Builders are already backing away from using NWP 12, with executives from natural gas pipeline company Equitrans saying on May 4 that they would seek individual permits for the Mountain Valley Pipeline’s water crossings, and adding that the additional delays will push the project’s completion date back to the summer of 2022.
A representative for the U.S. Army Corps of Engineers said that the Corps does not comment on pending litigation.
Representatives for the Interstate Natural Gas Association of American, a trade organization advocating for the natural gas pipeline industry, did not respond to a request for comment. “Presidents on both sides of the aisle have used the program,” John Stoody, vice president of the Association of Oil Pipe Lines, told the Associated Press. “Not until the modern era — when we have activists trying to use pipelines for their climate goals — has there been any controversy.”
Tens of thousands of permits for water-crossings are on the line. The Corps has estimated that NWP 12 would be used to permit more than 40,000 water crossings over the next five years — including small projects as well as massive interstate pipelines carrying fossil fuels and the raw materials for plastic and petrochemical manufacturing.
Part of the problem, the lawsuit alleges, is that the Corps’ use of NWP 12 short-circuits the environmental scrutiny required by the National Environmental Policy Act (NEPA), allowing major transmission pipelines that never actually underwent a full environmental review to be approved.
“The Corps allows oil and gas pipelines to use NWP 12 repeatedly for each water crossing along a project’s length, with no limit to the number of times a pipeline can use NWP 12 or the total number of acres of wetlands that a project can impact,” the plaintiffs wrote. “NWP 12 thereby allows the Corps to artificially treat large interstate pipeline projects as hundreds or even thousands of separate ‘single and complete projects’ to avoid the more transparent and thorough individual permit process required” by the Clean Water Act and other federal laws.
From Obama-era Keystone XL to Trump Era
The Clean Water Act gives federal regulators power over any construction and development that takes place near rivers, streams, lakes, wetlands, and other bodies of water. If a construction project involves, say, dredging a river or adding fill material like dirt into a wetland or stream, a builder has to get a Clean Water Act permit beforehand — a process that can take years in some cases.
But, of course, there’s a lot of construction in the U.S. and there are also a lot of rivers, streams, and wetlands. To make the permit process easier, especially when a given project isn’t really likely to have major impacts on a body of water, the Army Corps has created dozens of Nationwide Permits — permits that can be used at multiple sites — that builders can apply to use for many common projects, letting them step under the umbrella of that existing Nationwide Permit instead of having to get a new permit that’s specifically issued for their site.
President Obama’s administration first used NWP 12 for a major oil and gas pipeline when it greenlit the Keystone XL pipeline in 2012 — and ever since, using NWP 12 for pipelines has drawn outrage from activists who say that the generic permit process was meant for small local projects, like adding a boat ramp to a lake, not for building oil and gas pipelines carrying hundreds of thousands of barrels of oil a day across drinking water supplies.
In April 2020, a federal judge in Montana found that the Corps’ use of NWP 12 on Keystone XL was illegal and violated the Endangered Species Act in a ruling that not only tossed out Keystone XL’s permits but also vacated NWP 12 entirely. Soon after, that court amended its ruling to allow NWP 12 to still be used for things that aren’t oil and gas pipelines, like electrical power lines — but then, in July 2020, the U.S. Supreme Court stepped in and temporarily revived NWP 12 for all pipelines except Keystone XL.
Next, in mid-January — one week after the failed January 6 insurrection at the Capitol and one week before leaving office — the Trump administration published a new version of NWP 12, a version the lawsuit asserts still falls short of the standards required by federal law. That version went into effect in March.
“We are extremely disappointed that the Biden administration has allowed the Nationwide Permits to go into effect,” Hallie Templeton, deputy legal director for plaintiff Friends of the Earth, said in a statement.
Mountain Valley Pipeline Delayed
The legal uncertainty clouding NWP 12 has already affected pipeline construction projects.
In an earnings call Tuesday, May 4, Equitrans Midstream executives revealed that the controversial Mountain Valley Pipeline (MVP), which was originally slated to start carrying 2 billion cubic feet a day of natural gas in 2018, would be delayed until the summer of 2022. Costs for the 303-mile project will rise to $6.2 billion, executives said, up from an original budget of $3.7 billion.
MVP will no longer rely on NWP 12, executives said, but will instead apply for new permits for most of MVP’s water crossings from state regulators in Virginia and West Virginia and will be turning to the Federal Energy Regulatory Commission (FERC) for permits in cases where it plans to drill under rivers, streams, or wetlands.
“We do support and expect that the Army Corps will grant additional review time [for the state of Virginia permitting process] and as a result we do not believe that we will receive the necessary approvals during the third quarter of 2021 which we previously expected,” Diana Charletta, an Equitrans executive, said during the earnings call.
The company has said that about half of MVP’s roughly 1,000 waterbody crossings have not yet been finished.
MVP has faced strong grassroots opposition. In March, police arrested two activists and ended the Yellow Finch tree-sit, a long-running blockade by activists who had occupied MVP’s path for 932 days. Last week, two other protesters were charged with felonies after briefly blocking a truck carrying pipe for MVP in Virginia.
Scrutiny on Falcon Intensifies
Another project that has used NWP 12 for water crossings, Shell’s Falcon pipeline which would carry raw materials to Shell’s plastics manufacturing plant in western Pennsylvania, faced renewed calls this week for federal scrutiny following the recent public revelation of concerns raised by a whistleblower. The whistleblower first came to light in public records revealed by the FracTracker Alliance this March and in which Pennsylvania officials described “credible information that sections of Shell’s Falcon Pipeline project in western PA, developed for the transportation of ethane liquid, may have been constructed with defective corrosion coating protection.”
FracTracker Alliance and other environmental groups called for a full investigation from the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) and for Falcon’s construction to be suspended.
On May 4, Tristan Brown, acting administrator of PHMSA wrote to FracTracker Alliance, providing new details about specific concerns that had been raised in a July 2019 safety complaint, including concerns that related to places where Falcon crosses waterways.
“PHMSA has not identified actionable non-compliance or safety concerns specifically related to the July 2019 allegations,” Brown wrote, “but our safety oversight is an ongoing process.”
“PHMSA is aware of at least one individual indicating that he or she had been fired by Shell Pipeline Company while working on this project,” the letter notes, adding that another federal agency, the Occupational Safety and Health Administration (OSHA) has jurisdiction over retaliation against whistleblowers.
A Shell spokesperson said the company is cooperating with all government and regulatory agencies that have jurisdiction over Falcon. “Our commitment to the safe construction and operation of the Falcon pipeline is unwavering,” Shell spokesperson Curtis Smith told DeSmog. “The robust design and installation of Falcon has been supported by numerous inspections and the pipeline meets or exceeds all safety standards and regulatory requirements. We look forward to the day it’s fully operational.”
Smith pointed to an OSHA whistleblower matter involving the Falcon project that was dismissed in March, though that case involved an employee of a Falcon contractor, not Shell Pipeline Company.
“We’re grateful for this information but sadly still have a lot of concerns and questions,” Erica Jackson, an organizer with FracTracker Alliance, said during a call organized by Appalachian regional groups to discuss the Falcon pipeline. She addded that PHMSA’s response appeared to rely in part on data supplied by Shell, rather than independent inspections. “It appears that they’re relying maybe on self-reported data, which is concerning.”
Meanwhile, the lawsuit challenging the use of NWP 12 is bringing pipeline permits back into the spotlight. Plaintiffs in the case are seeking to vacate NWP 12 and asking the federal court in Montana for a declaration that the Corps’ use violated the Endangered Species Act, the Clean Water Act, NEPA, and the Administrative Procedures Act.
“The Corps’ failure to comply with bedrock environmental laws requires immediate attention,” Jared Margolis, a Center for Biological Diversity attorney, said in a statement. “There’s simply no justification for allowing destructive and dangerous pipelines to avoid rigorous environmental review, and it’s disheartening to see the Corps continue to flaunt its obligation to protect our nation’s waters and imperiled wildlife.”