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Court Overturns NWP 12

Updated: Jul 7, 2020

Yesterday, I wrote about how how hard it is to challenge Corps 404 permit. Well, yesterday, the District of Montana proved me wrong, at least in this one case. In a lawsuit tied to the Keystone XL Pipeline, the court held that the Corps was arbitrary and capricious in not going through ESA consultation when re-issuing NWP 12, which authorizes fills in connection with utility lines, which include pipelines. Given the stakes, this case almost certainly will be appealed. The other defendants in the case are TC Energy Corp., the State of Montana and the American Gas Association.


Northern Plains Resource Council v. USACOE, 2020 WL 1875455 (D. Mt. 2020) (on motion for summary judgment in case challenging Corps reissuance of NWP 12, held that the Corps violated the APA by not engaging in ESA § 7(a)(2) consultation when reissuing the permit; the ESA provides a low threshold for § 7(a)(2) consultation, and Corps cannot evade § 7(a)(2) consultation by relying on project-level review or General Conditions; court deferred on issue on whether NWP 12 met CWA § 404(e) requirement that permit will not cause more than minimal adverse environmental effects)

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