Nationwide permitting for linear projects, relied upon by pipeline operators for construction and maintenance projects, recently survived a challenge from environmental groups.  On December 30, 2013, the U.S. District Court for the Western District of Oklahoma ruled against the Sierra Club and other environmental groups in their challenge to the U.S. Army Corps of Engineers’ (Corps) use of Nationwide Permit 12 (NWP 12) for linear utility line projects.  The suit, initially brought in June 2012, specifically targeted the Corps’ approval of a NWP 12 for the construction of the southern “Gulf Coast” leg of the Keystone XL pipeline, but also more broadly challenged the Corps’ 2012 reissuance of NWP 12 as a violation of the Clean Water Act (CWA), National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA) (see prior pipelinelaw alert here). 

In August 2012, the District Court denied the Sierra Club’s request for an injunction halting commencement of construction of the Gulf Coast Pipeline, holding that it failed to show that the project would “have more than a minimal impact on the environment.”  (See prior pipelinelaw alert here).  The Tenth Circuit Court of Appeals affirmed the District Court’s denial of the injunction on October 31, 2013.  On December 30, 2013, the Western District of Oklahoma ruled on the merits of Sierra Club’s claims, holding that the Corps complied with the CWA, NEPA and APA in its reissuance of NWP 12 and decision to approve a NWP 12 for the Gulf Coast Pipeline.

Pipeline companies routinely rely on NWP 12 for construction and maintenance activities, and this decision addresses and upholds a number of key provisions of NWP 12, as well as the overall Nationwide Permit program.  The decision also reinforces key administrative law principles, including waiver where a party fails to present its concerns to the agency during the public comment process.  Hunton & Williams served as lead counsel on behalf of a coalition of intervenor national energy trade associations whose members frequently utilize NWP 12 for the construction of pipelines and electric transmission lines.  A copy of the decision can be accessed here.