Montana Federal District Court Issues Nationwide Injunction to Halt Army Corps Nationwide Permits

Infrastructure projects may require expansive individual permit reviews for de minimis construction activity

On April 15, 2020, the Federal District Court for Montana granted a request by several environmental activist organizations, including Northern Plains Resource Council (NPRC), to invalidate Army Corps of Engineers Nationwide Permit No. 12 (NWP 12). The Corps issues nationwide permits for categories of activities that are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” Prospective permittees under NWP 12 must file a Pre-Construction Notification (PCN) with the Corps to confirm eligibility and authority to proceed without further permit review.

The Court accepted NPRC’s argument that the Corps’ 2017 renewal of the NWP violated the National Environmental Policy Act (NEPA) because the Corps failed to perform a consultation with other federal resource agencies to determine whether a NEPA-mandated Environmental Impact Statement was required for re-issuance of the NWP. Importantly, the Court held that the Corps PCN reviews do not provide adequate Endangered Species Act protections and that program-level reviews of ESA impacts must be obtained through inter-agency consultations. The Court’s finding regarding PCN-level satisfaction of ESA obligations could arguably undermine other NWPs. 

The Court Order vacated and remanded the NWP, directing the Corps to perform necessary consultation and compliance with NEPA. Importantly, the Court order prohibits the Corps from authorizing Clean Water Act (CWA)-regulated activity pursuant to NWP 12 “pending compliance with all environmental statutes and regulations.” On Friday, April 17, 2020, each of the Corps’ 45 District offices notified PCN applicants that until further notice, the Corps has halted issuance and processing of PCNs related to NWP No. 12.  

The permittee in the case, TC Energy (developer of the Keystone XL Pipeline), the Corps, and the Department of Justice are expected to appeal the Court’s order. The many affected permit applicants with stalled PCN reviews may weigh in as amicus curiae or seek separate judicial review in an attempt to more quickly challenge the authority of the Court to impose and enforce its injunction outside the Montana District.

Please contact Clark Hill’s EENR Practice Leaders for information on the implications of this decision or other Corps permitting questions.