Army Corps Sued for Failure to Protect Waterways, Endangered Wildlife From Pipeline Construction

May 3, 2021

Nationwide Permit 12 Greenlights Environmental Destruction 

Environmental groups filed a lawsuit today against the U.S. Army Corps of Engineers over a nationwide permit that allows streamlined development of oil and gas pipelines through wetlands, streams, and rivers. The lawsuit was filed in federal district court in Montana by the Center for Biological Diversity, Sierra Club, Friends of the Earth, Waterkeeper Alliance, and Montana Environmental Information Center.

In reissuing Nationwide Permit 12, during the final days of the Trump administration, the Corps failed to analyze the environmental impacts of pipelines, including from oil spills and the destruction of tens of thousands of acres of waterways relied on by people and endangered wildlife. 

While the Biden administration has called for a review of the Nationwide Permits — consistent with its Jan. 20 Executive Order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” — it allowed the new iteration of Nationwide Permit 12 to become effective before any changes could be made to ensure that communities, wildlife, and waterways are protected. 

“The Corps’ failure to comply with bedrock environmental laws requires immediate attention,” said Jared Margolis, a senior attorney at the Center for Biological Diversity. “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.”

The lawsuit claims that despite a federal court previously ruling that the Endangered Species Act requires consultation with expert wildlife agencies to ensure listed species are not jeopardized by the Corps’ permit program, the Corps failed to consider the impacts of Nationwide Permit 12 on imperiled species. It further asserts that the Corps is in violation of the Clean Water Act and the National Environmental Policy Act for failing to fully consider the significant environmental impacts of pipeline construction and operation in waters and wetlands. 

The Clean Water Act only allows Nationwide Permits to be used for activities with minimal impacts, yet the Corps has authorized massive oil and gas pipelines to use this streamlined permit instead of requiring individual permits. That allows controversial pipelines — including Dakota Access and Keystone XL — to avoid public scrutiny and a more complete analysis of their impacts.  

“Rather than complying with its legal obligations to protect our wetlands and waterways and everyone who uses and enjoys them, the Trump administration doubled down on an unlawful nationwide permit by rushing out an even weaker permit with less effective protections,” said Daniel E. Estrin, advocacy director and general counsel for Waterkeeper Alliance. “The Corps must rethink its approach to nationwide dredge-and-fill permitting to ensure that covered activities will legitimately have only minimal adverse effects and will not put our waters or the people and species that rely on them in jeopardy.”

“We are extremely disappointed that the Biden administration has allowed the Nationwide Permits to go into effect,” said Hallie Templeton, deputy legal director at Friends of the Earth. “This move streamlines permitting for a range of dirty industries, like pipelines and offshore aquaculture, and allows the Army Corps to approve these projects without fulfilling mandated environmental reviews and consultations. This is nothing short of blatant disregard for federal law and the range of serious environmental and socioeconomic harms that will occur.”

“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 Sierra Club Senior Attorney Doug Hayes. “While the Biden administration has promised a review of the Corps’ program, it has allowed this new permit to take effect in the meantime, a delay which is detrimental to wildlife, waterways, and our climate. There’s no time to waste in eliminating this process, which only serves to bolster the oil and gas industry’s bottom lines.”

“In Montana, clean and cool water is our most valuable resource, and the Army Corps permitting scheme for pipelines impacting our waterways flies in the face of common sense, legally guaranteed protections,” said Derf Johnson, clean water program director with the Montana Environmental Information Center. “Pipeline projects such as Keystone XL, which poses a direct threat to the Missouri River and tribal communities which rely on the water, must be fully and comprehensively evaluated for their environmental impacts.”

Background

Nationwide Permits are general permits that offer a streamlined alternative to the Corps’ individual permitting process. They are intended for activities that will cause only minimally adverse environmental effects. They require no public notice, and in many cases, projects covered by them may be constructed without any notification to, or further review by, the Corps.

The 2021 iteration of Nationwide Permit 12 will allow thousands of discharges of dredged or fill material into the nation’s waters and wetlands from oil and gas pipeline construction. The Corps estimates that Permit 12 will be used 8,110 times per year, or an estimated 40,550 times over its expected five-year duration, resulting in impacts to approximately 3,075 acres of U.S. waters. These activities — which are approved with little or no environmental review — threaten iconic species like critically endangered sturgeon and whooping cranes, Florida manatees, and hundreds of kinds of migratory birds that need wetlands to survive. 

In prior litigation over the 2017 version of the permit, a federal court found that the Corps had violated the Endangered Species Act by not undertaking consultation with the Fish and Wildlife Service and the National Marine Fisheries Service regarding the impacts on endangered wildlife from Nationwide Permit 12. That litigation prevented the continued construction of the Keystone XL pipeline. But the Trump administration ignored that decision and reissued the program without conducting the necessary consultation to ensure imperiled species are protected.

The 2017 lawsuit also included claims under the Clean Water Act and National Environmental Policy Act; however, the court did not issue a ruling on those claims, stating that the Endangered Species Act consultation it ordered would inform the Corps’ consideration of its legal obligations under those other environmental statutes. Rather than address those issues for the 2021 permit, the Corps attempted to replace NWP 12 with a new version, which does nothing to remedy the legal violations identified in the prior case.  

*Photo By Kyle T Perry/Shutterstock