Members of the House Energy Action Team (HEAT) yesterday sent a letter to U.S. Attorney General William Barr in support of the Department of Justice’s opposition to nationwide injunctions and the DOJ’s effort to challenge the District Court for the District of Montana’s recent injunction of Nationwide Permit 12 (NWP 12) issued by the U.S. Army Corps of Engineers.
Permitting under NWP 12 was suspended in a ruling from Judge Brian Morris in Northern Plains Resource Council et al v. U.S. Army Corps of Engineers et al in regard to the Keystone XL pipeline and concerns regarding endangered species in the pipeline’s proposed water crossings. In addition to revoking Keystone XL’s permits under NWP 12, Morris ordered the Corps to halt permitting under the nationwide permit – which is intended to streamline the already-rigorous process and has verified over 38,000 pre-construction notifications since it entered into effect in 2017.
As the HEAT letter argues, this ruling, if applied nationally, would have a “devastating effect on thousands of projects.” The impact stretches far beyond oil and gas pipelines. The letter notes:
USACE would be prohibited from quickly authorizing activity related to linear infrastructure projects across multiple sectors of the economy involving any pipeline, drinking water line, cable line, or wire for the transmission of electricity, energy, telephone, and television.
Further, the letter questions a district court’s ability to issue a nationwide injunction of this magnitude:
The issuance of a nationwide injunction by a district court is an unconstitutional assertion of judicial authority that exceeds principles of equitable relief. In these circumstances, a district court goes beyond the case and controversy at hand to enjoin the Executive Branch across the nation. Nationwide injunctions undermine equitable relief, unnecessarily affecting non-litigants by providing a remedy beyond what is necessary to redress the plaintiff’s injury.
Our nation’s infrastructure network is more important now in light of COVID-19 than ever before. Hindering the tried-and-true permitting process at this critical moment would have significant ramifications:
…A nationwide injunction would disrupt reliance on the NWP 12 and require an individual Clean Water Act Section 404 permit for each project site. This is a time-consuming process requiring a case-by-case review that would needlessly extend permitting approvals by over 200 days on average, according to the USACE. This unnecessary delay would be devastating as our economy reopens in response to the COVID19 pandemic. Clearly the nationwide application of this order is inappropriate as it would unnecessarily extend beyond the equitable relief sought by the Northern Plains plaintiffs.
The GAIN Coalition joins HEAT, The Department of Justice, and the U.S. Army Corps of Engineers in opposing the suspension of NWP 12. Rather than adding unnecessary roadblocks and more red tape in the multi-year permitting and approval process, the government has a responsibility to provide a straightforward, streamlined process that ensures regulatory certainty for infrastructure investments.