States Ask SCOTUS to Lift Ban on NWP 12

Eighteen states last week asked the U.S. Supreme Court to intervene and block a Montana federal judge’s order partially banning the use of Nationwide Permit 12 (NWP 12) – a critical Clean Water Act permit used by the Army Corps to approve dredge-and-fill activities in waterways for infrastructure development. The use of NWP 12 was banned in a May opinion from Judge Brian Morris in regard to the Keystone XL crude oil pipeline.

The brief argues that NWP-12 makes federal approval of energy infrastructure projects “quicker and more cost-effective than other permitting systems,” noting that these projects and the resources they provide are critical to their states’ economies.

E&E News reported:

The states said pipeline developers are choosing between “sinking time and money into the individual permitting process, or they could wait to start construction until the Corps’ position is ultimately vindicated,” the states wrote in a proposed “friend of the court” brief.

“Either option will potentially add years to the timelines of projects that require substantial capital investment.”

They pointed to permitting processing estimates that found individual permits took 788 days and $271,596 to complete, compared with the average NWP 12 applicant who spent 313 days and $28,915.

If all new pipelines are diverted to individual permits, those timelines would slow down further, they warned.

Law360 highlighted the brief as well, noting:

According to the states, electricity is an “essential and foundational” part of modern life, “no less than water itself.” And they said Judge Morris’ order puts a crimp in energy providers ability to meet growing demand by building new pipelines.

For example, they said that existing pipelines and refineries can’t handle the amount of oil that’s currently being extracted from the Permian Basin, and quoted the National Energy Technology Laboratory’s estimate that between $470 million and $1.1 billion of additional investment in pipeline infrastructure is needed to meet seasonal demand in part of the country.

Rather than introducing additional regulatory hurdles and more unnecessary red tape, now is the time to promote regulatory certitude and ensure a straightforward permitting and approval process with clear guidelines for infrastructure developers. Energy infrastructure is essential to safely and efficiently transporting the fuels that Americans rely on each and every day. With the economy already facing unprecedented challenges, now is not the time to gamble with infrastructure investment and our nation’s energy security.