June 2022, Vol. 249, No. 6


NWP 12 Up for Review Again

By Stephen Barlas, Contributing Editor, Washington, D.C.

The Army Corps of Engineers is undertaking a review of Nationwide Permit 12 (NWP 12), which allows gas and oil pipelines to avoid a lengthy, expensive environmental review when building facilities near wetlands.  

The Corps held virtual hearings in May to determine whether NWP 12, one of about 50 NWPs, should be more difficult to obtain, because it conflicts with President Joe Biden’s executive order from January 2021.  

That executive order said it was administration policy to “listen to the science” and to further a laundry list of environmental objectives related to clean air and clean water in addition to holding “polluters accountable, including those who disproportionately harm communities of color and low-income communities.” NWP 12 expires in March 2026.  

In the last days of the Trump administration, the Corps split NWP 12 into three separate NWPs – one for oil, gas, and petrochemicals (which remained as NWP 12), one for electric utility lines and telecommunications activities (which is now NWP 57), and one for utility line activities for water and other substances (which is now NWP 58). Interstate Natural Gas Association of America (INGAA) opposed that trifurcation.  

The January 2021 NWP 12 also removed a number of preconstruction notification (PCN) requirements previously required for the NWP, but it also included a new PCN requirement for new oil or natural gas pipelines greater than 250 miles (402 km) in length. INGAA opposed that new 250-mile requirement and wanted the Corps to keep all the PCNs as they existed in 2017, the last time NWP 12 changes were issued.  

The NWP 12 had recently become controversial. In April of 2020 opponents of the Keystone XL pipeline convinced a federal judge to issue a nationwide injunction against the use of NWP 12 because the Corps did not dig deep enough into potential violations of the Endangered Species Act when issuing the Keystone XL NWP 12 permit. In July 2020, the Supreme Court stayed that injunction for all project developers except Keystone XL. 

In its notice announcing the review, the Corps asked if whether the NWP 12 should be tightened so that projects lead to “no more than minimal individual and cumulative adverse environmental effects.” In addition, the Corps asked if more should be done to involve environmental justice communities in NWP 12 proceedings and whether there should be differences in the way the Corps handles NWP 12 applications for gas and oil pipelines. 

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