U.S. Judge Revises Environmental Ruling on Pipeline Permits

BILLINGS, Mont. (AP) — A U.S. judge on Monday revised a recent court ruling that threatened to hold up thousands of utility projects crossing streams and wetlands but left in place a requirement for new oil and gas pipelines to undergo further environmental review.

The ruling from U.S. District Judge Brian Morris means the U.S. Army Corps of Engineers can again use its permitting program to approve electrical lines and other utility work through streams and wetlands as well as approve maintenance and repair work on existing pipelines.

The ruling stops short of halting construction on oil and gas pipelines, but projects could face further delays and increased costs as companies must now conduct individual environmental reviews to build under each waterway the pipeline crosses.

“We got what we asked for, so from our position this is great,” said attorney Jared Margolis with the Center for Biological Diversity.

The Army Corps program, known as Nationwide Permit 12, was blocked by Morris last month. In a lawsuit over the Keystone XL pipeline, the judge sided with environmentalists who argued companies were using the program to skirt water protection laws and ignore the cumulative harm from thousands of stream and wetlands crossings.

Attorneys for utility industries and the government said Morris’ original ruling hampered thousands of construction projects across the U.S. They urged him to reconsider.  

In response, Morris agreed to limit the scope of his ruling but stopped short of a full reversal. He said the Army Corps “committed serious error” in failing to adequately consult with wildlife agencies before reauthorizing the permitting program in 2017.

“To allow the Corps to continue to authorize new oil and gas pipeline construction could seriously injure protected species and critical habitat,” Morris wrote.  

A spokeswoman for the gas industry said the ruling would quickly be appealed.

“Arbitrarily singling out certain new projects only prolongs the highly disruptive nature of this order,” said Amy Conway with the Interstate Natural Gas Association of America.

She said the permit program allowed projects to be reviewed efficiently “with minimal environmental impacts.”

Toby Mack, president of the Energy Equipment & Infrastructure Alliance (EEIA) framed the exclusion of non-pipeline projects as a sign of bias.

The decision to allow crossings for utility and maintenance projects but still require permits for pipeline construction projects "reveals the ruling's true purpose - encumbering Keystone XL and oil and gas pipelines in general," Mack said in a statement on Tuesday.

"This he justified (without offering reasons) by asserting that other types of utility projects do not pose the same degree of risk to the environment as do pipelines," Mack said. "This exclusion was supported by the plaintiffs likely because they saw the value of removing all the otherwise affected utility industry organizations from the coalition opposing the court's action." 

The Army Corps has broad jurisdiction over U.S. waterways. It uses the blanket permit to approve qualifying pipelines and other utility projects after only minimal environmental review.

Since Nationwide Permit 12 was renewed three years ago it has been used roughly 38,000 times, according to federal officials.

Army Corps spokesman Doug Garmin referred questions to the Justice Department, which declined to comment.

Industry supporters describe the program as crucial for timely decisions on projects that can stretch across multiple states and cross hundreds of water bodies. Analyzing each of those crossings would be costly and is unnecessary because most involve little disturbance of land or water, they said.

Other major pipeline companies said after the initial ruling they are monitoring the situation but would continue work as normal on existing construction projects.

— P&GJ staff contributed to this report.

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