Oklahoma joins pipeline fight and asks for Supreme Court intervention


Oklahoma, Texas and Kansas are among the 18 states that contend it is “critical” for the Supreme Court to intervene in a circuit court case to allow an Army Corps of Engineers water crossing permits for new oil and gas pipelines.

The states, led by West Virginia Attorney General Patrick Morrisey (R), said that developers of new oil and gas pipelines face a “lose-lose proposition” if an order from a lower court temporarily blocking the use of the streamlined Nationwide Permit 12 (NWP 12) program is allowed to remain in place as the Army Corps appeals the decision in the 9th U.S. Circuit Court of Appeals.

E and E News reported that NWP 12 allows projects that meet a certain set of criteria to use an expedited permitting process for the approval of dredge-and-fill activities in waterways, rather than pursue more rigorous individual permits for each water crossing in a project.

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.

Other states joining the brief were: Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas and Utah.

The court filing is the latest effort to persuade the justices to step in to stay an amended order by the U.S. District Court for the District of Montana last month sparked by litigation over the Keystone XL oil pipeline.

Chief Judge Brian Morris ordered the Army Corps to conduct an interagency consultation under the Endangered Species Act. The federal agency is temporarily barred from issuing the permits for the construction of new oil and gas pipelines while that review process is ongoing.

The 9th Circuit had declined to pause Morris’ order as the court considers the appeal of the nationwide injunction, prompting the petition for the Supreme Court to get involved.

The states argued that they would also face economic consequences from project delays in the midst of dealing with the additional financial strain of the coronavirus pandemic.

“[T]he economic vitality pipeline projects generate is more essential now than ever,” they wrote.

The states added that Morris’ order had blindsided them, since it came after he had assured the state of Montana and other parties that they would be able to rely on the permitting program until it expired, even if the challengers in the case won on the merits.

The states added that even temporary delays could lead to permanent project shutdowns, affecting jobs, tax revenue and energy resources.

“The Order does not grapple with these consequences. The Ninth Circuit was wrong not to stay the Order in light of these concerns, making this Court’s intervention critical,” the states wrote.

The Army Corps does not comment on pending litigation.

Source: E and E News