The 9th Circuit Court of Appeals today upheld Judge Brian Morris’s ruling overturning Nationwide Permit 12 for the Keystone XL Pipeline. That permit was designed to provide a fast track for pipelines and other major construction projects to gain permission to cross multiple waterways at once. The suit was brought by Dakota Rural Action’s sister group, Northern Plains Resource Council, and other parties.
Judge Morris ruled last month that the Army Corps of Engineers failed to consider impacts under NEPA and the Endangered Species Act when granting the permit to TC Energy for hundreds of water crossings involved in the construction of the Keystone XL Pipeline. That ruling had much broader impacts for the use of Nationwide 12 permitting, though Morris later clarified the ruling to focus specifically on new pipeline construction.
The appeals court decision means that, barring any further action from the 9th Circuit, the question of whether Nationwide Permit 12 can be used for KXL or other projects will now likely end up in the U.S. Supreme Court–which could take months to prepare.
According to the conditions imposed on the South Dakota Public Utilities Commission (PUC) permit for the pipeline, construction cannot legally begin in the state until ALL permits, easements, and agreements in hand. This decision makes it highly unlikely that TC Energy will be able to lay pipe in the state this year, or perhaps ever.
Dakota Rural Action lauds the decision of the court, which stated that the government and pipeline companies were unlikely to prevail on the merits of their case, as well as citing the “probability of irreparable harm” should the court overturn Judge Morris’s earlier decision and allow construction on water crossings to go forward.
DRA continues to oppose the Keystone XL Pipeline, and is currently pursuing a contested case hearing involving the Town of Buffalo, in Harding County. The case before the Dept. of Environment & Natural Resources Water Management Board, which includes multiple individual intervenors, seeks to expose the town’s deal to supply TransCanada with water for construction purposes while claiming in their Water Appropriation Permit that the newly-drilled well (which appears to be paid for by the company) is for domestic use only. That case is scheduled for hearing on July 9th in Pierre.