Principal Parker Moore (Washington, DC) was quoted in an April 16 article in Law360 titled "Keystone XL Pipeline Ruling Throws Projects Into Chaos." The article describes an order issued by U.S. District Judge Brian Morris on April 15 with serious and immediate national implications. The broadness of the order, issued in Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-00044-BMM (D. Mont.) stunned project proponents across the country because of the far-reaching consequences it presents.  As Parker explained, "Thousands upon thousands of projects rely on Nationwide Permit 12 in order to meet schedules and budgets, and the vacatur and injunction issued yesterday put every one of these projects in jeopardy."

The currently vacated permit, Nationwide Permit 12 (NWP 12), is used by the Army Corps of Engineers give streamlined approval to many infrastructure projects, from pipelines to telephone wires. The Corps had conducted voluntary programmatic consultation for prior 5-year iterations of NWP 12, but maintained that NWP 12 would have no effect on ESA-listed species or critical habitat in this case, because NWP 12’s conditions do not authorize projects that might have such effects without first completing project-specific consultation. (Click here for a more in depth analysis from B&D authors.)

Parker also cautioned that Judge Morris’ decision could pose even broader implications for all industrial sectors by questioning the legality of the entire Nationwide Permit program’s strategy for complying with the Endangered Species Act. If other courts adopt this rationale, it could mean “that every single nationwide permit that is used would have to go through consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service," he said.

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