Federal court sends pipeline permit back for consultation

A federal court vacated a permit issued by the Army Corps of Engineers for construction of the Keystone XL oil pipeline, which will carry crude oil extracted from tar sands in Alberta over the U.S. border and through Montana, South Dakota and Nebraska. The judge sent the permit back to the Army Corps for further consultation under the Endangered Species Act.

Construction is just beginning on the pipeline project along the U.S.-Canada border. But without the permit from the Corps allowing it to cross waterways in the U.S., construction scheduled for this summer will be delayed.

Last summer, landowners and environmental groups sued the Army Corps, challenging their approval of the Keystone XL pipeline and arguing that the agency did not fully consider the project’s environmental impacts. The judge’s April 15 order sends the permit back to the Army Corps of Engineers for additional consultation under the Endangered Species Act, which would then enable the agency to perform additional environmental review of the permit under both the National Environmental Policy Act and Clean Water Act.

The court determined that the agency’s nationwide permit was invalid, because it did not appropriately consider possible effects on threatened and endangered species when the permit was reauthorized in 2017.

In response to the ruling, the Army Corps has halted the nationwide use of that permit, which it has used to approve water crossings by other pipelines, as well as power lines and other utility projects. Hundreds of permit approvals around the country are now on hold, as the agency determines how to comply with the court ruling and conduct the necessary environmental review and analysis.

Construction of the Keystone XL pipeline was also halted in November 2018 after the same judge determined that the state department’s review of its permit for the pipeline’s order crossing was not sufficient under the National Environmental Policy Act. That analysis was never completed, since the administration instead issued a presidential permit, which is not subject to NEPA, for the border crossing. That action is the subject of separate pending litigation.