ELR Citation: 50 ELR 20091
No(s). CV-19-44-GF-BMM (D. Mont. Apr 15, 2020) (Morris, J.)

A district court vacated a nationwide permit reissued by the U.S. Army Corps of Engineers that allowed for construction of the Keystone XL Pipeline across waterways. Environmental groups argued the reissuance violated the ESA by failing to initiate programmatic consultation. The court found that declarations made by the groups' experts and the Corps' own decision document indicated that the permit authorized discharges that "may affect" listed species and critical habitat, and thus that the Corps should have initiated §7(a)(2) consultation before it reissued the permit. The groups also argued the permit violated NEPA by failing to adequately evaluate its environmental impacts, and the CWA by authorizing activities that would cause more than minimal adverse environmental consequences. The court anticipated that ESA consultation would inform the Corps' assessments under these statutes, and thus concluded that it need not determine at this point in the litigation whether the Corps made a fully informed and well-considered decision under NEPA and the CWA when it reissued the permit. It therefore remanded the permit to the Corps for compliance with the ESA, and vacated the permit pending completion of the consultation process.