On April 15, the U.S. District Court for the District of Montana suspended the Nationwide Permit (NWP) 12 program. While the case at hand specifically dealt with the Keystone XL Pipeline, the court determined the flaws with NWP 12 represented a systemic shortcoming.

In fact, by failing to consult with federal agencies in regard to the Endangered Species Act, the U.S. Army Corps of Engineers had acted “arbitrarily and capriciously” when it reissued the NWP 12 program in 2017.

In spite of a recent decision by the U.S. Supreme Court, which allows pipelines other than Keystone XL to continue to use NWP 12 during the appeal process, a previous ruling in a case before the U.S. Court of Appeals for the Fourth Circuit makes it unlikely the imperiled Mountain Valley Pipeline (MVP) will see its permit reissued anytime soon.

The NWP 12 program generally authorizes a broad class of “utility lines” to cross, or otherwise impact, streams and wetlands. While not the only means of obtaining such authorization, NWP 12 is the most widely sought permit due to its one-size-fits-all approach. Under NWP 12, projects do not need separate, site-specific permits for each individual waterbody; all stream and wetland crossings are authorized under the same permit.

Without NWP 12 in hand, MVP is not able to undertake any construction activities that impact the hundreds of streams and wetlands it aims to cross in Virginia.

Critics of the April ruling – which was subsequently narrowed in scope – were initially aghast that hundreds of planned infrastructure projects, from pipelines and power lines, to TV and internet cables, were potentially left in limbo. However, it has been far more problematic that these vastly different infrastructure projects were ever allowed to be regulated under the same blanket permit program. A simple Google image search reveals the dramatic differences between installation of a large-diameter oil or gas transmission pipeline and a fiber-optic internet cable. 

At 42-inches in diameter – even larger than Keystone XL – the MVP would be one of the largest fracked gas pipelines in the country. Keystone XL may have been the impetus for the district court’s ruling, yet the MVP is far more emblematic of the general failure of the NWP 12 program.

The MVP had NWP 12 revoked in October 2018 – a full eighteen months before the suspension of the NWP 12 program – when the appellate court found the Corps had overstepped its authority. That the Corps was not able to rewrite and reissue NWP 12 to MVP prior to the program’s suspension is a clear indication the permit should not be available to this class of infrastructure mega-projects. 

The escalating controversy surrounding the application of NWP 12 to oil and gas pipelines presents Virginia with an extraordinary opportunity to right an historic wrong. 

The Virginia Department of Environmental Quality (DEQ), led by director David Paylor, erred when it ceded regulatory authority over MVP’s stream and wetland crossings to the Corps. In lieu of relying on NWP 12, DEQ should have implemented its own stream-by-stream permitting program, as advocated by then gubernatorial candidate Ralph Northam. 

The consequences of the state failing to assume responsibility for regulating the MVP have been profound; DEQ has already fined MVP over $2 million for water quality violations, and more fines are on the way., More to the point, the environmental damages wrought by the MVP will take generations to heal.

According to its own statements, DEQ has no basis for continuing to rely on NWP 12 in the case of the MVP. At a particularly contentious meeting of the State Water Control Board in April 2018, the director of DEQ’s water permitting division, Melanie Davenport, claimed the Corp’s review process under NWP 12 was “essentially the same” as the state’s own water permit process. Unless Virginia’s water quality laws are also arbitrary and capricious, the district court ruling has rendered this statement categorically false.

Critics of the Keystone XL ruling continue to insist the court is making a mountain out of a molehill, but the fact is NWP 12 makes no distinction between the scale of either mountains or molehills. If the true goal of environmental regulation is to ensure that the impacts of major infrastructure projects are clearly understood, minimized and adequately mitigated, then the MVP must be held to the higher standards demanded by an individual, stream-by-stream permit process. 

It is imperative the state immediately pursue this course of action, rather than seek new pretexts for abdicating its regulatory authority over the MVP.