In a major victory for pipelines, a federal court in western Oklahoma has denied a request by the Sierra Club and two other organizations to enjoin the construction of the Cushing, OK-to-Port Arthur, TX, portion of the Keystone Pipeline, which was slated to begin Monday (Aug. 6). It further rejected an attack on the legality of a water-crossing permit needed in pipeline construction.

The Sierra Club, Clean Energy Future Oklahoma and East Texas Sub Regional Planning Commission filed a lawsuit in U.S. District Court for the Western District of Oklahoma in mid-July, challenging nationwide permits issued by the U.S. Army Corps of Engineers for the crossing of streams and wetlands (NWP 12) by pipelines during construction. They contend that NWP 12 violates the federal Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). The groups are expected to appeal to the U.S. Court of Appeals for the Tenth Circuit in Denver.

Although the lawsuit involves the construction of the Keystone pipeline, the case has wide implications for all pipelines, including natural gas, according to law firms watching the case (see Daily GPI, July 25). Intervenors in the lawsuit include the Interstate Natural Gas Association of America, American Gas Association, Association of Oil Pipe Lines, the American Petroleum Institute and the Utility Water Act Group.

"The court finds plaintiffs [Sierra Club et al] have failed to establish their right to this extraordinary relief because they have failed to establish a substantial likelihood of success on the merits, and thus the injunction is denied," the court ruled on Sunday.

"The TransCanada intervenors have fulfilled every requirements of the United States Government to obtain verifications of their preconstruction notifications to construct the 485-mile pipeline. Thus far they have spent in excess of $500 million. It is undisputed that further delay will cost hundreds of thousands of dollars each day. Plaintiffs [Sierra Club et al] has not suggested they have the ability to post a bond to cover any of the irretrievable loss should they ultimately lose," the court said.

"The court is sympathetic with the plaintiffs' efforts to protect our environment. We all have a vested interest in that. However, while acknowledging the limited time it had to consider this complex case, the court is satisfied that plaintiffs failed to show that this project will have more than a minimal impact on the environment. Its benefits...far exceed its costs."

At issue in the lawsuit is the Corps' definition of activities that qualify for NWP 12. The nationwide permit authorizes streams/wetlands crossings related to the construction of lines, both oil and gas, provided the activities do not result in the loss of greater than one-half acre of waters in the United States for each "single and complete project."

The Sierra Club and the other two groups contend that the term "single and complete project" permits the "unlimited total loss of waters of the United States, and therefore, permits projects with more than minimal adverse environmental effects."

The Sierra Club argues that the use of NWP 12 is inappropriate in the case of Keystone Pipeline because individual stream crossings collectively would result in disturbance to more than one-half acre of water.

The Sierra Club and the other two groups contend that NWP 12 permits allow for the "piecemealing" of large interstate pipeline projects like the Keystone Pipeline Gulf Coast Project into several one-half acre projects so as to circumvent the Corps' individual permit process for streams/wetlands crossings, which involves greater regulatory scrutiny under NEPA and CWA.

"The court concurs with defendants [Corps] that the Corps' interpretation is based on a permissible construction of the CWA and NWP 12 accounts for the potential cumulative impact of a linear project."

Moreover "the court rejects plaintiffs' contention that the definition is arbitrary and capricious because it contradicts the ordinary meanings of the words 'single' and 'complete.'"

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