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Nationwide Permit 12 and Domestic Oil Pipelines: An Incompatible Relationship?

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dc.contributor
dc.contributor.author Arkfeld, Alexander S.
dc.date.accessioned 2018-01-05T19:32:33Z
dc.date.available 2018-01-05T19:32:33Z
dc.date.issued 2017-12
dc.identifier.citation 92 Wash. L. Rev. 1991 (2017) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1756
dc.description Volume 92, no.4, December 2017 en_US
dc.description.abstract As climate change’s momentum becomes increasingly more difficult to quell, environmentalists are litigating to stop oil pipeline expansion. Litigation over two recently completed oil pipelines—the Flanagan South and the Gulf Coast—illustrates the legal battle environmentalists face. Given the outcome of those cases, it may seem that environmentalists face insurmountable judicial precedent. But they are not out of options quite yet. Although no statute expressly requires the federal government to conduct environmental analysis of proposed domestic oil pipelines, two statutes—the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA)—generally work in tandem to require the U.S. Army Corps of Engineers (Army Corps or Corps) to complete an analysis when a proposed pipeline crosses regulated waters. However, the Army Corps recently has begun using a general permit called Nationwide Permit 12 (NWP 12) to streamline the approval process by avoiding individual review of pipelines. The Tenth and District of Columbia Circuits upheld the Army Corps’s use of NWP 12 in approving the Flanagan South and Gulf Coast pipelines, rejecting arguments that such use violates the CWA and NEPA. Not only did environmentalists lose both decisions, but the Army Corps also subsequently tightened its analysis to avoid potential future liability. Despite these setbacks, this Note contends that the battle is not yet over. The Note argues that the Army Corps failed to comply with the CWA’s plain meaning when it issued NWP 12, resulting in a limited opportunity for the public to participate. By limiting public comment, NWP 12 undermines the Corps’s ability to take a hard look at the environmental consequences of proposed oil pipelines. If the agency cannot comply with the CWA’s plain meaning, it can no longer use NWP 12 to avoid individual review of oil pipelines. Given recent judicial precedent, environmentalists face a difficult task. But hope remains. Under the framework first described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the circuit courts are improperly deferring to the Army Corps’s interpretation of the CWA when the statute’s meaning is clear. Judicial recognition and correction of this would be a victory for environmentalists, as it would increase federal environmental review of domestic oil pipelines and provide the public with a better opportunity to voice its concerns over the proliferation of oil pipelines in the United States. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Note en_US
dc.title Nationwide Permit 12 and Domestic Oil Pipelines: An Incompatible Relationship? en_US
dc.type Article en_US
dc.rights.holder Copyright 2017 by Washington Law Review Association. en_US


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