US court dismisses Keystone XL water permit appeal

A federal court dismissed a lawsuit challenging a nationwide water permit in a case involving the now cancelled Keystone XL crude pipeline.

The appeals in the case are moot because the Army Corps of Engineers in April issued a new version of the nationwide permit program known as NWP-12 which supersedes the previous permit, according to a ruling this week in the 9th US Circuit Court of Appeals.

"These interlocutory appeals and the underlying claim that is the subject of these appeals are moot," the ruling said.

The 9th Circuit also remanded the case to the lower court with instructions to dismiss the underlying claim but also said it takes "no position on whether the underlying cases are moot in their entirety."

The underlying case challenged the NWP-12 permit for TC Energy's 830,000 b/d Keystone XL pipeline project.

The 9th Circuit was hearing the case after a federal district court judge in Montana in April 2020 vacated the entire NWP-12 program and sent it back to the Army Corps of Engineers while ruling on the Keystone XL case. It also said the Army Corps failed to follow endangered species consultation requirements when it developed the NWP-12 program. The US Supreme Court in July 2020 re-instated the NWP-12 permit while the case was pending but not as it applied to Keystone XL.

The Army Corps issued a revised NWP-12 permit earlier this year with some changes, such as a more exhaustive review of pipelines that are longer than 250 miles (402km).

The NWP-12 approves some types of construction without the need of site-specific review, and in past years general permits have taken 40 days to process as opposed to more than 200 days for site-specific permits.

TC Energy [officially cancelled Keystone

XL](https://direct.argusmedia.com/newsandanalysis/article/2223344) in June after years of regulatory and legal delays. The company had previously suspended construction on the $8bn line after President Joe Biden rescinded a cross-border permit within hours of taking office in January. Biden said that Keystone XL is not in the US national interest because the US and the world "face a climate crisis."

The line would have moved crude from Hardisty, Alberta, to Steele City, Nebraska, where it would have connected with other pipelines to Cushing, Oklahoma, and the southeast Texas coast.

TC Energy is seeking to recover $15bn from the US government, claiming that Biden's revocation of the Keystone cross-border permit breached US obligations under the North American Free Trade Agreement (NAFTA), which was the precursor to US-Mexico-Canada Agreement (USMCA).

By Eunice Bridges