Twelve AGs Filed Amicus Brief in Support of Challenge to Nationwide Permit 12 Reauthorization

DECEMBER 22, 2020

California Attorney General Xavier Becerra led a coalition of 12 attorneys general in filing an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to uphold a district court’s vacatur of Nationwide Permit 12, which the U.S. Army Corps of Engineers improperly reauthorized in 2017 without engaging in Endangered Species Act (ESA)-mandated consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Nationwide Permit 12 relies on programmatic consultation between the Army Corps and the Services to prevent harm to endangered and threatened species while allowing qualifying infrastructure projects—roughly 14,000 annually, including many oil and gas pipelines—to proceed without obtaining project-specific Clean Water Act permits, which would require project-specific ESA consultation. In their amicus brief, the AGs noted that in attempting to justify the reauthorization, the Army Corps argued that “because it will be consulting with the Services on individual projects where warranted, it need not consult with the Services regarding the reissuance of NWP 12 as a whole.” The AGs warned that this argument is “not only illegal but illogical” and “belied by the Corps’s 10-year history of compliance with the ESA’s programmatic consultation requirement.” The AGs emphasized that the Endangered Species Act “does not permit an ‘incremental-step’ consultation approach as a substitute for consultation on the overall agency action,” and warned that allowing such an approach would “essentially [read] the requirement of programmatic consultation out of the regulations.”