Schirra talks options for project developers upended by nationwide permit voidance

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On April 15, 2020, the U.S. District Court for the District of Montana issued an order with potentially broad-sweeping implications for energy-related projects across the country. As a result, according to Law360, “[a]ttorneys are scrambling to find creative solutions and salvage time-sensitive projects” to “get pipelines, renewable energy projects and other major infrastructure off the ground.”

Can projects move forward without Nationwide Permit 12, the permit is used by the U.S. Army Corps of Engineers to streamline approval of infrastructure projects? In “Project Developers Pivot After Nationwide Permit Upended,” lawyers weigh in on what is referred to as the million-dollar (or billion-dollar) question.

Bricker environmental attorney Christy Rideout Schirra says that she is coaching her clients on deciding whether to forgo the quick permit process in favor of seeking a Clean Water Act Section 404 permit, which is a more intense path to take. “Applicants for an individual permit under Section 404 will be faced with having to spend more money and time on their application. They’ve also got to submit to a public notice and comment period, which can spawn appeals if interested parties disagree with the Corps' decision.” For this reason, Schirra states, “[a] lot of subjects don't see that as a great solution."

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