NWP 12 Comments Letter to the U.S. Army Corps of Engineers
Comments submitted on behalf of the United States Hispanic Business Council, Florida State Hispanic Chamber of Commerce, Texas Association of Business, Hispanic Chamber of E-Commerce, Illinois Hispanic Chamber of Commerce, Utah’s Latinoamerican Chamber of Commerce, Florida Hispanic American Chamber of Commerce Inc., Brazoria County Hispanic Chamber of Commerce, Irving Hispanic Chamber of Commerce and the Statewide Hispanic Chamber of Commerce of New Jersey in response to the United States Army Corps of Engineers’ (Corps) Federal Register publication titled Notice of Virtual Public and Tribal Meetings Regarding the Review of Nationwide Permit 12; Establishment of a Public Docket; Request for Input, 87 Fed. Reg. 17,281 (Mar. 28, 2022), Docket ID No. COE–2022–0003 (Review Notice).
I submit these comments in my role as the President and CEO of the United States Hispanic Business Council (USHBC). We are a 501(c)6 nonprofit organization focusing on improving access to contracting in the public and private sector and fair representation of Hispanics in business, media, and politics.
Energy issues are crucial to USHBC’s mission in three main respects. First, the energy sector is a crucial source of direct and indirect employment and entrepreneurial opportunities for Hispanic-Americans. Right now, there are approximately 30,000,000 employed Hispanics making up 19% of the total 157,000,000 Americans in the workforce. And of the 30,000,000 employed Hispanics, 8,797,393 (30%) are employed in the energy sector and/or a set of directly impacted industries including: Oil, Gas and Other Energies, Agriculture, Construction, Manufacturing and Transportation. Second, higher energy prices operate as an “invisible tax” on all businesses – but they bite particularly hard on small businesses and new business owners. Every dollar spent on fuel, and every dollar lost to higher delivery prices, is a dollar that can’t be invested in our businesses, hiring more people, raising wages for existing employees, or expanding our operations. And third, skyrocketing prices at the pump are the most regressive form of inflation imaginable. Upper-income Americans won’t feel much pain; those who are just starting to build their own American dream will.
We strongly oppose the Corps reopening Nationwide Permit 12 (NWP 12) for review at this time. The nationwide permit is a crucial mechanism for maintaining a robust American energy infrastructure. It ensures that pipeline projects that have only a minimal environmental impact can be approved and carried out quickly, which protects our natural resources while ensuring that we can responsibly and flexibly harness our energy resources. The Corps has no legal obligation to take this step now. It just recently concluded the required five-year review cycle, and in fact it is defending NWP 12 in court.
However, the Corps has now suggested that every material aspect of NWP 12 is back up for review. The questions that the Review Notice poses suggests the Corps may alter the nationwide permit in ways that contradict the entire point of having this kind of categorical pre-approval for projects with minimal impact. The Corps has asked for public input on, among other things, the following: Should the permit be revised to discriminate against new construction as compared to maintenance of existing facilities? Should the permit be revised to discriminate against oil pipelines as compared to gas pipelines?
Should the Corps insert a second round of public notice and comment at the back end, even though the entire point of issuing these nationwide permits as a notice and comment rule in the first place is to avoid unnecessary delays at the individual project stage?
The answer to all of these questions is the same answer that the Corps just reached in January 2021 and which the Department of Justice is currently, and rightly, arguing in court: No. In fact, NWP 12 is fully legal and sufficiently protects the environment. The Clean Water Act specifically allows the Corps to issue this type of general permit where it finds that the activities authorized will have only minimal impacts. The Corps did make that finding little over a year ago, in a thorough and careful rule-making process with full public input. All that has changed over the past year is that our energy security is now much more under threat than ever before – making NWP 12 all the more important, and the Corps’ Review Notice all the more inappropriate, irresponsible, and even harmful.
Russia’s war on Ukraine shines a spotlight on the connection between energy security and national security. Russia has been emboldened to take its egregious actions largely because Europe is dependent on Russian energy. President Biden has rightly rallied the West to reject this energy blackmail, and specifically promised that we will help our European allies find other sources of liquified natural gas and other fuels. At the same time, the sanctions on Russian energy that the West has been compelled to impose have supercharged the pre-existing problems of general inflation, energy-specific inflation, and supply chain disruption.
The answer to these related international and domestic concerns is the same: we must ensure an abundant domestic supply of energy and the infrastructure to deliver it at home and abroad. Nationwide Permit 12 helps do that. This unnecessary Review Notice does the opposite. Anyone who thought they could rely on NWP 12 to plan and carry out needed energy infrastructure projects now has to wonder whether the Corps will pull the rug out from under them. The five-year review cycle that Congress established in the Clean Water Act is a careful balancing of the need for periodic environmental review on the one hand, and the need for certainty in infrastructure development on the other. Short-circuiting the review cycle four years before its time is due distracts from the Corps’ mission and chills needed infrastructure investments.
We understand that President Biden has announced a national policy of reducing our reliance on fossil fuels and increasing our use of renewable energy. This is a worthy goal, and these comments should not be understood to oppose it. But these long-term policies of shifting the balance of our energy sector have to be carefully planned and deliberately executed in a responsible and clear manner. At this moment of crisis, the Review Notice represents the opposite of the needed approach. It is a solution looking for a problem. The Corps should withdraw its Review Notice and make it clear that it will not proceed with review until it is legally required to do so.
Respectfully submitted,
Javier Palomarez
President & CEO, United States Hispanic Business Council