As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (“Corps”) Nationwide Permit (“NWP 12”) on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. The court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of projects that are unrelated to the project at issue in that case, the Keystone XL Pipeline.  Yesterday, the Corps requested that the court stay the effect of its ruling pending the Corps’ appeal to the Ninth Circuit. The Corps requested in the alternative that the court stay its ruling with respect to all projects across the country, except the Keystone XL Pipeline.

The Corps argues that the plaintiff-environmental groups never requested a nationwide vacatur of NWP 12 and, as such, the court was not presented information on the merits or impacts of such a broad remedy. The Corps noted that the court had “enjoined thousands of projects undertaken across the country to provide needed and important services to innumerable segments of the public,” and that the proponents of those projects and the members of the public they serve were not parties to the case. According to the Corps, the “extraordinary and immediate implications” of the order warrants its suspension.

The Corps seek an expedited briefing schedule on its motion to suspend the order during the pendency of the Corps’ appeal to the Ninth Circuit, noting that the U.S. Solicitor General had authorized the appeal. The Corps propose the following briefing schedule, which has not yet been approved by the court:

  • April 29: Memoranda in support;
  • May 6: Memoranda in opposition; and
  • May 8: Any reply by the parties in support.

If the court does not provide a decision by May 11, the Corps intends to appeal the decision on the next day to the Ninth Circuit and seek a similar suspension. In the agency’s filings with the court, the Corps notes that the environmental groups involved in the lawsuit oppose the agency’s request, as well as the expedited briefing schedule. If the court’s decision is not suspended, it could adversely impact oil and gas projects across the country, including projects to maintain and repair existing infrastructure for these critical services.

Print:
EmailTweetLikeLinkedIn
Photo of Catherine D. Little Catherine D. Little

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and…

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and administrative adjudication under the Pipeline Safety Act, Natural Gas Act, Clean Water Act (including wetlands), Oil Pollution Act and National Environmental Policy Act. Her team has sought appellate review for enforcement matters with favorable results and works closely with industry and regulators alike to obtain favorable results for their clients. Catherine also regularly counsels clients with respect to pipeline construction and design issues, permitting, confidential investigations, spill and release reporting and response.

Photo of Annie M. Cook Annie M. Cook

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean…

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean Water Act, the Oil Pollution Act, National Environment Policy Act, TCSA, and related state and local laws.  Her team also represents clients regarding related transportation security issues and in responding to inquiries and investigations from the Department of Transportation’s Office of Inspector General.. Annie’s clients include owners and operators of oil and natural gas pipeline and related storage, terminal, and LNG facilities as well as other energy industry stakeholders.