As 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.  On April 27, 2020, the Corps requested that the court stay the effect of its ruling pending the Corps’ appeal to the U.S. Court of Appeals for the Ninth Circuit, and, on May 11, 2020, the District Court narrowed its order to allow continued authorization of maintenance on existing pipelines and construction of certain non-pipeline projects.

While these events have played out in the District Court, the agency defendants have been pursuing an emergency stay from the Ninth Circuit.  On May 28, 2020, the appellate court refused that request in cursory fashion.  While the option of a full appeal remains, industry must continue to wait for any additional relief from the District Court’s order.

Based on the Federal District Court of Montana’s amended order, the Corps may authorize routine maintenance, inspection, and repair dredge and fill activities on existing NWP 12 pipeline projects.  The Corps remains enjoined, however, from authorizing dredge or fill for new oil and gas pipeline construction projects pending completion of the consultation process and compliance with all environmental statutes and regulations.