On July 6, 2020, the Supreme Court partially and temporarily overturned a nationwide injunction that prevented the U.S. Army Corps of Engineers (“Corps”) from using Nationwide Permit 12 (“NWP 12”) for construction of new oil and gas pipelines. NWP 12 authorizes “utility line activities” that have minimal impacts on jurisdictional waters under the Clean Water Act. In April 2020, a federal judge in the District of Montana, while considering challenges to the construction of the Keystone XL pipeline, completely vacated the Corps’ use of NWP 12 for all activities (including pipelines, broadband, electric, water, and sewer) until the Corps consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to the Endangered Species Act. Nearly a month later, following a motion from the Corps seeking relief from that vacatur, the district court amended its April 2020 ruling to apply only to new oil and gas pipeline construction projects other than “maintenance, inspection, and repair activities” on existing pipelines.

In an effort to further limit the continuing broad scope of the district court’s amended order, the Corps sought emergency relief from the United States Court of Appeals for the Ninth Circuit in May 2020. After the Ninth Circuit denied that request, the Corps requested emergency relief from the Supreme Court of the United States. Without any substantive discussion, the Supreme Court partially granted the Corps’ request for emergency relief. The Supreme Court’s order effectively limits the scope of the federal district court’s injunction to the construction of the Keystone XL pipeline. Under the Supreme Court’s order, the Corps will now be able to authorize minimal dredge or fill activities associated with both existing pipelines and new oil and gas pipeline construction projects under NWP 12 while the federal district court’s injunction is appealed and ruled on by the Ninth Circuit.

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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.

Photo of Mandi Moroz Mandi Moroz

Mandi’s practice focuses on assisting clients at all stages of environmental representation, including litigation, regulatory, and transactional matters. She has experience working with clients involved in toxic tort, nuisance, and asbestos litigation. In addition to her litigation experience, she has a breadth of…

Mandi’s practice focuses on assisting clients at all stages of environmental representation, including litigation, regulatory, and transactional matters. She has experience working with clients involved in toxic tort, nuisance, and asbestos litigation. In addition to her litigation experience, she has a breadth of experience working to advise clients on a variety of regulatory needs ranging from potential CERCLA liability in the acquisition of a property to potential violations of federal pipeline safety laws.