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.