Northern Plains Resource Council v. U.S. Army Corps of Engineers

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On July 6, 2020, the U.S. Supreme Court stayed a district court’s order that enjoined the authorization of all new oil and gas pipelines under Nationwide Permit (NWP) 12 due to a failure to comply with the consultation requirements of the Endangered Species Act. The injunction remains in place for the Keystone XL pipeline.

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Because the U.S. Army Corps of Engineers had issued a new nationwide permit (NWP) superseding NWP 12, the Ninth Circuit Court of Appeals dismissed, for lack of jurisdiction, appeals of a district court ruling that NWP 12’s issuance did not comply with Endangered Species Act consultation requirements and that the Corps could not rely on NWP 12 to authorize the Keystone XL pipeline. The Ninth Circuit said the new issuance of NWP 12 rendered the appeals moot and ordered the district court to dismiss the underlying claim. The Ninth Circuit declined, however, to take a position on whether the underlying cases were moot in their entirety and also declined to vacate any district court decisions. The federal district court for the District of Montana is to consider these issues on remand.

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In an appeal in the case challenging the U.S. Army Corps of Engineers’ reliance on the 2017 Nationwide Permit (NWP) 12 to authorize the Keystone XL project, the project’s developers told the Ninth Circuit that the termination of the project made the challenge of the application of NWP 12 to Keystone XL moot.