Center for Biological Diversity v. Spellmon

The federal district court for the District of Montana transferred to the district court for the District of Columbia a lawsuit challenging the Trump administration’s reissuance in early 2021of Nationwide Permit (NWP) 12 (which covers certain activities associated with oil and gas pipelines). The case presented the question of whether the federal defendants had rectified a lack of compliance with the Endangered Species Act (ESA) that the Montana district court identified in an earlier case. In the earlier case, the plaintiffs challenged the 2017 issuance of NWP 12, which would have permitted the Keystone XL pipeline, a project that the court said “posed a potential impact to ESA species in the State of Montana.” In the instant case, the court said the plaintiffs identified only one project that purported to use NWP 12 and that allegedly harmed their interests, but that the plaintiffs had identified no ESA-protected species or critical habitat in the area of that project. The court therefore found that no substantial parts of the events or omissions giving rise to the ESA claim had occurred in the District of Montana. The court further found that the only plaintiff that resided in Montana lacked standing to bring an ESA claim.

Center for Biological Diversity and four other environmental groups filed a lawsuit in the federal district court for the District of Montana challenging the 2021 reissuance of Nationwide Permit (NWP) 12, a general permit covering oil and gas pipeline projects under Section 404(e) of the Clean Water Act. The groups alleged that the U.S. Army Corps of Engineers did not comply with the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, or the Administrative Procedure Act, including because the Corps failed to adequately evaluate pipeline projects’ contribution to climate change. In particular, the groups alleged that the Corps failed to consider potential increased greenhouse gas emissions caused by pipeline construction and lifecycle emissions associated with oil and gas transported by pipeline projects. The court previously ruled that the 2017 issuance of NWP 12 violated the Endangered Species Act because the Corps failed to undertake Section 7 consultation. In the appeal of that earlier series of decisions, the Corps and other federal appellants have asked the Ninth Circuit to vacate the district court’s decisions because the case is now moot due to the reissuance of NWP 12 and President Biden’s revocation of the presidential permit for the Keystone XL pipeline—the focal point of the earlier litigation. Keystone XL was authorized under the 2017 NWP 12.