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

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On May 11, 2020, the district court modified its injunction to apply only to new oil and gas pipeline construction, which the court said was the type of project likely to pose the greatest threat to listed species. The May 11 order also denied motions for partial stay pending appeal.

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On April 27, the defendants moved for a stay pending appeal of the portion of the court’s order that vacated NWP 12 or at least a stay of vacatur to the extent the order related to projects other than the Keystone XL Pipeline.

In a lawsuit challenging both the reissuance of Nationwide Permit (NWP) 12—which authorizes discharges of dredged or fill material associated with utility lines—and also the NWP 12’s application to the Keystone XL Pipeline, the federal district court for the District of Montana vacated NWP 12 pending completion of the consultation process under the Endangered Species Act. The court found that there was “resounding evidence” in the record that authorized discharges may affect endangered and threatened species and critical habitat and that the U.S. Army Corps of Engineers could not circumvent consultation requirements by relying either on project-level review or on a General Condition in NWP 12 that required non-federal permittees to submit a preconstruction notification to the Corps if a permittee believed an activity might affect listed species or critical habitat. The court said that having remanded to the Corps for consultation under the Endangered Species Act, it was not necessary to determine whether the Corps “made a fully informed and well-considered decision” under NEPA and the Clean Water Act. The court therefore did not address the plaintiffs’ arguments under those statutes, including the argument that the Corps should have considered indirect and cumulative effects of authorized projects’ lifecycle greenhouse gas emissions. The court said it anticipated that the Corps would conduct additional environmental analyses based on the consultation findings.

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The federal district court for the District of Montana granted plaintiffs’ motion to supplement the administrative record in a lawsuit challenging U.S Army Corps of Engineers (Corps) approval of the Keystone XL pipeline project under the reissued Nationwide Permit 12 (NWP 12) for pipeline and utility projects. The plaintiffs assert, among other arguments, that the environmental review for NWP 12 failed consider climate impacts. The court noted that the administrative record currently documented the Corps’ decision to reissue NWP 12 in 2017. The court said it would consider eight additional documents concerning applications and authorizations specifically for the Keystone XL pipeline under the reissued NWP 12 “for the limited purpose of understanding whether the Corps considered all relevant factors and complied with the [Administrative Procedure Act]’s requirement that an agency’s decision be neither arbitrary or capricious.” The court also agreed to consider a 2012 biological opinion for a prior version of NWP 12 for the limited purpose of considering whether the Corps failed to conduct programmatic consultation in connection with reissuance of NWP 12 in violation of the Endangered Species Act. The court said it would not use any of the documents “to judge the wisdom of the Corps’ actions or to question the Corps’ scientific analyses or conclusions.”

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The plaintiffs filed a motion for partial summary judgment on their claims that reissuance of Nationwide Permit 12 and its application to Keystone XL violated the National Environmental Policy Act (NEPA), the Clean Water Act, and the Endangered Species Act. Under NEPA, the plaintiffs argued that the U.S. Army Corps of Engineers failed to evaluate the indirect and cumulative effects of lifecycle greenhouse gas emissions caused by projects authorized under Nationwide Permit 12. Under the Endangered Species Act, the plaintiffs asserted that programmatic consultation was required because reissuance of Nationwide Permit 12 was clearly an agency “action” that “may affect” and “is likely to adversely affect” listed species and critical habitat due in part to the permit’s authorization of activities that cause indirect impacts associated with climate change.

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The federal district court for the District of Montana allowed the State of Montana and five trade groups to intervene in a lawsuit challenging the U.S. Army Corps of Engineers’ reissuance of Nationwide Permit 12 and the Corps’ application of Nationwide Permit 12 to authorize the Keystone XL pipeline. The court found that Montana and the trade groups were not entitled to intervention as of right but allowed them to intervene permissively on a limited basis since their defenses shared a common issue of law or fact—their “significant interest” in defending the legality of Nationwide Permit 12’s streamlined process for pipelines and other utility projects.

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