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

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.

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The U.S. Army Corps of Engineers and other federal appellants asked the Ninth Circuit to vacate the district court’s decisions because the case is now moot due to the reissuance of Nationwide Permit 12 and President Biden’s revocation of the presidential permit for the Keystone XL pipeline.

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The Ninth Circuit Court of Appeals denied emergency motions for partial stay pending appeal of the District of Montana’s orders vacating Nationwide Permit (NWP) 12 as it applies to Keystone XL Pipeline and other oil and natural gas pipelines. The Ninth Circuit found that the appellants—the Corps, the pipeline developers, and trade groups—had not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm.

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