Endangered Species Law & Policy

On August 11, 2021, the U.S. Court of Appeals for the Ninth Circuit granted partial vacatur of an appeal brought by the U.S. Army Corps of Engineers (Corps) challenging a district court decision to vacate and enjoin use of the 2017 version of nationwide permit 12 (NWP 12).

The underlying lawsuit was brought by Northern Plains Resource Council against the Corps over the Corps’ authorization of impacts to waters of the United States under NWP 12 in connection with the Keystone XL pipeline. In April 2020, the U.S. District Court for the District of Montana vacated NWP 12 throughout the United States on the basis that the Corps had failed to conduct a nationwide or programmatic Endangered Species Act (ESA) section 7 consultation on the effects of NWP 12 on listed species and critical habitat, and remanded NWP 12 back to the agency to complete ESA section 7 consultation. The court further enjoined the Corps from authorizing any dredge or fill activities under NWP 12 until consultation was complete. Later, the court modified its ruling, permitting use of NWP 12 for essentially all kinds of transmission projects other than those for oil and gas pipelines (Amended Order).

The Corps, the developer of the Keystone XL pipeline, and a group of industry intervenors appealed the ruling to the Ninth Circuit. The Corps later filed a request with the Supreme Court for a stay of the district court’s Amended Order. The Supreme Court granted a partial stay, effectively reinstating NWP 12 for all oil and gas pipeline projects except Keystone XL. The Corps then asked the Ninth Circuit to vacate the district court decision, arguing the issue was now moot since the Corps re-issued NWP 12 in 2021.

In granting partial vacatur, the Ninth Circuit indicated the claim before it (the interlocutory appeals and underlying claim relative to the pipeline) was moot, but left to the district court the question of whether the case was moot in its entirety. The Ninth Circuit also declined to vacate any district court decisions and directed the district court to consider whether the Corps is entitled to vacatur.

It is worth noting that a separate case has been filed challenging the Corps’ issuance of the 2021 version of NWP 12. This new challenge is again predicated on an alleged failure to consult in violation of ESA section 7.