Army Corps of Engineers Says Decisions in Lawsuit Against 2017 NWP Permit Are Moot

The U.S. Army Corps of Engineers asked the Ninth Circuit on Tuesday to vacate decisions in a lawsuit regarding the 2017 version of Nationwide Permit 12 (NWP 12) purporting that the case, and its appeals, are moot now because the Keystone XL pipeline was cancelled. 

NWP-12 is a general permit for utility lines that is re-issued after a few years.  It allows for pipelines to be built over areas of water. Approval through the NWP 12 permit is simpler than approving a new project where the pipeline would cross water through the normal methods, which environmental groups alleged breaches federal environmental laws. 

The Corps, defendants and appellants in the lawsuit, explained that the “Plaintiffs expressly and repeatedly sought injunctive relief and vacatur directed only at Keystone XL— seeking vacatur of NWP 12 as applied to verifications that proposed Keystone XL crossings comported with NWP 12.  The district court nevertheless vacated NWP 12 and enjoined its use for all new oil and gas pipelines across the country.” 

They alleged that this was overbroad, and appealed the decision made in the district court, however, the Corps said that this is now moot, especially as the Supreme Court stayed the District Court’s injunction and vacatur on pipelines which were not Keystone XL. President Biden on the first day of his presidency cancelled the permit for the Keystone XL pipeline and halted all construction, leading to this motion. 

Additionally, the Corps alleged that because the 2017 NWP 12 at issue in this case was superseded by another NWP 12 permit, the 2021 NWP 12. Because of this, the 2017 NWP 12 could not be used to approve proposed water crossings for pipes outside of the court’s vacatur.

“These appeals are thus no longer justiciable,” the motion explained. “And even if an Article III controversy continued to exist, the appeals are at least prudently moot. The Court should vacate the district court’s orders as moot and remand with instructions to dismiss the case.” 

The plaintiffs in the case, Northern Plains Resource Council, Bold Alliance, Natural Resources Defense Council, Sierra Club, Center for Biological Diversity, and Friends of the Earth, filed the operative amended complaint challenging the permit in September 2019 claiming that the permit violated various federal laws by allowing pipeline to cross water without the required consideration of endangered species and environmental effects. 

The plaintiffs are represented by some of their own lawyers along with Bechtold Law Firm.

The 2021 NWP 12 was the subject of a separate lawsuit in the Montana District Court on Monday, filed by environmental groups who asked for relief and for the permit to be vacated.