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Environmental Groups Oppose Federal Defendant’s Mootness Argument in 9th Circuit Permit Lawsuit

Three pipelines against a sky background.

Three pipeline reflecting blue sky.

Other parties involved in a Ninth Circuit lawsuit regarding the 2017 Nationwide Permit 12 (NWP 12), which allows for pipelines to be built over areas with water in some instances without a specific permit for the project, responded to a request by the U.S. Army Corps of Engineers on May 4 to vacate the previous decisions in the lawsuit and the appeal to the Ninth Circuit. 

In its motion to vacate the lawsuit, the Corps, one of the defendants, argued that the case and the appeals in the case are moot because of the Biden Administration’s cancellation of permits for the Keystone XL pipeline, which the permit was going to be used for, and the 2021 NWP 12 which would supersede the permit at issue in this case, which was filed by environmental organizations seeking to cancel the permit. 

The environmental groups who filed the lawsuit argued in their response that the discussion of mootness and vacatur should be remanded to the district court. The plaintiffs argued that the district court had correctly determined that the Endangered Species Act required a consultation with wildlife agencies before the 2017 NWP 12 was issued. They cited that the permit is used “approximately 14,000 times per year to discharge dredged and fill material into our nation’s rivers, streams, and wetlands for the construction of pipelines and other utility lines,” and that consultation is needed because the activities may affect endangered species. 

In their response to the motion, the plaintiffs further cited that the federal defendants and other intervenors had not gotten a stay of the district court ruling or had the matter remanded. They claimed that the motion ignored the declaratory relief it was granted by the district court and that there are still important factual questions at issue. The plaintiffs did say that the district court should vacate some of the court’s orders where the relief was disclaimed on appeal. 

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

Various energy companies and organizations who intervened in the lawsuit, including the American Gas Association and American Petroleum Institute supported the motion to vacate the decisions and orders, claiming that it would be following previous practice and is warranted, They said that courts previously held that because government actions mooted the case, vacator would protect the rights of intervenors. These companies are represented by Hunton Andrews Kurth LLP

Montana, another intervener represented by the Montana Attorney General, also agreed with the Corps that the appeals and cases are now moot, and that the decisions should be vacated and the cases remanded and dismissed. They cited that the ESA concerns cited by the plaintiffs were specific to the Keystone XL Pipeline. 

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