On July 6, 2020, the U.S. Supreme Court issued an Order partially granting a motion to stay a Montana District Court’s injunction barring the use of the Army Corps’ streamlined Nationwide Permit 12 (NWP 12) governing pipeline and other utility construction activities that impact a water of the United States regulated under the Clean Water Act. The District Court held that the Army Corps failed to engage in programmatic consultation with federal wildlife agencies before issuing NWP 12 in 2017, as required under the Endangered Species Act. After initially ordering a complete vacatur of NWP 12, the District Court narrowed its order on May 11, 2020, to an injunction prohibiting the use of NWP 12 for new pipeline projects.
The Army Corps and industry appealed the District Court’s decision to the U.S. Court of Appeals for the Ninth Circuit. The Army Corps also filed an application to the U.S. Supreme Court requesting that the Court stay the District Court’s injunction pending the outcome of the appeal in the Ninth Circuit. The Supreme Court stayed the District Court’s order, except as it applies to the Keystone XL pipeline project.
A side note regarding the appeal in the Ninth Circuit: On May 15, 2020, a coalition of 18 states, including Ohio, filed an amicus brief with the Ninth Circuit in support of the Army Corps and industry-Appellants’ case. The States argue that the District Court’s decision is flawed and, if upheld, that needed infrastructure projects will be significantly more costly and time-consuming, and potentially unfeasible.