Description: Challenge to U.S Army Corps of Engineers approval of Keystone XL pipeline project under the reissued Nationwide Permit 12 for pipeline and utility projects.
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Northern Plains Resource Council v. U.S. Army Corps of Engineers
Case Documents:
Filing Date Type File Action Taken Summary 07/15/2022 Order Download Defendants’ motion to vacate the court’s April 15, 2020 and May 11, 2020 decisions and order denied. 05/09/2022 Motion Download Brief filed in support of federal defendants' motion to vacate. 05/09/2022 Response Download Response filed by NWP 12 Coalition in support of federal defendants' motion to vacate April 15, 2020 and May 11, 2020 decisions and order. 04/29/2022 Memorandum Download Memorandum filed in support of United States' motion to vacate April 15, 2020 and May 11, 2020 decisions and order. 04/29/2022 Motion Download Motion filed by United States to vacate April 15, 2020 and May 11, 2020 decisions and order. 02/22/2022 Status Report Download Status report filed. 05/18/2020 Notice of Appeal Download Notice of appeal filed by State of Montana. 05/13/2020 Notice of Appeal Download Notice of appeal filed by federal defendants. 05/13/2020 Notice of Appeal Download Notice of appeal filed by trade groups. 05/13/2020 Notice of Appeal Download Notice of appeal filed by defendant-intervenors TransCanada Keystone Pipeline, LP and TC Energy Corporation. 05/11/2020 Order Download Orders filed amending summary judgment order and denying motions for stay pending appeal. On May 11, 2020, the district court modified its injunction to apply only to new oil and gas pipeline construction, which the court said was the type of project likely to pose the greatest threat to listed species. The May 11 order also denied motions for partial stay pending appeal. 05/08/2020 Reply Download Reply filed by federal defendants in support of partial stay pending appeal. 05/08/2020 Reply Download Reply filed in support of motion for stay by TransCanada Keystone Pipeline, LP and TC Energy Corporation. 05/08/2020 Reply Download Reply filed by trade groups in support of federal defendants' motion for partial stay pending appeal. 05/07/2020 Amicus Brief Download Brief filed by Essential Infrastructure Coalition as amicus curiae. 05/06/2020 Opposition Download Opposition filed by plaintiffs to motions for stay pending appeal. 04/29/2020 Brief Download Brief filed by Montana in support of federal defendants' motion for partial stay pending appeal. 04/29/2020 Memorandum Download Memorandum filed by NWP 12 Coalition in support of federal defendants' motion for partial stay pending appeal. 04/29/2020 Memorandum Download Memorandum filed in support of motion for stay pending appeal by TransCanada Keystone Pipeline, LP and TC Energy Corporation. 04/29/2020 Motion Download Motion for partial stay pending appeal filed by TransCanada Keystone Pipeline, LP and TC Energy Corporation. 04/28/2020 Order Download Request for administrative stay denied and motion for expedited briefing on stay motion granted. 04/27/2020 Motion Download Motion for partial stay pending appeal filed by federal defendants. On April 27, the defendants moved for a stay pending appeal of the portion of the court’s order that vacated NWP 12 or at least a stay of vacatur to the extent the order related to projects other than the Keystone XL Pipeline. 04/15/2020 Order Download Nationwide Permit (NWP) 12 vacated pending completion of the consultation process and compliance with all environmental statutes and regulations and Corps enjoined from authoring any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations. Montana Federal Court Vacated Nationwide Permit Due to Corps of Engineers Failure to Initiate Consultation Under Endangered Species Act. In a lawsuit challenging both the reissuance of Nationwide Permit (NWP) 12—which authorizes discharges of dredged or fill material associated with utility lines—and also the NWP 12’s application to the Keystone XL Pipeline, the federal district court for the District of Montana vacated NWP 12 pending completion of the consultation process under the Endangered Species Act. The court found that there was “resounding evidence” in the record that authorized discharges may affect endangered and threatened species and critical habitat and that the U.S. Army Corps of Engineers could not circumvent consultation requirements by relying either on project-level review or on a General Condition in NWP 12 that required non-federal permittees to submit a preconstruction notification to the Corps if a permittee believed an activity might affect listed species or critical habitat. The court said that having remanded to the Corps for consultation under the Endangered Species Act, it was not necessary to determine whether the Corps “made a fully informed and well-considered decision” under NEPA and the Clean Water Act. The court therefore did not address the plaintiffs’ arguments under those statutes, including the argument that the Corps should have considered indirect and cumulative effects of authorized projects’ lifecycle greenhouse gas emissions. The court said it anticipated that the Corps would conduct additional environmental analyses based on the consultation findings. 02/24/2020 Amicus Motion Download Motion for leave to file an amicus brief filed by Montana trade groups. 02/19/2020 Reply Download Reply filed in support of motion for summary judgment by TransCanada Keystone Pipeline, LP and TC Energy Corporation. 02/19/2020 Reply Download Reply filed by NWP 12 Coalition in support of federal defendants' cross-motion for partial summary judgment. 02/18/2020 Reply Download Reply filed by Montana in support of federal defendants' cross-motion for summary judgment. 02/14/2020 Reply Download Reply filed by federal defendants in support of cross-motion for summary judgment. 01/29/2020 Reply Download Plaintiffs filed reply in support of motion for partial summary judgment and opposition to defendants' cross-motions for partial summary judgment. 01/24/2020 Amicus Brief Download Brief filed by amici curiae Edison Electric Institute, Utility Water Act Group, and International Brotherhood of Electrical Workers. 01/14/2020 Status Report Download Amended status report filed by TransCanada Keystone Pipeline, LP and TC Energy Corporation. 01/08/2020 Order Download Plaintiffs' motion to supplement the administrative record granted. Montana Federal Court Agreed to Consider Keystone XL-Specific Documents and 2012 Biological Opinion in Challenge to Authorization Under Nationwide Permit. The federal district court for the District of Montana granted plaintiffs’ motion to supplement the administrative record in a lawsuit challenging U.S Army Corps of Engineers (Corps) approval of the Keystone XL pipeline project under the reissued Nationwide Permit 12 (NWP 12) for pipeline and utility projects. The plaintiffs assert, among other arguments, that the environmental review for NWP 12 failed consider climate impacts. The court noted that the administrative record currently documented the Corps’ decision to reissue NWP 12 in 2017. The court said it would consider eight additional documents concerning applications and authorizations specifically for the Keystone XL pipeline under the reissued NWP 12 “for the limited purpose of understanding whether the Corps considered all relevant factors and complied with the [Administrative Procedure Act]’s requirement that an agency’s decision be neither arbitrary or capricious.” The court also agreed to consider a 2012 biological opinion for a prior version of NWP 12 for the limited purpose of considering whether the Corps failed to conduct programmatic consultation in connection with reissuance of NWP 12 in violation of the Endangered Species Act. The court said it would not use any of the documents “to judge the wisdom of the Corps’ actions or to question the Corps’ scientific analyses or conclusions.” 01/06/2020 Order Download Amicus motion and motion for leave to join amicus motion granted. 12/30/2019 Brief Download Brief filed by State of Montana in support of federal defendants' cross-motion for summary judgment. 12/30/2019 Memorandum Download Memorandum filed by NWP 12 Coalition in support of the federal defendants' cross-motion for partial summary judgment. 12/23/2019 Memorandum Download Memorandum filed by federal defendants in opposition to plaintiffs' motion for partial summary judgment and in support of cross-motion. 12/23/2019 Memorandum Download Memorandum filed in support of motion for summary judgment by TransCanada Keystone Pipeline, LP and TC Energy Corporation. 12/23/2019 Opposition Download Opposition filed by federal defendants to plaintiffs' motion to supplement the administrative record. 12/13/2019 Opposition Download Opposition filed by plaintiffs to motion for leave to file an amicus brief. 12/06/2019 Amicus Motion Download Motion filed by International Brotherhood of Electrical Workers to join in amicus motion by Edison Electric Institute and Utility Water Act Group. 12/03/2019 Amicus Motion Download Motion for leave to file amicus brief in support of defendants and defendant-intervenors filed by Edison Electric Institute and Utility Water Act Group. 11/22/2019 Memorandum Download Memorandum filed by plaintiffs in support of motion to supplement the administrative record. 11/22/2019 Memorandum Download Memorandum filed by plaintiffs in support of motion for partial summary judgment. 11/22/2019 Motion for Summary Judgment Download Motion for partial summary judgment filed by plaintiffs. Plaintiffs Moved for Summary Judgment. The plaintiffs filed a motion for partial summary judgment on their claims that reissuance of Nationwide Permit 12 and its application to Keystone XL violated the National Environmental Policy Act (NEPA), the Clean Water Act, and the Endangered Species Act. Under NEPA, the plaintiffs argued that the U.S. Army Corps of Engineers failed to evaluate the indirect and cumulative effects of lifecycle greenhouse gas emissions caused by projects authorized under Nationwide Permit 12. Under the Endangered Species Act, the plaintiffs asserted that programmatic consultation was required because reissuance of Nationwide Permit 12 was clearly an agency “action” that “may affect” and “is likely to adversely affect” listed species and critical habitat due in part to the permit’s authorization of activities that cause indirect impacts associated with climate change. 11/07/2019 Order Download Motions to intervene granted. Montana and Trade Groups Allowed to Intervene in Challenge to Nationwide Permit that Authorized Keystone XL. The federal district court for the District of Montana allowed the State of Montana and five trade groups to intervene in a lawsuit challenging the U.S. Army Corps of Engineers’ reissuance of Nationwide Permit 12 and the Corps’ application of Nationwide Permit 12 to authorize the Keystone XL pipeline. The court found that Montana and the trade groups were not entitled to intervention as of right but allowed them to intervene permissively on a limited basis since their defenses shared a common issue of law or fact—their “significant interest” in defending the legality of Nationwide Permit 12’s streamlined process for pipelines and other utility projects. 10/29/2019 Opposition Download Opposition filed by plaintiffs to motion to intervene by American Gas Association et al. 10/15/2019 Motion to Intervene Download Motion to intervene filed by American Gas Association, American Petroleum Institute, Association of Oil Pipe Lines, Interstate Natural Gas Association of America, and National Rural Electric Cooperative Association. 07/16/2019 Motion to Intervene Download Unopposed motion filed by TransCanada Keystone Pipeline, LP and TC Energy Corporation to intervene in support of defendants. 07/01/2019 Complaint Download Complaint filed. Environmental Groups Challenged Corps of Engineers Approval for Keystone XL Pipeline. On July 1, 2019, environmental and conservation groups filed a lawsuit in the District of Montana challenging the U.S. Army Corps of Engineers approval of the Keystone XL pipeline project using Nationwide Permit 12, a general permit issued for pipelines and other utility projects. -
U.S. Army Corps of Engineers v. Northern Plains Resource Council
Case Documents:
Filing Date Type File Action Taken Summary 07/06/2020 Order Application for stay granted in part. Supreme Court Stayed Nationwide Injunction on New Oil and Gas Pipelines, But Left Injunction in Place for Keystone. On July 6, 2020, the U.S. Supreme Court stayed a district court’s order that enjoined the authorization of all new oil and gas pipelines under Nationwide Permit (NWP) 12 due to a failure to comply with the consultation requirements of the Endangered Species Act. The injunction remains in place for the Keystone XL pipeline. 07/02/2020 Reply Download Reply filed in support of application for stay pending appeal. 06/29/2020 Amicus Motion Download Motion for leave to file amicus brief and brief filed by NextEra Energy, Inc. 06/29/2020 Opposition Download Opposition filed to application for stay pending appeal. 06/23/2020 Amicus Motion Download Motion for leave to file amicus brief and brief filed by West Virginia, Texas, and 16 other states. 06/17/2020 Brief Download Brief filed by respondents TC Energy Corporation and TransCanada Keystone Pipeline LP in support of application for stay pending appeal. 06/17/2020 Brief Download Brief filed by trade group respondents in support of application for stay pending appeal. 06/15/2020 Application Download Application for stay pending appeal submitted. Corps of Engineers Asked Supreme Court to Stay Halt on New Oil and Gas Pipelines. The U.S. Army Corps of Engineers submitted an application to Justice Kagan for stay pending appeal of a district court order that enjoined the authorization of new oil and gas pipelines under Nationwide Permit (NWP) 12 due to a failure to comply with the consultation requirements of the Endangered Species Act. The Ninth Circuit denied motions to stay in late May. The Corps argued to the Supreme Court that the district court “had no warrant” to set aside NWP 12 for the Keystone XL pipeline project, “let alone for the construction of all new oil and gas pipelines anywhere in the country.” The Corps contended that nationwide equitable relief was improper, that the order was issued without fair notice, and that the order lacked any sound basis in the Endangered Species Act. -
Northern Plains Resource Council v. U.S. Army Corps of Engineers
Case Documents:
Filing Date Type File Action Taken Summary 08/11/2021 Order Download Appeals dismissed for lack of jurisdiction. Ninth Circuit Said Appeals in Keystone XL Nationwide Permit Case Were Moot. 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. 07/02/2021 Reply Download Reply filed in support of federal appellants' motion to vacate decisions below. 06/25/2021 Letter Download TranCanada Keystone Pipeline, LP and TC Energy Corporation filed letter regarding termination of the Keystone XL project. 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. 05/28/2021 Response Download Response to motion to vacate decisions below filed by plaintiffs. 05/28/2021 Response Download Response to motion to vacate filed by Montana. 05/28/2021 Response Download Response filed by trade groups in support of federal appellants' motion to vacate decisions below. 05/04/2021 Motion Download Motion filed by federal appellants to vacate decisions below. 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. 04/08/2021 Notice Download Supplemental notice concerning recent development potentially affecting appeals filed by federal defendants-appellants. 02/25/2021 Reply Download Reply brief filed by State of Montana. 02/25/2021 Reply Download Reply brief filed by appellant trade groups. 02/25/2021 Reply Download Reply brief filed by appellants TC Energy Corporation and TransCanada Keystone Pipeline LP. 01/15/2021 Reply Download Reply brief filed by federal appellants. 12/22/2020 Amicus Brief Download Brief filed by amici curiae states in support of plaintiffs-appellees and affirmance. 12/22/2020 Amicus Motion Download Motion filed by conservation groups for leave to file brief as amici curiae supporting appellees and affirmance. 12/15/2020 Brief Download Answering brief filed by plaintiffs. 09/23/2020 Amicus Brief Download Brief filed by amici states West Virginia, Texas, and 15 other states in support of defendants-appellants and supporting reversal. 09/23/2020 Amicus Motion Download Motion filed by Edison Electric Institute et al. for leave to file brief as amici curiae in support of defendants-appellants. 09/23/2020 Amicus Motion Download Motion filed for leave to file brief for amici curiae The Essential Infrastructure Coalition supporting appellants and reversal. 09/23/2020 Amicus Motion Download Motion filed by American Fuel & Petrochemical Manufacturers and American Chemistry Council for leave to file brief as amici curiae. 09/16/2020 Brief Download Opening brief filed by State of Montana. 09/16/2020 Brief Download Brief filed by appellants TC Energy Corporation and TransCanada Keystone Pipeline LP. 09/16/2020 Brief Download Opening brief filed by trade group appellants. 08/26/2020 Brief Download Opening brief filed by federal appellants. 05/28/2020 Order Download Motions for partial stay denied. Ninth Circuit Declined to Stay Orders Enjoining Authorization of New Oil and Gas Pipelines Under Nationwide Permit. 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. 05/20/2020 Opposition Download Opposition filed by plaintiffs to federal appellants' and intervenor appellants' motions for stay pending appeal. 05/14/2020 Opposition Download Opposition filed to federal appellants' motion for leave to file an over-length emergency stay motion, request for immediate administrative stay, and proposed briefing schedule. 05/14/2020 Order Download Request for an immediate administrative stay denied. 05/13/2020 Motion Download Motion for stay pending appeal, including request for immediate administrative stay, filed by federal appellants.