As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. Despite the case centering on the Keystone XL Pipeline, the court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of utility projects that are unrelated to the Keystone XL Pipeline.

Yesterday, the Corps requested the court stay the effect of its ruling pending the Corps’ appeal to the Ninth Circuit. In the alternative, the Corps requests that the court stay its ruling with respect to all projects across the country, except the Keystone XL Pipeline.

The Corps argues that the plaintiff-environmental groups never requested a nationwide vacatur of NWP 12 and, as such, the court was not presented information on the merits or impacts of such a broad remedy. The Corps noted that the court had “enjoined thousands of projects undertaken across the country to provide needed and important services to innumerable segments of the public,” and that the proponents of those projects and the members of the public they serve were not parties to the case. According to the Corps, the “extraordinary and immediate implications” of the order warrants its suspension.

The Corps seeks an expedited briefing schedule on its motion to suspend the order during the pendency of the Corps’ appeal to the Ninth Circuit, noting that the U.S. Solicitor General had authorized the appeal. The Corps proposes the following briefing schedule, which has not yet been approved by the court:

  • April 29: Memoranda in support
  • May 6: Memoranda in opposition
  • May 8: Any reply by the parties in support

If the court does not provide a decision by May 11, the Corps intends to appeal the decision on May 12 to the Ninth Circuit and seek a similar suspension. In the agency’s filings with the court, the Corps notes that the environmental groups involved in the lawsuit oppose the agency’s request, as well as the expedited briefing schedule. If the court’s decision is not suspended, it could adversely impact broadband, gas, electric, and water utility projects across the country, including projects to maintain and repair existing infrastructure for these critical services.