AGA NWP 12 Coalition Files Brief in 9th Circuit Challenging District Court Order on NWP 12

On Sept. 16, AGA joined in the NWP 12 Coalition Brief in Northern Plains Resources Council v. Corps demonstrating why the 9th Circuit should overturn the Montana federal district court’s order vacating and enjoining the use of Nationwide Permit 12 (NWP 12) for “construction of new oil and gas pipelines” nationwide. Our brief supported and aligned with the opening brief filed by the government on August 26. This case was originally brought by a group of eNGOs to bar the use of NWP 12 by TC Energy for stream crossings by the Keystone XL oil pipeline. The plaintiffs repeatedly denied that they would ask the court to invalidate and enjoin the use of NWP 12 everywhere by everyone, and yet that is what the Montana federal district court judge granted in his original order. The plaintiffs, no doubt concerned that this would make the order vulnerable on appeal, asked the judge to narrow the remedy somewhat to exclude other utility lines but to ban the use of NWP 12 for “construction of new oil and natural gas pipelines” until the Corps completes a “programmatic consultation” under the Endangered Species Act (ESA), and that is what he required in a revised order. AGA’s NWP 12 Coalition won a unanimous decision from the U.S. Supreme Court in July that stays the district court’s order pending appeal to the 9th Circuit. In our opening brief, we argued that the Corps was not required to conduct an ESA “programmatic” consultation when Headquarters issued the current NWP 12 in 2017, because that framework regulation by definition could have “no effect” on any endangered species or critical habitat. If any specific stream or wetland crossing “might affect” species or habitat, NWP 12 does not authorize it without preconstruction notice (PCN) and further Corps action at the District office level, including a project-specific ESA consultation. We also argued that the district court’s nationwide stay of pipeline projects exceeded the court’s jurisdiction and the remedy was expressly waived by plaintiffs. Briefing will conclude by mid-November, and oral argument will likely take place in December or January. Contact Pam Lacey or Tim Parr

 NWP 12 Coalition Brief 091620 9th Circuit

DOJ 082620 Merits Breif to 9th Circuit NWP12