• Mark Ryan

SCOTUS Partially Lifts Stay of NWP 12

The Supreme Court yesterday issued the following order with regard to the Keystone XL Pipeline. See my April 16 blogpost for more on the district court case. Also, below is a summary of the May 11 opinion referenced by the Supreme Court. The order appears to lift the stay of the nationwide use of NWP 12, but not as applied to the XL Pipeline. This is yet another case to keep an eye on as it works its way up through the 9th Cir. and likely on to SCOTUS.

MONDAY, JULY 6, 2020 ORDER IN PENDING CASE 19A1053 ARMY CORPS OF ENGINEERS, ET AL. V. N. PLAINS RES. COUNCIL, ET AL. The application for stay presented to Justice Kagan and by her referred to the Court is granted in part and denied in part. The district court’s May 11, 2020 order granting partial vacatur and an injunction is stayed, except as it applies to the Keystone XL pipeline, pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Northern Plains Resource Council v. USACOE, 2020 WL 3638125 (D. Mt. 2020) (on motion for reconsideration, held that NWP vacatur should be limited to construction of new pipelines and Corps is enjoined from authorizing new construction activities under NWP 12; stay pending appeal is not warranted because defendants are not likely to succeed on appeal and equities favor protecting the environment; vacatur remains the presumptive remember when an agency violates the law; a district court may exercise discretion where appropriate to order partial, rather than complete, vacatur)

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