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Northern Plains Resource Council v. U.S. Army Corps of Engineers

ELR Citation: 50 ELR 20115
Nos. CV 19-44-GF-BMM, (D. Mont., 05/11/2020) (Morris, J.)

A district court amended a previous order that vacated a nationwide permit (NWP 12) reissued by the U.S. Army Corps of Engineers and enjoined the Corps from authorizing any dredge or fill activities under the permit pending completion of the ESA §7 consultation process. The Corps moved for a partial stay pending appeal and suggested that the court revise its remedy. Environmental groups proposed that the court narrow its vacatur of NWP 12 to a partial vacatur that applied only to the construction of new oil and gas pipelines. The court found that this struck a reasonable balance in minimizing potential disruption to existing NWP 12 projects and small-scale projects while ensuring appropriate protection for endangered and threatened species and their critical habitats. The groups also asserted that the Keystone XL Pipeline should be enjoined to avoid irreparable harm. The court disagreed, finding that it would be improper to single out Keystone XL because no evidence existed indicating that construction of that specific pipeline necessarily imposed a greater risk under the ESA than construction of other new oil and gas pipelines. It therefore vacated NWP 12 as it relates to construction of new oil and gas pipelines and enjoined the Corps from authorizing dredge and fill activities for construction of such pipelines pending completion of the ESA consultation process, but left NWP 12 in place for non-pipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects.