U.S. Army Corps Asks Federal Court to Stay Decision Vacating NWP 12, Indicates It Will Appeal

April 28, 2020

By Haley Waller PittsLindsey A. Remakel and Jeremy P. Duehr

On April 27, 2020, the U.S. Army Corps of Engineers filed a motion asking a Montana federal court to partially stay its April 15, 2020, decision vacating Nationwide Permit 12, pending a Corps appeal of that decision. The litigation arises from the Keystone XL pipeline, but the court’s decision went beyond limiting activities related solely to that project.

Instead, the court more broadly vacated the use of NWP 12 and enjoined the Corps from authorizing any dredge or fill activities under NWP 12. The decision continues to create uncertainty for utility infrastructure and renewable projects across the country that rely upon NWP 12.

In its April 27 filing, the Corps asks the court to, at the very least, limit its decision to the Keystone XL pipeline. The Corps asks the court to consider the motion on an expedited basis and to issue a decision by May 11, 2020. The Corps states that it will appeal to the Ninth Circuit Court of Appeals the following day. The court is not required to follow the schedule requested by the Corps, but we anticipate there will be further developments in the case in the next two weeks.

Fredrikson & Byron is continuing the monitor the litigation and interim guidance and directives issued by the Corps relating to the court’s order.