On May 19 we published a Q&A with environmental-law specialist Tom Jackson of Baker Botts L.L.P. on a federal district court’s order that enjoined businesses building or maintaining utility lines (i.e. oil pipelines, telecommunications cables, etc.) from relying upon a nationwide water-emissions permit for its activities. The underlying lawsuit arose in the specific context of businesses’ construction of the transcontinental Keystone XL pipeline, but District of Montana Judge Brian Morris vacated Nationwide Permit 12 and ordered the Army Corps of Engineers to reconsider the permit’s effects on threatened and endangered species.
Judge Morris subsequently limited the scope of his order, but denied the Army Corps’ and the private defendants’ request for a stay pending appeal. The parties moved the U.S. Court of Appeals for the Ninth Circuit for a stay of Judge Morris’s order.
After expedited briefing, a two-judge panel of the Ninth Circuit yesterday denied the motions for a stay, concluding that “Appellants have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.”
In the Q&A, Jackson explained the ramifications of such an outcome:
“If the Ninth Circuit declines to stay the district court’s vacatur of NWP 12 and its related injunction, the parties to the case will proceed to briefing on the merits. Under the schedule established by the court, that briefing would commence in August and continue into the fall. A decision from the court would likely not come until sometime next year.
In the meantime, the Corps would need to provide further guidance to the regulated community regarding allowed and prohibited uses of NWP 12. That guidance would come in the form of general guidance issued by Corps Headquarters and/or project-specific guidance issued by Corps Districts. At the same time, the Corps would need to decide how to proceed with the Section 7 consultation mandated by the district court regarding the current version of NWP 12, a decision that will undoubtedly be influenced by the fact that the Corps is already in the process of renewing at least some of the nationwide permits—including NWP 12—on an accelerated schedule in response to an Executive Order. While members of the regulated community watch these developments unfold, those who have historically relied on NWP 12 for a wide range of activities that are critical to supplying essential energy and other services to the public—particularly those with oil- and gas-related projects—will need to assess whether their projects are in fact impacted by the district court’s amended order, a process that may include discussions with Corps District project managers and counsel.”