“A court that issues a nationwide injunction is not resolving a judicial controversy but rather is engaged in policymaking.”
—Cory Andrews, WLF Vice President of Litigation

Click HERE for WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today asked the U.S. Court of Appeals for the Ninth Circuit to vacate a wildly overbroad district court order that blocks all new oil line and gas line projects, nationwide.

The case arises from a suit by environmental activists over the dredge and fill that companies sometimes place in navigable waters as they construct utility lines. The underlying issue is whether the U.S. Army Corps of Engineers committed a procedural violation of the Endangered Species Act when it relied on nationwide permit 12 (NWP 12)—a streamlined protocol for permitting such dredge and fill activity—to allow the construction of the Keystone XL pipeline.

But in siding with the plaintiffs, the district court took an extraordinary step. Although the plaintiffs had challenged the use of NWP 12 for only the Keystone XL project, the district court vacated NWP 12 in full and enjoined its use for any project, nationwide. In subsequent briefing, even the plaintiffs encouraged the court to narrow its remedy. While the court later limited the scope of its order to “the constriction of new oil and gas pipelines,” that sweeping relief still lacks any legal basis.

As WLF contends in its amicus brief, the plaintiffs here lacked standing to obtain nationwide relief. Under Article III, a court may only resolve the case or controversy between the parties before it. A lone district court judge has no authority to block implementation of nationwide governmental policy. Nor did the plaintiffs attempt to show—nor could they—that they are somehow injured by every new oil and gas project approved under NWP 12. Rather than vacate NWP 12 and issue a nationwide injunction, the trial court should have simply remanded to the agency and its experts to fix the supposed procedural defect.