By John McFerrin

            The United States Court of Appeals for the Ninth Circuit has refused to stay the effectiveness of the District Court’s decision that voided Nationwide Permit 12, the permit that authorized stream and wetland crossings by utilities (including pipelines). This means that the decision voiding Nationwide Permit 12 remains in effect while the Court of Appeals considers the appeal.

As discussed more extensively in the May, 2020, issue of The Highlands Voice, a United States District Court for the District of Montana has voided Nationwide Permit 12 previously issued by the United States Army Corps of Engineers.  Nationwide Permit 12 provides the authority for many, many crossings of streams and wetlands by utility projects, including pipelines.  In West Virginia it is what authorizes the Atlantic Coast Pipeline to cross 739 streams and wetlands.  It is what authorizes the Mountain Valley Pipeline to cross 591 streams and wetlands in West Virginia.  Without NWP 12, those pipelines no longer have authority to cross those streams and wetlands.

Because Nationwide Permit 12 applied to the entire country, if affects utility projects across the entire country.  

The Permit was voided because, when the United States Army Corps of Engineers issued it, it did not comply with the Endangered Species Act.  More specifically, the Corps of Engineers has a duty under the Endangered Species Act to ask the United States Fish and Wildlife Service for guidance when its actions “may affect” a listed species or critical habitat.  When the Corps reissued Nationwide Permit 12, it went ahead without asking for guidance from the Fish and Wildlife Service.  This, the District Court held, made the reissuance of Nationwide Permit 12 a violation of the Endangered Species Act.

In its Order, the Court gave the Corps of Engineers the option of reconsidering Nationwide Permit 12, this time complying with the Endangered Species Act by asking for guidance from the Fish and Wildlife Service.  Instead of doing that, the Corps of Engineers decided to appeal to the United States Court of Appeals for the Ninth Circuit.

As part of its appeal, the Corps of Engineers asked the Court of Appeals to stay the effectiveness of its order while the appeal was pending.  Had the Court granted the request, then NWP 12 would have remained in effect while the appeal was pending.  The Corps could have continued using it to authorize stream crossings.

The Court of Appeals denied the request for a stay.  As a result, the District Court’s Order remains in effect and the Corps of Engineers may not authorize any stream crossings on the basis of NWP 12.  This is significant in West Virginia because both the Atlantic Coast Pipeline and the Mountain Valley Pipeline rely upon NWP 12 for all of their multiple stream crossings.  With NWP 12 ruled invalid, neither of these two pipelines have any authority for stream or wetland crossings.

At Disneyland, one can tell which are the really good rides by looking at which lines are the longest.  In law, one can tell which are the really important cases by looking at how many lawyers are lined up.  Here the American Fuel & Petrochemical Manufacturers; Energy Infrastructure Council; the Chamber of Commerce of the United States; the States of West Virginia, Texas, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, and Utah; Defenders of Wildlife, Virginia Wilderness Committee, West Virginia Highlands Conservancy, and West Virginia Rivers Coalition; and the Rosebud Sioux Tribe and Fort Belknap Indian Community applied for and were granted status as amici curiae.  An amicus curiae is someone who is not a party to a case who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case.   Literally it is the Latin term for friend of the court.  

Defenders of Wildlife, Virginia Wilderness Committee, West Virginia Highlands Conservancy, and the West Virginia Rivers Coalition were recognized as amicus curiae in large part because of the insights into how the decision would affect endangered species.  The organizations have been involved in disputes over the Atlantic Coast Pipeline and the Mountain Valley Pipeline, including disputes over how those pipelines would affect endangered species.  They could offer the Court the insights into the application of the Endangered Species Act to stream crossings that could potentially be authorized by NWP 12.

By far the greatest impact of the denial of the request for a stay is that the Court’s Order remains in effect.  Had the request been granted, NWP 12 would remain in effect and the Corps of Engineers could go ahead and authorizing stream crossings on its authority.

The denial of the stay also has some predictive value.  One of the factors the Court of Appeals considers in deciding on a request for a stay is “probability of success on the merits.”  The Court would be reluctant to stay temporarily an Order which it would later uphold.  It would be more likely to stay an Order that it would probably ultimately overturn.

The Court decided at this stage that the Corps of Engineers had not shown a probability of success on the merit. This means that after the Court of Appeals’ first look at the case it believed that the lower Court was correct.

Denial of the stay is not a strong predictor.  Once the Court of Appeals hears more from the parties and finds out what all those amici have to say, it could well see the case differently.  Right now, however, the denial of the stay says that the Court of Appeals is leaning, at least slightly, in the direction of affirming the lower Court.