9th Circuit Finds Army Corps' Keystone XL Permit Appeal Moot

摘要

The U.S. Court of Appeals for the 9th Circuit has agreed with the Army Corps of Engineers that the issuance earlier this year of a new Clean Water Act (CWA) general permit for pipeline dredge-and-fill activities moots the Corps' interim appeal of a lower court's ruling that had vacated the earlier version of the permit.But the brief Aug. 11 order from Senior Judges Mary M. Schroeder and A. Wallace Tashima and Judge Andrew D. Hurwitz declines to vacate the underlying district court ruling, leaving that issue for the U.S. District Court for the District of Montana to decide on remand, as environmentalists had urged.The appeals from the Corps, the state of Montana, the company that was building the Keystone XL pipeline and a coalition of industry groups "are dismissed for lack of jurisdiction, and we remand with instructions to dismiss the underlying claim," the order says. "However, we take no position on whether the underlying cases are moot in their entirety and leave that determination to the district court in the first instance."The order continues, "We decline to vacate any of the district court's decisions. On remand, the district court shall consider whether appellants are entitled to vacatur."During the Trump administration, the Corps argued in Northern Plains Resource Council, et al. v. Army Corps of Engineers, et oil. That the district court in Montana erred when it found the Corps should have conducted an Endangered Species Act consultation before issuing the 2017 version of nationwide permit 12 (NWP 12).