Application — United States Army Corps of Engineers, et al., Applicants v. Northern Plains Resource Council, et al.

No. 19A-_____

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

U.S. ARMY CORPS OF ENGINEERS AND LIEUTENANT GENERAL TODD T.

SEMONITE, CHIEF OF ENGINEERS, APPLICANTS

v.

NORTHERN PLAINS RESOURCE COUNCIL, ET AL.

_______________

APPLICATION FOR A STAY PENDING APPEAL

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT AND PENDING

FURTHER PROCEEDINGS IN THIS COURT

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

PARTIES TO THE PROCEEDING

The applicants (defendants-appellants below) are the U.S.

Army Corps of Engineers and Lieutenant General Todd T. Semonite,

in his official capacity as Chief of Engineers and Commanding

General of the U.S. Army Corps of Engineers.

The respondents (plaintiffs-appellees below) are Northern

Plains Resource Council; Bold Alliance; Natural Resources Defense

Council; Sierra Club; Center For Biological Diversity; and Friends

of the Earth.

The following parties also participated in the proceedings

below as intervenor-defendants:

LP;

TC

Energy

Corp.;

the

TransCanada Keystone Pipeline,

State

of

Montana;

American

Gas

Association; American Petroleum Institute; Association of Oil Pipe

Lines; Interstate Natural Gas Association of America; and National

Rural Electric Cooperative Association.

RELATED PROCEEDINGS

United States Court of Appeals (9th Cir.):

Northern Plains Res. Council v. United States Army Corps of

Eng’rs, Nos. 20-35412, 20-35414, and 20-35415 (May 28,

2020)

Northern Plains Res. Council v. United States Army Corps of

Eng’rs, No. 20-35432 (docketed May 5, 2020)

United States District Court (D. Mont.):

Northern Plains Res. Council v. United States Army Corps of

Eng’rs, No. 19-cv-44 (Apr. 15, 2020)

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 19A-_____

U.S. ARMY CORPS OF ENGINEERS AND LIEUTENANT GENERAL TODD T.

SEMONITE, CHIEF OF ENGINEERS, APPLICANTS

v.

NORTHERN PLAINS RESOURCE COUNCIL, ET AL.

_______________

APPLICATION FOR A STAY PENDING APPEAL

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT AND PENDING

FURTHER PROCEEDINGS IN THIS COURT

_______________

Pursuant to this Court’s Rule 23 and the All Writs Act,

28 U.S.C. 1651, the Solicitor General, on behalf of the U.S. Army

Corps of Engineers (the Corps) and Lieutenant General Todd T.

Semonite, Chief of Engineers, respectfully applies for a stay of

the April 15, 2020, order issued by the United States District

Court for the District of Montana (as amended May 11), pending the

consideration and disposition of the consolidated appeals from

that order to the United States Court of Appeals for the Ninth

Circuit and, if necessary, pending the filing and disposition of

a petition for a writ of certiorari and any further proceedings in

this Court.

2

The

district

court

initially

vacated

in

its

entirety

a

nationwide permit issued by the Corps under the Clean Water Act,

33 U.S.C. 1251 et seq., to authorize the discharge into waters of

the United States of dredge and fill materials from activities

that are necessary for the construction, repair, and maintenance

of utility lines, including oil and gas pipelines.

The court also

entered a nationwide injunction forbidding the Corps from relying

on that permit -- Nationwide Permit 12 (NWP 12) -- to authorize

any further activities.

The court granted those sweeping remedies

after erroneously concluding that the Corps had violated the

Endangered Species Act of 1973 (ESA), Pub. L. No. 93-205, 87 Stat.

884 (16 U.S.C. 1531 et seq.), by not engaging in “programmatic”

consultation with the relevant federal wildlife agencies before

re-issuing NWP 12 in 2017.

A version of NWP 12 has been in effect

continuously since the late 1970s, and the Corps and private

parties rely on it for thousands of activities annually.

Under

Article

III

of

the

Constitution

and

background

principles of equity, a federal court may not award equitable

relief -- including vacatur or an injunction -- except to the

extent necessary to redress a concrete and particularized injury

suffered by the plaintiff in suit.

United

States

increasingly

has

common

invoked

those

problem

of

In many recent cases, the

principles

to

“nationwide”

challenge

or

the

“universal”

injunctions issued by district courts at the behest of individual

3

plaintiffs to halt the application of a federal law or policy to

all persons everywhere. The equitable relief granted in this case,

however, went several steps beyond even that.

Here, the plaintiffs (respondents in this Court) brought this

action to challenge the Corps’ alleged use of NWP 12 to authorize

dredge and fill activities necessary for the construction of the

proposed Keystone XL pipeline, an 882-mile project that would cross

waters of the United States numerous times. Respondents repeatedly

disclaimed any request for vacatur of NWP 12, or an injunction,

extending

beyond

Keystone

XL

itself;

respondents

made

no

meaningful effort to establish Article III standing to challenge

the potential application of NWP 12 to crossings by any other

specific proposed pipelines; and the district court relied on

respondents’ disclaimers in limiting the ability of other parties

to intervene in the litigation.

At summary judgment, the district court nonetheless granted

the global equitable relief that respondents had disclaimed.

Corps

promptly

sought

a

stay

pending

respondents proposed yet a new remedy:

appeal.

In

The

response,

vacatur of NWP 12 with

respect to the construction of new oil and gas pipelines and an

injunction limited to Keystone XL.

Respondents also submitted 14

new declarations, purportedly showing harm from other proposed

pipelines.

The court accepted those belated submissions and

amended its order to vacate NWP 12, and to enjoin the Corps from

4

relying

on

pipelines.”

it,

as

to

“the

construction

of

new

oil

and

gas

App., infra, 42a.

The amended order would not survive this Court’s review and

should be stayed pending appeal. The district court had no warrant

to set aside NWP 12 with respect to Keystone XL, let alone for the

construction of all new oil and gas pipelines anywhere in the

country.

First, the order grants nationwide equitable relief that

is inconsistent with Article III and traditional principles of

equity.

Second, the order was issued without fair notice that the

court itself would unilaterally grant relief beyond the equitable

remedies that respondents had sought.

sound basis in the ESA.

Third, the order lacks any

The Corps reasonably determined that

merely re-issuing NWP 12 would have no effect on listed species or

critical habitat -- and therefore did not trigger any consultation

requirement under the ESA -- because the regulatory scheme and

conditions in NWP 12 ensure that any necessary consultation occurs

on an activity-specific basis.

If the district court’s order is not stayed pending appeal,

it will cause irreparable harm to the Corps and the public.

In

the absence of NWP 12 or another applicable general permit, the

Corps would be unable to authorize dredge or fill activities for

the construction of new oil or gas pipelines except through an

expensive

and

time-consuming

individual

permitting

process,

involving site-specific review and a public comment period -- even

5

if the project proponent intentionally designed the activities so

that they would have minimal environmental impact.

The order will

affect not just large-scale projects like Keystone XL but also the

many minor activities routinely authorized under NWP 12. See App.,

infra, 79a-82a (Moyer Decl. ¶¶ 5-9).

And the order would impose

those harms for little if any countervailing benefit.

At a

minimum, this Court is likely to conclude that the order is

overbroad and should be limited to Keystone XL, as respondents

themselves had requested before belatedly changing course.

STATEMENT

1.

a.

The Clean Water Act prohibits the discharge of any

“pollutant” into “navigable waters” without a permit.

1311(a), 1362(12).

33 U.S.C.

The term “navigable waters” means the waters

of the United States, including certain tributaries and wetlands.

33 U.S.C. 1362(7); see 33 C.F.R. 328.3(a).

The term “pollutant”

includes materials dredged from waters and “fill” materials placed

in waters to create dry land (e.g., for construction).

1362(6); see 33 C.F.R. 323.2.

33 U.S.C.

The Clean Water Act authorizes the

Secretary of the Army, acting through the Corps, to issue permits

for the discharge of such “dredged or fill material.”

33 U.S.C.

1344(a) and (d).

The Corps may issue an individual permit for a particular

project or a “general permit” on a state, regional, or nationwide

basis for a category of projects.

33 U.S.C. 1344(a) and (e).

An

6

individual permit generally may be issued only after the applicant

submits

extensive,

site-specific

documentation

provides an opportunity for public comment.

(permitting process).

and

the

Corps

See 33 C.F.R. Pt. 325

General permits, by contrast, enable the

Corps to streamline the regulatory approval process for categories

of

activities

that

have

individually and cumulatively.

minimal

environmental

impacts,

See 33 C.F.R. 330.1(b) (explaining

that the purpose of nationwide permits is to “regulate with little,

if any, delay or paperwork certain activities having minimal

impacts”); S. Rep. No. 370, 95th Cong., 1st Sess. 74 (1977) (Senate

Report)

(describing

eliminating

* * *

general

permits

as

“a

mechanism

for

delays and administrative burdens”).

In

particular, the Corps may issue a general permit for any category

of activities “similar in nature” that “will cause only minimal

adverse environmental effects when performed separately, and will

have only minimal cumulative adverse effect on the environment.”

33 U.S.C. 1344(e)(1).

General permits may be issued only after

notice and an opportunity for public comment and may remain valid

for up to five years.

33 U.S.C. 1344(e)(1) and (2).

Nationwide permits, such as NWP 12, are issued by the Chief

of

Engineers

after

described above.

making

the

minimal-impact

33 C.F.R. 330.1(b).

determinations

The Chief of Engineers

ensures that activities encompassed by a nationwide permit will

have no more than a minimal environmental impact in part by

7

imposing

“General

Conditions”

that

apply

to

every

nationwide

permit, as well as additional specific terms and conditions in

each

nationwide

permit.

An

activity

is

authorized

under

a

nationwide permit “only if that activity and the permittee satisfy

all of the [permit’s] terms and conditions.”

The

Corps’

regulations

also

create

33 C.F.R. 330.1(c).

additional

local

and

project-specific safeguards to ensure that activities authorized

by a nationwide permit will have only minimal impact.

First, the

regulations anticipate that regional officials, known as division

engineers, may determine that the application of a nationwide

permit to a specific geographic area, class of activities, or class

of waters “would result in more than minimal adverse environmental

effects

either

individually

or

cumulatively.”

33

C.F.R.

330.4(e)(1).

If a division engineer makes such a determination,

the

engineer

division

may

“modify,

suspend,

or

revoke”

the

nationwide permit authorization with respect to the specific area,

activities, or waters at issue.

33 C.F.R. 330.5(c)(1).

Second, each nationwide permit specifies certain conditions

under which a prospective permittee must submit a pre-construction

notification to the Corps to verify that a proposed activity will

comply

with

the

nationwide

permit.

A

pre-construction

notification is a site-specific notice to the Corps about the

potential effects of a proposed activity at a specific crossing of

navigable

waters.

Upon

receipt

of

such

a

notification,

the

8

district engineer must evaluate the proposed activity.

If “the

adverse effects are more than minimal,” the district engineer must

“notify the prospective permittee that an individual permit is

required.”

33 C.F.R. 330.1(e)(3).

For activities that do not

require pre-construction notification, a prospective permittee may

assess that the activity is covered by a nationwide permit without

involving the Corps or providing notice to the Corps.

b.

Nationwide Permit 12 applies to “[a]ctivities required

for the construction, maintenance, repair, and removal of utility

lines and associated facilities in waters of the United State,

provided the activity does not result in the loss of greater than

1/2-acre of waters of the United States for each single and

complete project.”

82 Fed. Reg. 1860, 1985 (Jan. 6, 2017).

For

utility lines that cross covered waters in more than one place,

each crossing is a single “project.”

the

term

“utility

line”

to

Id. at 1986.

include

not

only

NWP 12 defines

electrical

and

communications wires, but also oil and gas pipelines. Id. at 1985.

The permit specifies several conditions that require a prospective

permittee to submit a pre-construction notification to the Corps,

including if the project would “result in the loss of greater than

1/10-acre of waters of the United States.”

Id. at 1986.

Like other nationwide permits, NWP 12 is subject to a number

of General Conditions to which permittees must adhere.

General

Condition 18 addresses the potential impact of activities on

9

species listed under the ESA.

It provides that “[n]o activity is

authorized under any NWP which is likely to directly or indirectly

jeopardize the continued existence of a threatened or endangered

species

* * *

or which will directly or indirectly destroy or

adversely modify the critical habitat of such species.”

Reg. at 1999.

82 Fed.

It also requires permittees (other than federal

agencies) to submit a pre-construction notification to the Corps

“if any listed species or designated critical habitat might be

affected or is in the vicinity of the activity, or if the activity

is

located

in

designated

33 C.F.R. 330.4(f)(2).

critical

habitat.”

Ibid.;

accord

In those circumstances, a prospective

permittee may not “begin work on the activity” until notified by

the Corps that the activity is authorized.

82 Fed. Reg. at 1999.

The Corps first issued a nationwide utility line permit in

1977, see 42 Fed. Reg. 37,122, 37,146 (July 19, 1977), and it

issued the most recent version of NWP 12 on January 6, 2017, after

notice and comment, see 82 Fed. Reg. at 1862.

Since 2017, the

Corps has received and verified more than 38,000 pre-construction

notifications for projects under NWP 12.

c.

Moyer Decl. ¶ 4.

Section 7(a)(2) of the ESA requires each federal agency

to ensure that any action authorized by the agency “is not likely

to jeopardize the continued existence of any endangered species or

threatened

species

or

result

in

the

destruction

modification of [critical] habitat of such species.”

or

adverse

16 U.S.C.

10

1536(a)(2); see 50 C.F.R. 402.02 (agency action includes “the

granting of

* * *

permits”).

When an agency proposes to take an

action, it must first determine whether such action “may affect”

a listed species or designated critical habitat for a listed

species.

50 C.F.R. 402.14(a).

Unless the agency then determines

that the action “is not likely to adversely affect” a listed

species or critical habitat, it generally must engage in formal

consultation with either the Fish and Wildlife Service (FWS) or

the National Marine Fisheries Service (NMFS), depending on the

species involved.

50 C.F.R. 402.14(b)(1).

Formal consultation

results in a “biological opinion,” prepared by FWS or NMFS, that

addresses whether the proposed action is likely to jeopardize the

continued existence of any listed species or is likely to result

in the destruction or adverse modification of any designated

critical habitat.

50 C.F.R. 402.14(h)(1)(iv).

The Corps engaged in consultation with FWS and NMFS before

re-issuing NWP 12 and other nationwide permits in 2007 and 2012,

on the express understanding by the Corps that the consultation

was not required by the ESA.

1, 2016).

See 81 Fed. Reg. 35,186, 35,194 (June

As to the 2012 re-issuance, FWS did not conclude the

consultation, and NMFS ultimately issued a biological opinion in

2014 concluding that those nationwide permits were not likely to

jeopardize the continued existence of any listed species or destroy

or adversely modify designated critical habitat.

Gov’t C.A. Stay

11

App. 430.

The Corps declined to engage in voluntary consultation

again before re-issuing NWP 12 and other nationwide permits in

2017, but it maintained all of the feasible protective measures

identified in NMFS’s 2014 biological opinion.

See id. at 427-428.

In the 2017 re-issuance, the Corps explained that issuing the

nationwide permits themselves has no effect on listed species or

critical habitat -- and therefore does not trigger any consultation

requirement -- because the regulatory scheme and the permits are

designed to ensure that any necessary consultation occurs on an

activity-specific basis.

In particular, the Corps explained that

General Condition 18 and 33 C.F.R. 330.4(f)(2) require prospective

permittees to provide the Corps with pre-construction notification

of any activity that “might affect” a listed species or critical

habitat,

which

activities)

than

is

a

the

broader

“may

standard

affect”

(encompassing

threshold

triggering Section 7(a)(2) consultation.

for

more

potentially

82 Fed. Reg. at 1873.

When the Corps receives such a notification, it determines whether

the consultation threshold is met on an activity-specific basis.

Ibid.

The Corps also explained that it had coordinated with FWS

and NMFS officials in establishing regional permitting conditions,

including additional pre-construction notification requirements

“in areas inhabited by listed species or where designated critical

habitat occurs.”

Ibid.

12

2.

Respondents

--

regional

and

national

environmental

groups -- brought this suit against the Corps and the Chief of

Engineers in July 2019 to challenge the Corps’ alleged “approval

of the Keystone XL pipeline using [NWP] 12.”

App., infra, 69a-70a.

Am. Compl. ¶ 1; see

The proposed Keystone XL oil pipeline would

enter the United States from Canada near Morgan, Montana, and would

continue for approximately 882 miles to Steele City, Nebraska,

where it would connect to an existing pipeline.

See U.S. Dep’t of

State, Final Supplemental Environmental Impact Statement for the

Keystone XL Project, Vol. I, at S-1 (Dec. 2019) (State 2019 EIS).

In

2017,

the

project’s

proponent,

TC

Energy,

submitted

pre-

construction notifications to the Corps for all of Keystone XL’s

proposed crossings of covered waters.

Am. Compl. ¶ 153.

later

the

withdrew

those

notices,

and

Corps

TC Energy

suspended

its

verifications that the proposed activities were authorized under

NWP 12.

Id. ¶ 189.

In 2020, TC Energy again submitted pre-

construction notifications for the proposed crossings for the

pipeline.

The 2020 notifications remain pending before the Corps.

See D. Ct. Doc. 113, at 1-2 (Feb. 19, 2020).

As relevant here, respondents alleged that the Corps had

violated the ESA by re-issuing NWP 12 in 2017 without “initiat[ing]

formal programmatic consultation” with FWS and NMFS, and that any

approval

of

Keystone

XL

under

NWP

12

was

therefore

“not

in

accordance with law and must be set aside” under the Administrative

13

Procedure Act (APA), 5 U.S.C. 701 et seq.

Am. Compl. ¶ 10, 217.

Respondents further alleged that their members were harmed by this

putative violation because they “live, work, and recreate in places

threatened by Keystone XL.”

Id. ¶ 23.

Respondents requested that

the district court declare NWP 12 unlawful and remand it to the

agency

for

compliance

with

the

ESA,

“[v]acate

all

Corps

verifications or other approvals of Keystone XL under NWP 12,” and

enjoin the Corps “from using NWP 12 to authorize” Keystone XL.

Id. at 87-88 (Prayer for Relief).

Respondents did not allege any

concrete injury relating to any other pipeline, nor did they

request

any

injunctive

relief

beyond

Keystone

XL.

Indeed,

respondents’ amended complaint refers to the Keystone XL project

more than one hundred times and does not mention a single other

ongoing pipeline activity. 1

TC Energy intervened as a defendant.

23, 2019).

D. Ct. Doc. 20 (July

When Montana and a coalition of energy-industry groups

sought to intervene, respondents opposed those requests, arguing

that any concerns about the continued availability of NWP 12 for

other utility-line projects were misplaced because respondents “do

not seek to vacate NWP 12, but rather seek vacatur and injunctive

As respondents recognized (see Am. Compl. ¶¶ 139-141),

the Keystone XL project itself was already the subject of

consultation with FWS, initiated by the Department of State with

the Corps’ participation.

The State Department also issued an

environmental impact statement for Keystone XL in 2014, which was

later supplemented in light of certain revisions to the proposed

pipeline. See State 2019 EIS S-2 (timeline).

1

14

relief only as to Keystone XL approvals.”

D. Ct. Doc. 52, at 3

(Oct. 29, 2019); see also D. Ct. Doc. 50, at 3 (Oct. 18, 2019)

(respondents’ earlier statement that they “have not sought to have

NWP 12 broadly enjoined” but rather “seek narrowly tailored relief

to

ensure

adequate

environmental

especially Keystone XL”).

review

of

oil

pipelines,

The district court allowed Montana and

the industry coalition to intervene in a limited capacity.

infra, 69a-76a.

App.,

In limiting those intervenors’ participation, the

court recognized that respondents “do not ask the [c]ourt to vacate

NWP 12,” and the court assured Montana and the industry groups

that they “could still prospectively rely on [NWP 12] until it

expires on its own terms in March 2022, even if [respondents]

prevail on the merits.”

Id. at 72a-73a.

At summary judgment, respondents again disclaimed any request

for “broad relief that might impact other uses of NWP 12.”

Doc. 107, at 56 (Jan. 29, 2020).

D. Ct.

Respondents maintained that,

“from the outset” of the litigation, they had asked the district

court to declare that issuance of NWP 12 violated the ESA and other

statutes and to remand NWP 12 to the Corps for compliance with

those laws, but only to “vacate the Corps’ use of NWP 12 to approve

Keystone XL[] and enjoin activities in furtherance of Keystone

XL’s construction.”

3.

a.

On

Id. at 56-57.

April

15,

2020,

the

district

court

granted

partial summary judgment to respondents on their claim for failure

15

to consult under Section 7(a)(2) of the ESA, while declining to

decide respondents’ other pending claims.

App., infra, 43a-68a.

The court concluded that certain general prior statements by the

Corps

about

activities,

the

environmental

together

with

two

impact

of

NWP

declarations

respondents, furnished “‘resounding evidence’

12-authorized

submitted

* * *

by

that the

Corps’ reissuance of NWP 12 ‘may effect’ listed species and their

habitat.”

Id. at 53a (citation omitted). 2

The district court rejected the Corps’ reliance on General

Condition 18 and project-level review.

App., infra, 58a.

In its

view, the Corps had an obligation to “consider the effect of the

entire agency action” at a programmatic level.

Ibid.

The court

also observed that General Condition 18 relies on prospective

permittees to determine that a given activity might affect a listed

species or critical habitat.

“presume[d]

that

* * *

Id. at 61a.

permittees

will

Although the court

comply”

with

that

obligation, it nonetheless faulted the Corps for “delegat[ing]” to

permittees the Corps’ responsibilities under the ESA.

Ibid.

As a remedy, the district court remanded NWP 12 to the Corps

for compliance with the ESA.

App., infra, 68a.

respondents’

representations

repeated

prior

Notwithstanding

about

the

limited

The declarations on which the district court relied

argued that Keystone XL might harm two listed species, the pallid

sturgeon and the American burying beetle; they did not address any

other pipeline. See App., infra, 53a-58a; D. Ct. Doc. 73-4, at 35 (Nov. 22, 2019); D. Ct. Doc. 73-1, at 2-5 (Nov. 22, 2019).

2

16

scope of equitable relief they were seeking, the court also -without any explanation -- vacated NWP 12 in its entirety “pending

completion of the consultation process” and “enjoined [the Corps]

from author[iz]ing any dredge or fill activities under NWP 12

pending completion of the consultation process.”

b.

Ibid.

On April 27, 2020, the Corps requested that the district

court stay its order vacating and enjoining NWP 12 pending appeal.

D. Ct. Doc. 131, at 1; see 28 U.S.C. 1292(a)(1). The Corps observed

that respondents had expressly disclaimed the very relief that the

court

had

granted,

and

disclaimers

earlier

in

that

the

the

case.

court

In

had

light

endorsed

of

the

those

court’s

unexplained departure from its prior position, the Corps delayed

filing a notice of appeal to ensure that the court retained

jurisdiction to revise its order.

D. Ct. Doc. 131, at 2.

Respondents did not meaningfully defend the district court’s

injunction.

Instead, respondents proposed a new remedy:

vacating

NWP 12 as to “the construction of new oil and gas pipelines” and

“narrowing the injunction to enjoin the Corps from authorizing any

dredge or fill activities for Keystone XL under NWP 12.”

Doc. 144, at 2 (May 6, 2020).

D. Ct.

Respondents claimed that this new

remedy was consistent with the boilerplate request in their amended

complaint for “such other relief as the [c]ourt deems just and

appropriate,” and that their prior focus on Keystone XL had been

merely

“illustrative.”

Id.

at

21,

25

(citation

omitted).

17

Respondents also submitted 14 new declarations identifying other

pipelines for the first time and addressing purported harms from

those pipelines.

c.

See id. at 27.

On May 11, 2020, the district court modified its prior

order and declined to stay the modified order pending appeal.

App., infra, 5a-42a.

Specifically, the court vacated NWP 12 “as

it relates to the construction of new oil and gas pipelines pending

completion of the consultation process,” while leaving NWP 12 in

effect

“insofar

activities

and

as

it

routine

authorizes

non-pipeline

maintenance,

activities on existing NWP 12 projects.”

construction

inspection,

Id. at 42a.

and

repair

The court

also enjoined the Corps “from author[iz]ing any dredge or fill

activities for the construction of new oil and gas pipelines under

NWP 12” -- not just Keystone XL, as respondents had requested -“pending completion of the consultation process” on NWP 12.

Ibid.

The court did not address whether the amended order would permit

new construction with respect to existing pipelines.

In refashioning its order, the district court stated that

granting “broad programmatic relief” to “a single plaintiff with

a successful [APA] claim” was the “routine[]” course in the Ninth

Circuit, without requiring the plaintiff to show “harms stemming

from each unlawful application” of the challenged agency action.

App., infra, 9a.

Consistent with that view, the court found that

respondents were likely to suffer irreparable harm absent an

18

injunction without identifying any concrete injury they might

suffer with respect to any proposed pipeline other than Keystone

XL.

See id. at 24a-27a; cf. id. at 37a (stating that respondents

“easily satisfied the irreparable injury requirement” because “an

increase in the number and size of pipelines increases the risk of

an accident or harm to the environment”).

4.

The Corps, TC Energy, Montana, and the coalition of

energy-industry

intervenors

noticed

appeals

from

the

district

court’s injunction and (with the exception of Montana) all filed

emergency motions for a stay pending appeal. A variety of national

business groups supported that request as amici curiae, as did 18

States concerned with what they described as the court’s unilateral

transformation of this case from one “challenging application of

[NWP 12] to one pipeline project into an opportunity to issue a

nationwide injunction affecting new oil and gas pipelines in every

State -- no matter their length, purpose, or minimal environmental

effects.”

States’ C.A. Amici Br. 1; see, e.g., American Fuel &

Petrochemical Mfrs. C.A. Amicus Br. 1-2 (stating that the district

court’s

injunction

“was

a

surprise

to

* * *

countless

stakeholders that were not involved in the litigation but are

suffering immediate and adverse consequences”).

The court of appeals consolidated the three appeals in which

a stay was sought, see C.A. Order (May 14, 2020), and denied a

stay in a brief order issued by two judges assigned to the court’s

19

monthly motions panel, without hearing argument, see App., infra,

1a-4a.

In its entirety, the court’s explanation of its reasoning

consisted of the following:

“Appellants have not demonstrated a

sufficient likelihood of success on the merits and probability of

irreparable harm to warrant a stay pending appeal.”

Id. at 3a.

ARGUMENT

The government respectfully requests that this Court stay the

district court’s order pending appeal and, if necessary, pending

further proceedings in this Court.

Under this Court’s Rule 23 and

the All Writs Act, 28 U.S.C. 1651, a single Justice or the Court

may stay a district-court order pending appeal to a court of

appeals.

In deciding whether to issue such a stay, the Court or

a Circuit Justice considers whether four Justices are likely to

vote to grant certiorari if the court of appeals ultimately rules

against the applicant; whether five Justices would then likely

conclude that the case was erroneously decided below; and whether,

on balancing the equities, the injury asserted by the applicant

outweighs the harm to the other parties or the public.

See San

Diegans for the Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S.

1301, 1302 (2006) (Kennedy, J., in chambers).

Here, all of those

factors counsel strongly in favor of a stay.

The district court

lacked any sound basis in the ESA to vacate NWP 12 and enjoin the

Corps from relying on it to authorize the Keystone XL project.

And compounding that error, the court’s order is vastly overbroad

20

by extending beyond the Keystone XL pipeline to the construction

of every new oil and gas pipeline in the country.

1.

If the Ninth Circuit affirms the district court’s order,

this Court is likely to grant review. The district court initially

vacated NWP 12 and enjoined the Corps from relying on it to

authorize dredge or fill activities in covered waters anywhere in

the country.

respondents

The court did so despite the express disclaimer by

of

any

request

for

vacatur

or

injunctive

relief

extending beyond the Keystone XL project, and despite the failure

by respondents to even assert, let alone demonstrate, any Article

III injury that would support the sweeping relief the court granted

concerning other utility lines.

When the government identified

those errors in the course of requesting a stay pending appeal,

the court backtracked, but only in part -- amending its prior order

to limit the vacatur and nationwide injunction of NWP 12 to “the

construction of new oil and gas pipelines.”

App., infra, 42a.

Whether the Corps violated the ESA by re-issuing NWP 12

without programmatic consultation, and whether the district court

erred in granting a nationwide vacatur and injunction of the permit

as to the construction of all new oil and gas pipelines, are

questions

of

exceptional

importance

that

would

warrant

this

Court’s review. Sup. Ct. R. 10(c). The district court’s erroneous

finding of an ESA violation led it to partially vacate and enjoin

a permit that has been in effect in some form for more than 40

21

years and that the Corps relies on annually to approve thousands

of

projects.

The

court’s

order

would

frustrate

administration of its permitting programs.

the

Corps’

It also threatens to

cause immediate and ongoing harm to the Nation’s energy industry

and to the many public and private entities and individuals who

rely on oil and gas pipelines.

More

broadly,

this

case

See pp. 34-37, infra.

presents

in

stark

fashion

the

recurring and important question whether a district court may award

equitable remedies that extend beyond the injuries asserted by the

plaintiff.

Members of this Court have expressed concerns about

the rising tide of “universal” injunctions, issued by single

district court judges to halt the application of a challenged

federal policy to anyone, anywhere.

DHS v. New York, 140 S. Ct.

599, 600-601 (2020) (Gorsuch, J., concurring in the grant of stay);

see Trump v. Hawaii, 138 S. Ct. 2392, 2424-2425 (2018) (Thomas,

J., concurring).

Here, the district court entered a nationwide

injunction at the behest of plaintiffs who had repeatedly told the

court that they were not seeking one (until changing course after

the court entered the very relief they had disclaimed).

And the

court’s order had the effect not only of granting relief to some

non-parties, who perhaps could have but had not challenged other

pipelines,

but

also

of

harming

other

non-parties

--

namely,

pipeline sponsors who had relied on the continuing availability of

NWP 12 for activities related to pipeline construction.

The

22

constitutional, statutory, and equitable issues arising from such

an extraordinary order would warrant this Court’s review.

2.

A stay is also warranted because, if the Ninth Circuit

affirms the district court’s order and this Court grants review,

there is at least a “fair prospect” that this Court will vacate

the order in whole or in part.

Lucas v. Townsend, 486 U.S. 1301,

1304 (1988) (Kennedy, J., in chambers).

The Corps did not violate

the ESA in re-issuing NWP 12 in 2017; therefore, the district court

lacked any basis to vacate the permit and enjoin the Corps from

relying

on

it

with

respect

to

Keystone

construction of new oil and gas pipelines.

XL,

let

alone

all

At a minimum, this

Court would likely narrow the scope of the vacatur and injunction.

a.

“Article III of the Constitution limits the exercise of

the judicial power to ‘Cases’ and ‘Controversies.’”

Town of

Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017)

(citation omitted).

Under that limitation, a federal court may

entertain a suit only by a plaintiff who demonstrates Article III

standing, including the “[f]oremost” requirement of “injury in

fact.”

Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018).

And any

remedy awarded to the plaintiff “must be ‘limited to the inadequacy

that produced his injury in fact.’”

Id. at 1930 (quoting Lewis v.

Casey, 518 U.S. 343, 357 (1996)) (brackets omitted). The plaintiff

must demonstrate Article III standing “for each form of relief

that is sought.”

Town of Chester, 137 S. Ct. at 1650 (citations

23

omitted).

beyond

Thus, the Court has narrowed injunctions that extended

preventing

lawsuit.”

specific

harms

to

“any

plaintiff

in

th[e]

Lewis, 518 U.S. at 358.

Principles of equity reinforce those limitations.

A court’s

equitable authority to award relief is generally confined to relief

“traditionally accorded by courts of equity” in 1789.

Grupo

Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527

U.S. 308, 319 (1999).

And it is a longstanding principle that

injunctive relief may “be no more burdensome to the defendant than

necessary to provide complete relief to the plaintiffs.”

Califano

v. Yamasaki, 442 U.S. 682, 702 (1979); see Hawaii, 138 S. Ct. at

2427 (Thomas, J., concurring) (explaining that English and early

American “courts of equity” typically “did not provide relief

beyond the parties to the case”).

In a properly certified class

action, relief may extend to the class.

702.

And

some

injuries

can

be

incidentally benefit nonparties.

v.

Brinkman,

remedy).

433

U.S.

406,

414

Califano, 442 U.S. at

remedied

only

in

ways

that

See, e.g., Dayton Bd. of Educ.

(1977)

(school-desegregation

But even in those cases, courts are adjudicating only

the rights of the parties before them, not passing as a general

matter on government policies to the extent they address the rights

and obligations of other parties.

The district court’s order cannot be reconciled with those

principles.

If a federal court may not award a remedy actively

24

sought by a plaintiff unless the plaintiff demonstrates that the

remedy is necessary to redress the particular injury that the

defendant’s action caused the plaintiff to incur, see Town of

Chester, 137 S. Ct. at 1650 (collecting cases), then a fortiori

the court cannot award a remedy that the plaintiff expressly

disclaims -- as occurred here.

And even if respondents had

requested vacatur and an injunction beyond Keystone XL, the court

would

have

had

no

basis

for

ordering

such

relief

because

respondents lacked standing and any basis cognizable in equity to

challenge the application of NWP 12 to any other pipelines.

At

summary judgment, for example, respondents submitted more than a

dozen declarations, only one of which even referred to other

pipelines (which, as the declaration explained, had already been

constructed).

See D. Ct. Doc. 73-2, at 3-4 (Nov. 22, 2019).

To be sure, after the district court vacated NWP 12 and

entered

the

broad

injunction

that

respondents

had

previously

denied seeking, respondents reversed course and supported the

somewhat

narrower

order

that

the

court

ultimately

entered,

targeting “the construction of new oil and gas pipelines.”

infra, 42a.

App.,

Respondents did not, however, rely on the existing

record for that newly conceived remedy; instead, they submitted an

additional 14 declarations purporting to identify harms to their

staff and members from proposed pipelines other than Keystone XL.

Allowing respondents to attempt to backfill the record in that

25

manner was itself improper.

See Summers v. Earth Island Inst.,

555 U.S. 488, 495 n.* (2009) (“If respondents had not met the

challenge to their standing at the time of judgment, they could

not remedy the defect retroactively.”); pp. 27-28, infra.

Respondents’ belated submission was also plainly insufficient

to

support

the

district

court’s

order,

even

as

modified.

Respondents identified only a handful of additional pipelines and

thus fell far short of demonstrating the requisite “concrete and

particularized”

injury,

Gill,

138

S.

Ct.

at

1929

(citation

omitted), with respect to all water-crossing activities associated

with the construction of all new oil and gas pipelines.

to

the

identified

pipelines,

respondents

did

not

Even as

attempt

to

establish that any particular activities in covered waters would

potentially harm endangered species or critical habitat, let alone

that such harms would impact respondents’ asserted interests.

And

two of the other pipelines respondents identified are already the

subject

of

litigation

elsewhere

(although not on ESA issues).

--

including

in

this

Court

See United States Forest Serv. v.

Cowpasture River Pres. Ass’n, No. 18-1584 (June 15, 2020); Gov’t

C.A.

Stay

Mot.

44-45

(collecting

cases).

Thus,

like

global

injunctions generally, the district court’s order threatens to

undercut the “airing of competing [judicial] views.”

DHS, 140

S. Ct. at 600 (Gorsuch, J., concurring in the grant of stay).

26

Respondents contended below that this case is distinguishable

from others involving impermissible nationwide injunctions because

the district court also partially vacated NWP 12 -- an equitable

remedy that respondents argued was, in any event, justified under

the APA.

Resp. C.A. Stay Opp. 46; see id. at 30-47; cf. App.,

infra, 11a.

That contention is unfounded.

reviewing

court

shall

“set

aside

unlawful.

5 U.S.C. 706(2)(A).

agency

The APA states that a

action”

found

to

be

But the only “agency action” that

respondents had Article III standing to challenge was the Corps’

purported use of NWP 12 to verify the Keystone XL project.

See

Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891 (1990) (NWF)

(an APA plaintiff generally must allege “some concrete action

applying [a] regulation to the claimant’s situation in a fashion

that harms or threatens to harm him”).

Moreover, the APA does not

state that a reviewing court must “set aside” a challenged agency

action, like a rule, universally, rather than as applied to the

parties.

Instead, the “set aside” language in Section 706 is best

read to “direct[] the court not to decide [a case] in accordance

with [an unlawful] agency action.”

John Harrison, Section 706 of

the Administrative Procedure Act Does Not Call for Universal

Injunctions or Other Universal Remedies, 38 Yale J. on Reg. Bull.

(Apr. 12, 2020). 3

In short, “[n]othing in the language of the APA”

https://www.yalejreg.com/bulletin/section-706-of-theadministrative-procedure-act-does-not-call-for-universalinjunctions-or-other-universal-remedies/

3

27

requires an unlawful regulation to be enjoined or vacated “for the

entire country.”

Virginia Soc’y for Human Life, Inc. v. FEC, 263

F.3d 379, 394 (4th Cir. 2001).

This Court is likely to set aside

both the district court’s injunction and its partial vacatur of

NWP 12, and both should be stayed pending appeal.

b.

This Court is also likely to vacate the district court’s

order in whole or part because it was entered without fair notice.

See

Fed.

R.

Civ.

P.

65(a)(1);

Granny

Goose

Foods,

Inc.

v.

Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, 415

U.S. 423, 434 n.7 (1974).

Indeed, the court granted the very

remedy -- vacatur and a nationwide injunction of NWP 12 across the

board -- that it had previously assured would not be granted.

Respondents contended below (Resp. C.A. Stay Br. 58-61) that

this error was harmless because the parties had the opportunity to

contest the scope of relief after the fact, which caused the

district court to narrow its vacatur and injunction.

But that

course of events only underscores the irregularity of the order.

After the court had already adjudicated respondents’ failure-toconsult

claim

and

had

granted

sweeping

nationwide

relief,

respondents submitted (and the court relied on) new and untested

declarations

regarding

the

purported

environmental

“large-scale oil and gas pipelines” generally.

20a.

risks

of

App., infra, 19a-

Because respondents made those assertions only in response

to the government’s motion for a stay, no party had a meaningful

28

opportunity to contest them.

(declining

to

consider

See Summers, 555 U.S. at 495 n.*

standing

affidavits

submitted

after

decision as part of opposition to a motion to stay); id. at 508

(Breyer,

J.,

dissenting);

see

also

NWF,

497

U.S.

at

894-895

(affirming exclusion of similarly belated affidavits).

The substance of the district court’s order reflects the

deficient process through which it was crafted.

The order fails

to specify whether it applies to the construction of new crossings

for a pipeline that already exists, which arguably involve “new

* * *

pipeline construction” (App., infra, 21a) but not the

“construction of new

* * *

pipelines” (id. at 40a) -- terms the

court used seemingly interchangeably.

Likewise, although the

order permits “routine maintenance” on “existing NWP 12 projects,”

id. at 42a, it does not define or explain those terms.

Those

oversights are as predictable as they are regrettable. As a result

of the limited nature of respondents’ challenge, the court had

before it no evidence concerning the universe of potential pipeline

activities or the consequences of eliminating NWP 12 as a source

of authorization for them.

For this reason as well, it had no

basis to reach out to vacate and enjoin NWP 12 broadly with respect

to the construction of all new oil and gas pipelines.

c.

Finally, this Court is likely to conclude that the

district court erred in finding a violation of Section 7(a)(2) of

the ESA, 16 U.S.C. 1536(a)(2), and thus in ordering any remedy at

29

all.

Section 7(a)(2) and its implementing regulations do not

require consultation unless an agency at least first determines

that its proposed action “may affect listed species or critical

habitat.”

50 C.F.R. 402.14(a).

The Corps reasonably determined

that, in light of the regulatory scheme and permitting conditions,

the mere re-issuance of NWP 12 itself would have “no effect” on

protected species or critical habitat.

82 Fed. Reg. at 1873.

In doing so, the Corps relied principally on General Condition

18, which requires prospective permittees to give the Corps preconstruction notification of a proposed project “if any listed

species or designated critical habitat might be affected or is in

the vicinity of the activity, or if the activity is located in

designated critical habitat.”

82 Fed. Reg. at 1999.

The “‘might

affect’” threshold is, by design, “more stringent than the ‘may

affect’ threshold” that triggers a consultation requirement under

the ESA.

Id. at 1873.

General Condition 18 thus ensures that the

Corps receives notification of projects that potentially require

consultation, allowing the Corps to determine whether consultation

is in fact required on an activity-specific basis.

And the

prospective permittee may not begin construction until it receives

authorization from the Corps, either because the Corps has made a

“no effect” determination or because any consultation requirement

has been satisfied.

Id. at 1999; see 33 C.F.R. 330.4(f)(2).

30

The district court erred in concluding that the Corps also

had an obligation to consult “at the programmatic level” about the

potential effects of NWP 12 in the abstract.

Programmatic

consultation

about

an

App., infra, 58a.

agency

action

may

be

appropriate when a proposed agency action “provid[es] a framework

for future proposed actions.”

50 C.F.R. 402.02.

But as the FWS

and NMFS guidance cited by the court makes clear, the ESA does not

require consultation for any “framework programmatic action that

has no effect on listed species or critical habitat.”

80 Fed.

Reg. 26,832, 26,835 (May 11, 2015); see App., infra, 52a.

The

Corps made such a “no effect” determination here.

The district court stated that the Corps’ approach failed to

capture the potential effects of NWP 12 “in its entirety.”

infra, 60a.

App.,

But when any particular proposed ground-disturbing

activity triggers a formal consultation requirement, the effects

of the proposed action must be measured against the “environmental

baseline” for the listed species or critical habitat, 50 C.F.R.

402.14(g)(2) and (4) -- a term of art that requires taking account

of “the past and present impacts of all Federal, State, or private

actions and other human activities in the action area,” 50 C.F.R.

402.02.

The regulations also require considering “cumulative

effects,” 50 C.F.R. 402.14(g)(3) and (4), which are defined to

include certain anticipated future State or private activities, 50

C.F.R. 402.02.

In relying on activity-specific review, the Corps

31

therefore did not “circumvent” (App., infra, 58a) any requirement

to

consider

activities.

mere

the

cumulative

impacts

of

NWP

12-authorized

It simply determined, entirely reasonably, that the

re-issuance

of

NWP

12

did

not

trigger

any

consultation

requirement and that it could instead defer consideration of issues

under Section 7 of the ESA to the concrete context of an actual

proposed activity at a specific crossing.

That

approach

does

not

impermissibly

“delegate”

to

non-

federal permittees the duty to determine whether consultation is

required, as the district court asserted. App., infra, 62a. Under

General Condition 18, the Corps requires prospective permittees to

provide it with pre-construction notification of any activity that

“might affect” listed species or critical habitat.

affect”

threshold

deliberately

encompasses

The “might

more

proposed

activities than the threshold for triggering any consultation

requirement

under

the

ESA.

See

p.

11,

supra.

The

latter

determination is always made by the Corps, not by the prospective

permittee.

82 Fed. Reg. at 1955.

A prospective permittee that

fails to comply with General Condition 18 would not be authorized

to undertake the activity at all, 33 C.F.R. 330.1(c), and would be

liable

for

sanctions

for

unpermitted

waters or violations of the ESA.

U.S.C. 1540; 33 U.S.C. 1319.

discharges

into

covered

See 82 Fed. Reg. at 1873; cf. 16

32

General Condition 18 is also far from the only safeguard built

into the regulatory scheme, as the Corps explained in making its

“no effect” determination.

Prospective permittees must provide

the Corps with pre-construction notification for a variety of other

reasons; for example, NWP 12 requires a prospective permittee to

provide such a notice if discharges from a proposed activity will

“result in the loss of greater than 1/10-acre of waters of the

United States.” 82 Fed. Reg. at 1986. Historically, approximately

80%

of

activities

authorized

construction notification.

by

NWP

12

Moyer Decl. ¶ 3.

have

required

pre-

And when the Corps

receives a pre-construction notification, it may determine that

consultation is required even if the notification was not triggered

by General Condition 18.

See 82 Fed. Reg. at 1873.

In addition,

NWP 12 requires that any pre-construction notice for a linear

project identify (and the district engineer review) all the NWPauthorized activities for that line regardless of whether those

other

activities

notice.

would

Id. at 1986.

independently

require

pre-construction

Regional conditions further restrict the

use of nationwide permits in order to protect listed species and

critical habitat.

Id. at 1873; see 33 C.F.R. 330.5(c). 4

The Corps engaged in voluntary consultation before the

issuance of NPW 12 and other nationwide permits in 2012, and NMFS

responded by issuing a biological opinion in 2014 finding “no

jeopardy” from those permits. See pp. 10-11, supra. FWS did not

issue a biological opinion in that process. The Corps maintained

the feasible protective measures from the NMFS opinion when it reissued NWP 12 and other nationwide permits in 2017.

4

33

Lastly, the district court’s order lacks any sound basis in

the record.

consultation,

In ruling that Section 7(a)(2) required programmatic

the

court

relied

on

highly

generalized

prior

statements by the Corps about the potential effects of NWP 12authorized activities on the environment and on two declarations

submitted by respondents.

See App., infra, 53a-57; see, e.g., id.

at 54a (relying on past statements by the Corps “examin[ing] the

effect of human activity on the Earth’s ecosystems”).

None of

those

regional

materials

discussed

General

Condition

18;

permitting conditions, including the actual regional permitting

conditions that exist for the listed species addressed in the

declarations; or the other provisions of NWP 12 that may trigger

site-specific

review.

And

neither

declaration

addressed

any

proposed pipeline other than Keystone XL.

3.

The balance of equities favors a stay.

The district

court’s order causes direct, irreparable injury to the interests

of the government and the public -- which “merge” here, see Nken

v. Holder, 556 U.S. 418, 435 (2009).

And it does so for little if

any countervailing benefit to respondents’ asserted interests.

At

a minimum, the lopsided balance of stay equities demonstrates that

the order is overbroad and should be stayed to the extent it

reaches beyond the Keystone XL project itself.

See, e.g., United

States Dep’t of Def. v. Meinhold, 510 U.S. 939, 939 (1993).

34

a.

The district court’s order eliminates the ability of the

Corps, State and local governments, and private parties to rely on

NWP 12 for the “construction of new oil and gas pipelines” anywhere

in the country.

App., infra, 42a.

NWP 12 has been in effect in

some form since 1977, and the Corps relies on it annually to verify

thousands of projects.

37,146.

See Moyer Decl. ¶¶ 3, 9; 42 Fed. Reg. at

Since the current version of NWP 12 went into effect in

2017, the Corps has verified more than 38,000 pre-construction

notifications under it.

Moyer Decl. ¶ 4.

Based on recent data,

the Corps estimates that approximately 58% of the verifications

that it issued under NWP 12 since the 2017 re-issuance were for

oil and gas pipeline activities.

Id. ¶ 5.

The Corps further

estimates that approximately 3200 pre-construction notifications

for such activities were pending as of the district court’s April

15 order and that, but for the order, the agency would have gone

on

to

authorize

more

than

16,000

such

activities

expiration of the current version of NWP 12 in 2022.

until

the

Ibid.

To be sure, some portion of the projects described above do

not involve “construction of new

activities

that

could

* * *

reasonably

be

pipelines” or involve

considered

“routine

maintenance, inspection, [or] repair activities on existing NWP 12

projects.”

App., infra, 42a.

But the district court did not

define or elaborate upon those terms.

The order’s lack of clarity

is itself an additional reason to grant a stay.

35

At times, the district court suggested that it was addressing

primarily

“large-scale”

pipelines

crossings of navigable waters.

involving

“hundreds”

App., infra, 19a-20a.

of

In fact,

the court’s order contains no such limiting language.

By its

terms, the injunction applies regardless of the length or diameter

of the pipeline or its intended purpose.

The order thus operates

to prevent authorization under NWP 12 even of the construction of

new small-scale pipelines that may impact less than 1/10 an acre

of waters of the United States, such as the installation of a new

community gas line for residential heating.

See Moyer Decl. ¶ 7.

The district court dismissed the Corps’ practical concerns in

light of the “continued availability of the ordinary individual

permit process.”

require

a

extensive,

App., infra, 20a.

resource-intensive,

site-specific

But “[i]ndividual permits

case-by-case

documentation,

review,

public

formal determination on the permit application.”

including

comment,

and

a

Moyer Decl. ¶ 8.

Congress authorized the Corps to issue general permits precisely

to “eliminat[e] the delays and administrative burdens” associated

with individual permits, Senate Report 74, for activities having

“minimal” impact, 33 U.S.C. 1344(e)(1). Under the district court’s

order, however, the Corps would instead be required to devote

substantial time and resources to evaluating individual permit

applications

which

in

even

turn

for

would

routine

reduce

pipeline

the

construction

agency’s

“ability

projects,

to

devote

36

appropriate resources to evaluating activities that have greater

adverse environmental effects.” Moyer Decl. ¶ 15. And reassigning

Corps personnel or workloads to address a large new volume of

individual permit applications for oil and gas pipelines would

reduce

the

Corps’

ability

to

process

other

verifications

applications, at least absent new appropriations.

or

Ibid.

If the district court’s order is not stayed, the partial

invalidation of NWP 12 will cause extraordinary project delays.

In 2018, the average time to receive a standard individual permit

from the Corps was 264 days, while the average time to receive an

NWP verification was only 45 days.

Moyer Decl. ¶ 13.

This

disparity does not even account for the additional individual

permit applications that the Corps would be required to process

under the court’s order.

The Corps estimates that, at current

workforce levels, it would take approximately 11 months to process

all of the new applications it anticipates receiving -- if the

personnel familiar with NWP 12 focused solely on new oil and gas

pipeline permit applications and nothing else.

Id. ¶ 16.

And the

project delays would compound in other predictable ways.

For

example, the Clean Water Act generally precludes applicants from

obtaining an individual permit without a state water quality

certification.

See 33 U.S.C. 1341(a)(1). 5

estimated

the

that

certification

process

The State amici below

currently

takes

an

For NWPs, States can provide such certification for the

NWP as a whole. See 82 Fed. Reg. at 2002 (General Condition 25).

5

37

average of 130 days, see States’ C.A. Amici Br. 8, even without

the “surge in workload” that the Corps predicts would occur as a

result of the district court’s order, Moyer Decl. ¶ 17.

Some

proposed activities are also subject to time-of-year limitations

for

construction;

if

such

an

activity

misses

its

seasonal

construction window because of delays in obtaining an individual

permit, the activity may need to be delayed until the following

year.

See id. ¶ 11; NWP 12 Coalition C.A. Br. 14.

As the Corps observed in a decision document for NWP 12, oil

and pipeline construction activities permitted by NWP 12 have

positive local, regional, and national economic impacts; ensure

energy supplies for those served by pipelines; and support jobs

and revenue for employers, including businesses that are not

directly involved in construction but that provide needed supplies

and services.

See Moyer Decl. ¶ 18.

The district court’s order

threatens to undercut those benefits.

b.

The disruptiveness of the district court’s order will

not be offset by any demonstrated environmental benefits.

As

explained above, NWP 12 already contains a number of safeguards to

ensure that environmentally sensitive projects receive additional

review, including a General Condition prohibiting activities that

might affect endangered species or critical habitat.

And by

halting all reliance on NWP 12 to authorize new oil pipeline

construction, the district court’s order may have the perverse

38

consequence of encouraging oil to be transported by other means

that

are

subject

requirements.

to

less

stringent

environmental-protection

See Moyer Decl. ¶ 19; cf. Alexandra B. Klass &

Danielle Meinhardt, Transporting Oil and Gas:

U.S. Infrastructure

Challenges, 100 Iowa L. Rev. 947, 1019-1025 (2015) (discussing

environmental concerns for rail transport).

A stay pending appeal will also not harm any cognizable

equities that respondents may have.

To reiterate, respondents

repeatedly disclaimed any request for broad equitable relief and

sought to vacate and enjoin the use of NWP 12 only with respect to

the Keystone XL project.

Respondents themselves have therefore

effectively acknowledged that a broader remedy is unnecessary to

protect their asserted interests.

At a minimum, respondents would

not suffer any plausible harm from staying the district court’s

order while it is under appellate review.

The additional materials that respondents submitted during

the district-court stay briefing do not show otherwise.

The

pipeline projects beyond Keystone XL that respondents belatedly

purported to challenge have hardly escaped notice.

For example,

respondents’ new declarations repeatedly referred to the Atlantic

Coast Pipeline (which was at issue in Cowpasture River Pres. Ass’n,

supra) and the Mountain Valley Pipeline.

27.

The

Federal

Energy

Regulatory

See D. Ct. Doc. 144, at

Commission

prepared

environmental impact statements for each of those pipelines, one

39

of

which

has

already

been

upheld

by

the

D.C.

Circuit,

see

Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199 (Feb. 19,

2019) (per curiam).

NWP

12

did

not

The Fourth Circuit, by contrast, held that

cover

the

proposed

Mountain

Valley

Pipeline

construction and vacated the Corps’ authorization, see Sierra Club

v. United States Army Corps of Eng’rs, 909 F.3d 635, 655 (2018),

and the Corps thereafter withdrew its authorization of the Atlantic

Coast Pipeline on the same grounds.

in

effect

pending

appeal,

Even if NWP 12 were to remain

therefore,

it

would

not

presently

authorize construction of those two pipelines.

The Permian Highway Pipeline and the Dakota Access Pipeline

-- other projects identified in respondents’ belated declarations,

see D. Ct. Doc. 144, at 27, 32 -- are the subject of ongoing

litigation.

See City of Austin v. Kinder Morgan Texas Pipeline,

LLC, No. 20-cv-138 (W.D. Tex. filed Feb. 5, 2020); Sierra Club v.

United States Army Corps of Eng’rs, No. 20-cv-460 (W.D. Tex. filed

Apr. 30, 2020); Standing Rock Sioux Tribe v. United States Army

Corps of Eng’rs, No. 16-cv-534, 2020 WL 1441923 (D.D.C. Mar. 25,

2020).

Other pipeline projects identified by respondents have

been subject to similarly extensive environmental review.

See,

e.g., Gov’t C.A. Stay App. 176 (Southgate Project).

In short, these other pipeline projects have received and

will continue to receive extensive scrutiny, including in the

courts.

The district court’s nationwide injunction is not only

40

improper under Article III and background equitable principles,

but also serves no additional environmental purpose and is directly

contrary to the comity that should be accorded to the litigation

being conducted in other courts.

Cf. DHS, 140 S. Ct. at 600-601

(Gorsuch, J., concurring in the grant of stay).

Nor, finally, would respondents’ asserted interests be harmed

by a stay of the vacatur and injunction with respect to the

Keystone XL pipeline itself.

The Department of State, with the

Corps’ participation, already engaged in Section 7 consultation

for the Keystone XL project -- leading to a 2013 biological opinion

from FWS, now superseded by an updated 2019 opinion after further

analysis.

See p. 13 n.1, supra; see also State 2019 EIS S.7-16

(noting updated biological opinion).

If the Corps verifies the

pre-construction notifications for Keystone XL that are currently

pending before the agency, respondents will be free to revive their

claims challenging those specific verifications.

CONCLUSION

The district court’s order of April 15, 2020, as amended May

11, 2020, should be stayed pending appeal and, if the Ninth Circuit

affirms the order, pending the filing and disposition of a petition

for a writ of certiorari and any further proceedings in this Court.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JUNE 2020