Ninth Circuit Rules Lawsuit Over Keystone XL Pipeline Permit Is Moot

In an order on Wednesday, the Ninth Circuit determined that a lawsuit regarding permits for portions of the Keystone XL Pipeline should be considered moot, dismissing the appeal and sending the four lawsuits involved back to the District of Montana.

The order granted the motion from the federal appellants, including the U.S. Army Corps of Engineers and related individuals and government organizations, seeking to vacate previous decisions. The Corps argued in May that the new nationwide permit issued near the end of the Trump Administration supersedes the permit that was contested in these lawsuits. This led the appellate court to determine that “these interlocutory appeals and the underlying claim that is the subject of these appeals are moot.”

The lawsuits are related to Nationwide Permit 12, specifically the 2017 version, but the Corps argued that the issuance of the 2021 Nationwide Permit 12 makes the lawsuits and the appeals moot because the 2017 permit is no longer in use. 

The Nationwide Permit 12, in both versions, is a general utility permit that allows for pipelines to be built over water through a simpler process than receiving an individual permit. Plaintiffs in the lawsuits, the Northern Plains Resource Council, Bold Alliance, Natural Resources Defense Council, Sierra Club, Center for Biological Diversity, and Friends of the Earth, argued that the permit breached various federal laws because more environmental consideration should occur before pipeline is allowed to be built, specifically a consultation with wildlife agencies. 

The plaintiffs opposed the defendant’s argument that the Ninth Circuit appeal was moot, and argued that there are still important questions at issue and that the motion to dismiss the matter did not consider declaratory relief the plaintiffs had been granted by the district court. 

The court’s order dismissed the appeals for lack of jurisdiction, but did not state an opinion regarding if the underlying cases are moot. Instead, the Ninth Circuit left that decision to the district court to address after the remand. The Ninth Circuit did not vacate any of the District of Montana opinions, and noted that it could address that portion of the appellants’ arguments. 

The plaintiffs are represented by their own lawyers and Bechtold Law Firm, the Corps and other defendants are represented by the U.S. Department of Justice.