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EEIA, Chamber Urge Appellate Court to Stay Ruling Against Pipeline Permits

EEIA and the U.S. Chamber of Commerce teamed up to jointly file a brief with the U.S. Court of Appeals for the Ninth Circuit urging the Court to stay implementation of the recent Montana federal district court's ruling invalidating Army Corps of Engineers water crossing permits nationwide for all new oil and natural gas pipelines.

The EEIA-Chamber brief was filed in support of an Army Corps of Engineers emergency petition to the appellate court to stay the lower court's ruling pending the outcome of an appeal to the Ninth Circuit Court, expected to be filed soon and on which the court could take several months to decide.

The brief pointed out that the ruling, if allowed to stand, will result in severe disruption to the construction of critical energy infrastructure, the loss of tens of thousands of construction jobs and billions of dollars in economic activity, especially important in the midst of the COVID-19 crisis.

As we discussed in out last Alert, Montana Federal District Court Chief Judge Brian Morris ruled May 11 to invalidate the Corps' blanket project-wide water crossing permits for oil and natural gas pipeline projects, in a case brought against the Keystone XL project. Morris not only ruled against Keystone XL but extended his order to strike down all water crossing permits issued to pipeline projects under the Corps' Nationwide Permit 12 (NWP 12) program, which is used to permit the vast majority of pipeline projects.

Disallowing NWP 12 permits will do nothing to protect endangered species or critical habitat at the same time it threatens to increase consumers' energy costs and impair the reliability of the nation's electric power generation and natural gas distribution grids.

Significantly, the Montana court's decision reflects bias against pipelines in particular. By confining the ruling's coverage to pipelines and allowing other utility projects such as power transmission lines to continue to use NWP 12, the court revealed its true agenda - stopping pipeline projects.

In our opinion this obvious bias is one of several fatal flaws in the lower court's reasoning. We believe it cries out for both a quick decision to stay implementation, and then for reversing the ruling in its entirety when it takes up the appeal.

If the appeal fails at the appellate court level, the next likely step will be an appeal for a stay to the U.S. Supreme Court.

Download Amicus Brief

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