Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 1 of 26
`
`Nos. 20-35412, 20-35414, 20-35415, and 20-35432
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`NORTHERN PLAINS RESOURCE COUNCIL, et al.,
`Plaintiffs/Appellees,
`
`v.
`
`U.S. ARMY CORPS OF ENGINEERS, et al.,
`Defendants/Appellants,
`
`and
`
`TC ENERGY CORPORATION, et al.,
`Intervenor-Defendants/Appellants.
`
`
`
`
`
`
`
`
`Appeal from the United States District Court for the District of Montana
`No. 4:19-cv-00044 (Hon. Brian Morris)
`
`
`
`
`FEDERAL APPELLANTS’ MOTION TO
`VACATE DECISIONS BELOW
`
`
`
`
`
`
`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`ANDREW C. MERGEN
`ANDREW M. BERNIE
`Attorneys
`Environment and Natural Resources Division
`U.S. Department of Justice
`950 Pennsylvania Avenue N.W.
`Washington, D.C. 20530
` (202) 514-4010
`andrew.m.bernie@usdoj.gov
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 2 of 26
`
`TABLE OF CONTENTS
`
`INTRODUCTION ..................................................................................................... 1 
`
`BACKGROUND ....................................................................................................... 2 
`
`I. 
`
`II. 
`
`Nationwide Permits ......................................................................................... 2 
`
`2017 version of Nationwide Permit 12 ............................................................ 4 
`
`III. 
`
`Prior Proceedings ............................................................................................. 5 
`
`IV.  Further developments ...................................................................................... 7 
`
`ARGUMENT ............................................................................................................. 9 
`
`I. 
`
`II. 
`
`These cases are moot. ...................................................................................... 9 
`
`No exception to mootness applies. ................................................................ 16 
`
`III.  The Court should vacate the decisions below and remand with
`instructions to dismiss the case. ..................................................................... 18 
`
`CONCLUSION ........................................................................................................ 20 
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`i
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 3 of 26
`
`TABLE OF AUTHORITIES
`Cases 
`Akiachak Native Community v. U.S. Dep’t of Interior,
`827 F.3d 100 (D.C. Cir. 2016) ................................................................ 11, 13, 20
`American Rivers v. National Marine Fisheries Service,
`126 F.3d 1118 (9th Cir. 1997) ...................................................................... 11, 12
`Arizonans for Official English v. Arizona,
`520 U.S. 43 (1997) .......................................................................................... 9, 18
`Board of Trustees of Glazing Health & Welfare Trust v. Chambers,
`941 F.3d 1195 (9th Cir. 2019) ............................................................................. 16
`Center for Biological Diversity v. Lohn,
`511 F.3d 960 (9th Cir. 2007) ............................................................................... 18
`Chamber of Commerce v. Department of Energy,
`627 F.2d 289 (D.C. Cir. 1980) ............................................................................. 16
`City of Mesquite v. Aladdin’s Castle, Inc.,
`455 U.S. 283 (1982) ............................................................................................. 16
`City of San Diego v. Whitman,
`242 F.3d 1097 (9th Cir. 2001) ............................................................................. 20
`Clarke v. United States,
`915 F.2d 699 (D.C. Cir. 1990) ............................................................................. 17
`Deutsche Bank National Trust Company v. F.D.I.C.,
`744 F.3d 1124 (9th Cir. 2014) ............................................................................. 15
`Dilley v. Gunn,
`64 F.3d 1365 (9th Cir. 1995) ............................................................................... 19
`Forest Guardians v. U.S. Forest Service,
`329 F.3d 1089 (9th Cir. 2003) ............................................................................. 17
`Frank v. Minnesota Newspaper Association,
`490 U.S. 225 (1989) ............................................................................................. 10
`
`ii
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 4 of 26
`
`Friends of Santa Clara River v. U.S. Army Corps of Engineers,
`887 F.3d 906 (9th Cir. 2018) ................................................................................. 4
`Grand Canyon Trust v. U.S. Bureau of Reclamation,
`691 F.3d 1008 (9th Cir. 2012) ............................................................................. 11
`Humane Society of U.S. v. Kempthorne,
`527 F.3d 181 (D.C. Cir. 2008) ............................................................................. 19
`Idaho Department of Fish & Game v. National Marine Fisheries Service,
`56 F.3d 1071 (9th Cir. 1995) ........................................................................ 11, 18
`In re Burell,
`415 F.3d 994 (9th Cir. 2005) ................................................................................. 9
`Jordahl v. Brnovich,
`789 F. App’x 589 (9th Cir. 2020) ........................................................................ 20
`
`Ne. Florida Chapter of Associated General Contractors of America v. City of
`Jacksonville,
`508 U.S. 656 (1993) ............................................................................................. 12
`Oregon Natural Resources Council v. Grossarth,
`979 F.2d 1377 (9th Cir. 1992) ............................................................................. 16
`Ozinga v. Price,
`855 F.3d 730 (7th Cir. 2017) ............................................................................... 11
`Princeton Univ. v. Schmid,
`455 U.S. 100 (1982) ............................................................................................. 11
`Public Utilities Commission v. FERC,
`100 F.3d 1451 (9th Cir. 1996) ...................................................................... 18, 19
`Rio Grande Silvery Minnow v. Bureau of Reclamation,
`601 F.3d 1096 (10th Cir. 2010) .................................................................... 11, 12
`Seven Words LLC v. Network Solutions,
`260 F.3d 1089 (9th Cir. 2001) ............................................................................. 10
`Shinault v. Hawks,
`782 F.3d 1053 (9th Cir. 2015) ............................................................................. 10
`
`iii
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 5 of 26
`
`United States v. Munsingwear,
`340 U.S. 36 (1950) .......................................................................................... 2, 19
`Statutes 
`16 U.S.C. § 1536(a)(2) ............................................................................................... 3
`33 U.S.C. § 1344(e)(1) ............................................................................................... 3
`33 U.S.C. §§ 1344(a) ................................................................................................. 2
`
`
`Regulations 
`33 C.F.R. § 330.1(b) .................................................................................................. 3
`33 C.F.R. § 330.4(e)(2) ............................................................................................ 14
`50 C.F.R. § 402.13 ..................................................................................................... 3
`84 Fed. Reg. 13,101 (Mar. 29, 2019) ......................................................................... 9
`86 Fed. Reg. 7,037 (Jan. 20, 2021) ............................................................................ 8
`86 Fed. Reg. 2,744 (Jan. 13, 2021) ............................................................................ 8
`Other Authorities 
`13C Fed. Prac. & Proc. Juris. § 3533.10.1 ............................................................... 15
`
`iv
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 6 of 26
`
`INTRODUCTION1
`
`
`
`Plaintiffs brought this action to prevent the U.S. Army Corps of Engineers
`
`(Corps) from authorizing the construction of portions of the Keystone XL pipeline
`
`under a nationwide utility-line general permit known as Nationwide Permit 12
`
`(NWP 12), which the Corps re-issued in January 2017. Plaintiffs expressly and
`
`repeatedly sought injunctive relief and vacatur directed only at Keystone XL—
`
`seeking vacatur of NWP 12 as applied to verifications that proposed Keystone XL
`
`crossings comported with NWP 12. The district court nevertheless vacated NWP 12
`
`and enjoined its use for all new oil and gas pipelines across the country.
`
`Federal Appellants have explained in their briefs their disagreement with the
`
`district court’s merits holding and overbroad remedies. But these appeals are now
`
`moot. The Supreme Court has stayed the district court’s injunction and vacatur
`
`except as to Keystone XL, and Plaintiffs now “seek to maintain only the Keystone
`
`XL-specific portion of the vacatur.” The potential applicability of NWP 12 to
`
`Keystone XL alone, however, no longer creates an Article III case or controversy,
`
`even if it once might have. The agency action Plaintiffs challenged in this case—
`
`
`1 Montana states that it agrees that the cases are moot as a result of the reissuance of
`Nationwide Permit 12 published in the Federal Register on January 13, 2021 and
`agrees that, on that basis alone, the district court’s decisions should be vacated and
`the cases remanded with instructions to dismiss. Plaintiffs oppose the motion. The
`NWP 12 Coalition and TC Energy reserve taking a position on mootness at this time
`but agree that the district court’s decisions and orders should be vacated if the cases
`are deemed moot.
`
`1
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 7 of 26
`
`the 2017 re-issuance of NWP 12—has been superseded by a new nationwide permit,
`
`which took effect last month. President Biden has also since revoked the 2019
`
`permit authorizing the Keystone XL project proponent (TC Energy) to build and
`
`operate the segment of the pipeline that crosses the U.S.-Canada border. TC Energy
`
`subsequently announced that it was suspending advancement of the Keystone XL
`
`project. The Corps thus could not now verify that the Keystone XL’s proposed
`
`crossings qualify for use under the 2017 NWP 12. And TC Energy submitted an
`
`individual permit application in June 2020 that is awaiting a decision from the Corps.
`
`These appeals are thus no longer justiciable. And even if an Article III
`
`controversy continued to exist, the appeals are at least prudentially moot. The Court
`
`should vacate the district court’s orders as moot and remand with instructions to
`
`dismiss the case. See United States v. Munsingwear, 340 U.S. 36, 39 (1950).
`
`BACKGROUND
`
`Federal Appellants’ opening brief sets forth the legal and factual background
`
`of these cases in detail, but we describe context relevant to this motion briefly here.
`
`I.
`
`Nationwide Permits
`
`The Corps authorizes discharges of dredged or fill material into waters of the
`
`United States through individual and general permits under the Clean Water Act
`
`(CWA). 33 U.S.C. §§ 1344(a), (e). An individual permit generally may be issued
`
`only after the applicant submits site-specific documentation and the Corps then
`
`2
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 8 of 26
`
`provides an opportunity for public comment. But the CWA also authorizes general
`
`permits for categories of activities similar in nature that the Corps determines will
`
`have minimal separate and cumulative adverse environmental effects. 33 U.S.C.
`
`§ 1344(e)(1). Nationwide permits—the type of general permit at issue here—are
`
`“designed to regulate with little, if any, delay or paperwork certain activities having
`
`minimal impacts.” 33 C.F.R. § 330.1(b). Nationwide permits may authorize some
`
`activities without any notification to the Corps, while other activities require pre-
`
`construction notice (PCN) to the Corps and in some cases verification from the
`
`Corps that activities qualify for a nationwide permit.
`
`In issuing nationwide permits, the Corps must comply with applicable
`
`statutes, including the ESA. Section 7(a)(2) of the ESA requires each federal
`
`agency, “in consultation with” the Services, to “insure that any action authorized,
`
`funded, or carried out” by the agency “is not likely to jeopardize the continued
`
`existence of any endangered species or threatened species or result in the destruction
`
`or adverse modification” of designated critical habitat. 16 U.S.C. § 1536(a)(2). If
`
`the so-called “action agency” determines that its action “may affect” endangered or
`
`threatened species (listed species), it must pursue either informal or formal
`
`consultation with the National Marine Fisheries Service and/or the U.S. Fish and
`
`Wildlife Service (collectively, the Services). 50 C.F.R. §§ 402.13, 402.14(b)(1). If
`
`the action agency determines that the proposed action is “likely to adversely affect”
`
`3
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 9 of 26
`
`listed species or designated critical habitat, the agency must engage in formal
`
`consultation. Id. §§ 402.13(a), 402.14(a)-(b). But if the action agency determines
`
`that its action will have “no effect” on a listed species or designated critical habitat,
`
`“the consultation requirements are not triggered.” Friends of Santa Clara River v.
`
`U.S. Army Corps of Engineers, 887 F.3d 906, 913 (9th Cir. 2018).
`
`II.
`
`2017 version of Nationwide Permit 12
`
`The 2017 version of NWP 12 challenged in this case, which is no longer in
`
`effect (the 2017 Permit), applied to “the construction, maintenance, repair, and
`
`removal of utility lines and associated facilities in waters of the United States.” 82
`
`Fed. Reg. 1860, 1985 (Jan. 6, 2017). The 2017 Permit allowed certain activities to
`
`go forward without notification to the Corps but also required prospective permittees
`
`to submit a PCN under certain circumstances seeking verification that a proposed
`
`activity complied with the permit. Among other such circumstances, a PCN was
`
`required if the “discharges [would] result in the loss of greater than 1/10-acre of
`
`waters of the United States.” Id. at 1986. The 2017 Permit was also subject to a
`
`General Condition (applicable to other permits as well) requiring a PCN “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.” Id. at 1999.
`
`The Corps explained that it settled on this “might affect” standard because it is a
`
`4
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 10 of 26
`
`broader standard (encompassing more activities) than the “may affect” threshold
`
`triggering Section 7(a)(2) consultation. Id. at 1873.
`
`III. Prior Proceedings
`
`This suit challenging the 2017 Permit concerns the Keystone XL pipeline. See
`
`Opening Brief at 14-15 (discussing history and scope of the project). Plaintiffs filed
`
`their operative amended complaint on September 10, 2019. See 3-ER-486.2 That
`
`Complaint challenges the Corps’ issuance of the 2017 Permit as violating the
`
`National Environmental Policy Act (NEPA), the CWA, and the ESA. The
`
`Complaint also challenged purported Corps verifications under NWP 12 for
`
`crossings in construction of the Keystone XL pipeline. 3-ER-563-66, 570-72. Those
`
`latter counts are stayed by court order pending further action by the Corps. As the
`
`Corps has explained elsewhere, Plaintiffs’ complaint and summary judgment filings
`
`consistently sought vacatur and injunctive relief limited to Keystone XL, and did not
`
`attempt to establish injury from any other project. See Opening Brief at 15-17.
`
`The district court ultimately granted summary judgment to Plaintiffs on their
`
`ESA claim, ruling that NWP 12 “may affect” listed species or critical habitat and,
`
`therefore, programmatic consultation with the Services was required. 1-ER-47-59
`
`(April 15, 2020 Decision). Rather than merely enjoin and vacate the 2017 Permit as
`
`
`2 Citations to the excerpts of record refer to the excerpts filed with Federal
`Appellants’ Opening Brief on August 26, 2020.
`
`5
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 11 of 26
`
`applied to Keystone XL (as Plaintiffs requested), the district court instead vacated
`
`and enjoined the permit in its entirety. 1-ER-64. In response to Defendants’ motions
`
`for a stay of the district court’s order pending appeal—which, among other things,
`
`pointed out that the order was contrary to Plaintiffs’ numerous representations and
`
`the court’s own prior statements—the district court amended its order but only in
`
`part (May 11, 2020 Decision), vacating NWP 12 “as it relates to the construction of
`
`new oil and gas pipelines” and enjoining its use to authorize “any dredge or fill
`
`activities for the construction of new oil and gas pipelines.” 1-ER-38.
`
`The Corps, TC Energy, and the other two intervenor-defendants in these
`
`appeals (the State of Montana, and the NWP 12 Coalition) appealed and (with the
`
`exception of Montana) filed motions for a stay pending appeal. Two Judges in this
`
`Court denied a stay in a brief order. 2-ER-79. The Corps then sought a stay from
`
`the Supreme Court. In July 2020—without any noted dissent—that Court granted a
`
`stay in substantial part, staying the district court’s order granting partial vacatur and
`
`an injunction of NWP 12 except as it applies to Keystone XL. 2-ER-65. In
`
`recognition of the Supreme Court’s stay order—as well as the Corps’ then-pending
`
`decision on whether to replace the 2017 Permit—Plaintiffs’ answering brief
`
`expressly abandons any defense of the district court’s injunction and vacatur
`
`extending beyond Keystone XL, and declines to address “the arguments about relief
`
`as to” other pipelines as “unnecessary.” Answering Brief at 49.
`
`6
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 12 of 26
`
`IV. Further developments
`
`On June 1, 2020—shortly after this Court denied Defendants’ motion to stay
`
`the district court’s order—TC Energy submitted an application for an individual
`
`permit covering the crossings it had previously sought to be verified under NWP 12.
`
`Attachment A. That application acknowledged the Corps’ inability in light of the
`
`injunction to approve TC Energy’s proposed crossings as verifications under NWP
`
`12. See id. at 13 (page 15 of PDF). The Corps received a completed application in
`
`July 2020.
`
` See https://www.nwo.usace.army.mil/Missions/Dam-and-Lake-
`
`Projects/Oil-and-Gas-Development/KXL/, as visited on May 4, 2021.3 The Corps
`
`held three public hearings on TC Energy’s individual permit application in
`
`September and October 2020, as well as a public comment period that expired on
`
`October 13, 2020. Id. The Corps has not yet reached a decision on the application.
`
`No PCNs for the Keystone XL project are currently pending before the Corps.4
`
`As the Government has previously flagged for the Court, since the filing of
`
`the parties’ opening briefs the Corps finalized a rule re-issuing twelve existing
`
`nationwide permits (including NWP 12) as well as issuing four new ones; that rule
`
`was published in the Federal Register on January 13, 2021. See 86 Fed. Reg. 2744
`
`
`3 TC Energy also submitted PCNs for these crossings in 2017 but it withdrew those
`PCNs in 2019 and the Corps suspended its verification of them. 3-ER-557-58.
`4 On May 3, 2021, TC Energy asked the Corps to suspend consideration of its
`application, stated that it would provide an update on its position in early June, and
`committed not to advance the project during any administrative suspension.
`
`7
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 13 of 26
`
`(Jan. 13, 2021); Federal Reply Brief at 1 n.1. Among other steps, the rule replaces
`
`the 2017 Permit with a new version of NWP 12 (2021 Permit) that is limited to oil
`
`or natural gas pipeline activities; and two new nationwide permits that separately
`
`authorize electric utility line and telecommunications activities as well as utility line
`
`activities for water and other substances. 86 Fed. Reg. at 2769. The 2021 Permit
`
`also adds a new PCN threshold for new oil or natural gas pipelines that are greater
`
`than 250 miles in length, to address stakeholder concerns about cumulative adverse
`
`environmental effects. Id. at 2775-2776. The 2021 Permit continues to require a
`
`PCN for, inter alia, discharges that will result in the loss of greater than 1/10-acre of
`
`waters of the United States. And similar to the 2017 Permit, the 2021 Permit requires
`
`a PCN “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.” Id. at 2869; see also Opening Brief at 10-11 (discussing General Condition
`
`18). The rule has become effective. See ECF No. 147 (March 17, 2021 Notice).
`
`Accordingly, the agency action at issue here (the 2017 Permit) is no longer operative.
`
`In the meantime, President Biden was sworn into office on January 20, 2021.
`
`On his first day in office, President Biden issued Executive Order 13990. See 86
`
`Fed. Reg. 7,037 (Jan. 20, 2021). In Section 6 of that Executive Order, President
`
`Biden revoked a previous 2019 permit (separate from the CWA authorizations at
`
`issue here) issued by President Trump, which had authorized TC Energy to
`
`8
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 14 of 26
`
`“construct, connect, operate, and maintain pipeline facilities at the international
`
`border of the United States and Canada.” 84 Fed. Reg. 13,101, 13,101 (Mar. 29,
`
`2019). In revoking that permit, President Biden found that the Keystone XL Pipeline
`
`“disserves the U.S. national interest” because the “United States and the world face
`
`a climate crisis.” 86 Fed. Reg. at 7,041 (“The Permit is hereby revoked in
`
`accordance with Article 1(1) of the Permit.”). TC Energy then announced that
`
`“advancement of the project will be suspended.” Attachment B at 2.
`
`ARGUMENT
`
`As discussed below, Plaintiffs’ challenge is now moot, and this Court should
`
`accordingly follow the “established practice” when a case becomes moot on appeal
`
`by vacating the district court’s April 15, 2020 and May 11, 2020 Decisions and
`
`orders, and remanding the matter to the district court with instructions to dismiss the
`
`cases. Arizonans for Official English v. Arizona, 520 U.S. 43, 45 (1997).
`
`I.
`
`These cases are moot.
`
`A federal court has jurisdiction only to address actual “Cases” or
`
`“Controversies.” U.S. Const. Art. III, § 2, cl. 1. If a case becomes moot while on
`
`appeal, this Court may not render a judgment on the merits. In re Burell, 415 F.3d
`
`994, 998 (9th Cir. 2005). Under the combined circumstances presented here, these
`
`appeals are now moot.
`
`9
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 15 of 26
`
`Initially, Plaintiffs have mooted out much of these appeals and the underlying
`
`case and orders below by expressly disclaiming almost all of the relief the district
`
`court granted. See Frank v. Minnesota Newspaper Association, 490 U.S. 225, 227
`
`(1989) (case moot in light of concession that plaintiff was willing to forego relief
`
`sought in complaint). As noted above, the district court’s order as modified
`
`prohibited use of NWP 12 for new oil and gas pipeline construction. See supra p. 6.
`
`The Supreme Court stayed the court’s vacatur and injunction except with respect to
`
`Keystone XL, and Plaintiffs then stated in their answering brief that they “seek to
`
`maintain only the Keystone XL-specific portion of the vacatur.” Answering Brief
`
`at 49. Plaintiffs did not seek anything more than that until the district court expanded
`
`the case in its April 15, 2020 Decision. See supra p. 5. But in any event, Plaintiffs’
`
`express disclaimer in this Court moots any controversy extending beyond Keystone
`
`XL. Shinault v. Hawks, 782 F.3d 1053, 1060 n.7 (9th Cir. 2015) (dismissing claim
`
`because plaintiff “disclaimed an injunctive remedy during oral argument”); Seven
`
`Words LLC v. Network Solutions, 260 F.3d 1089, 1097 (9th Cir. 2001) (case moot
`
`notwithstanding theoretical possibility of damages claim where, among other things,
`
`plaintiff did not assert damages claim in initial appellate briefing).
`
`Moreover, any desire Plaintiffs might assert to maintain the district court’s
`
`orders with respect to Keystone XL alone would not create a continuing controversy.
`
`For one, the agency action Plaintiffs challenged in this case—the 2017 Permit—is
`
`10
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 16 of 26
`
`no longer operative. See supra p. 7. As a long line of cases from the Supreme Court,
`
`this Court, and other courts makes clear, a challenge to a regulation or other agency
`
`action at least ordinarily becomes moot when that agency action is repealed or
`
`replaced. See, e.g., Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (per
`
`curiam) (challenge to a university regulation was moot because, inter alia, the
`
`regulation had been substantially amended); Grand Canyon Trust v. U.S. Bureau of
`
`Reclamation, 691 F.3d 1008, 1017 (9th Cir. 2012) (issuance of superseding
`
`biological opinion mooted challenge to previous biological opinion); American
`
`Rivers v. National Marine Fisheries Service, 126 F.3d 1118, 1123 (9th Cir. 1997)
`
`(same); Idaho Department of Fish & Game v. National Marine Fisheries Service,
`
`56 F.3d 1071, 1074 (9th Cir. 1995) (same); Rio Grande Silvery Minnow v. Bureau
`
`of Reclamation, 601 F.3d 1096, 1111-12 (10th Cir. 2010) (same); Akiachak Native
`
`Community v. U.S. Dep’t of Interior, 827 F.3d 100, 113 (D.C. Cir. 2016) (describing
`
`as “a perfectly uncontroversial and well-settled principle of law” that “when an
`
`agency has rescinded and replaced a challenged regulation, litigation over the
`
`legality of the original regulation becomes moot”); Ozinga v. Price, 855 F.3d 730,
`
`734 (7th Cir. 2017) (collecting cases for the proposition that “[w]hen a plaintiff’s
`
`complaint is focused on a particular statute, regulation, or rule and seeks only
`
`prospective relief, the case becomes moot when the government repeals, revises, or
`
`replaces the challenged law and thereby removes the complained-of defect”).
`
`11
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 17 of 26
`
`Consistent with these cases, the replacement of the 2017 Permit alone would
`
`moot Plaintiffs’ challenge under the circumstances here. Even if Plaintiffs’
`
`arguments had merit, this Court could not grant effective relief on Plaintiffs’
`
`challenge to the 2017 Permit because that Permit has been superseded. American
`
`Rivers, 126 F.3d at 1123 (“If an event occurs that prevents the court from granting
`
`effective relief, the claim is moot and must be dismissed.”).
`
`To be sure, Federal Appellants acknowledge that a superseding regulation
`
`may not moot out a case if that regulation “differs only in some insignificant respect”
`
`from the prior regulation. Ne. Florida Chapter of Associated General Contractors
`
`of America v. City of Jacksonville, 508 U.S. 656, 662 (1993). The 2021 Permit,
`
`however, is not a “mirror image” of the 2017 Permit. Rio Grande Silvery Minnow,
`
`601 F.3d at 1111; see also Answering Brief at 49 (noting “significant modifications”
`
`to NWP 12 in then-proposed rule). The 2021 Permit adds new PCN requirements
`
`for large-scale pipelines (i.e., new oil or natural gas pipelines that are greater than
`
`250 miles in length). See supra p. 8. The prospect of such projects was central to
`
`the district court’s vacatur analysis. See 1-ER-15-16 (contending that impacts
`
`“would be particularly severe when constructing large-scale oil and gas pipelines”
`
`and discussing “large-scale oil and gas pipelines [that] may extend many hundreds
`
`of miles across dozens, or even hundreds, of waterways and require the creation of
`
`12
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 18 of 26
`
`permanent rights-of-way”); 2-ER-108 (Plaintiffs’ district court remedies briefing
`
`similarly expressing concern about such large-scale projects).
`
`More fundamentally, in issuing its decision, the district court purported to find
`
`“resounding evidence” in the record of the 2017 Permit’s supposed effect on listed
`
`species, and Plaintiffs defend that ruling on appeal. Answering Brief at 35-40; see
`
`also id. at 17, 41 (Plaintiffs’ discussion of email from a Corps employee in the record
`
`for the 2017 Permit). The government has rebutted Plaintiffs’ and the district court’s
`
`analysis of these issues. See Reply Brief at 17-20, 25-26. But however this Court
`
`might have analyzed these issues—based on the record accompanying the 2017
`
`Permit—simply does not extend to the 2021 Permit. To the extent some of Plaintiffs’
`
`legal arguments might continue to be relevant in any future challenge to application
`
`of the 2021 Permit—such as their claims that programmatic consultation is always
`
`required for the nationwide permit program, or that General Condition 18
`
`impermissibly delegates the Corps’ ESA duties to permittees, see Reply Brief at 8-
`
`15 (responding to these arguments)—Plaintiffs’ remedy is not continuing this appeal
`
`but filing a new suit challenging an application of the 2021 Permit if and when such
`
`an application of the Permit inflicts an actual or certainly impending Article III injury
`
`on them—and indeed, Plaintiffs have attempted to bring such a lawsuit.5 See
`
`Akiachak, 827 F.3d at 113 (“[I]f the agency promulgates a new regulation contrary
`
`
`5 See No. 4:21-cv-00047-BMM, ECF No. 1 (D. Mont. May 3, 2021).
`
`13
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 19 of 26
`
`to one party’s legal position, that party may cure its mootness problem by simply
`
`starting over again by challenging the regulation currently in force.”).
`
`This Court, however, need not determine whether the replacement of the 2017
`
`Permit by itself moots this case. That is because, under the circumstances here, there
`
`is no basis for concluding that the Corps would approve Keystone XL’s proposed
`
`crossings under NWP 12 (either the 2017 version of NWP 12 or the current version).
`
`As noted above, TC Energy submitted an individual permit request after the district
`
`court’s order. See supra p. 7. Moreover, President Biden has since revoked the
`
`cross-border permit for Keystone XL,6 and TC Energy has announced that the
`
`project has been suspended. See supra pp. 8-9. TC Energy’s completed individual
`
`permit application has now been under consideration for approximately ten months.
`
`See supra p. 7. The Corps is not in a position to know TC Energy’s intentions. But
`
`even if TC Energy attempted to pursue verifications under the current version of
`
`NWP 12 even though its individual permit is at an advanced stage of consideration,
`
`the Corps has the discretionary authority to require the applicant to seek
`
`authorization under an individual permit. See 33 C.F.R. § 330.4(e)(2). Although
`
`the Corps will not pre-judge a hypothetical submission, under the circumstances
`
`here—where the Corps has already invested substantial resources to process the
`
`
`6 The United States has moved to dismiss as moot the appeal and case challenging
`the cross-border permit. See Federal Appellees’ Motion to Dismiss Appeal, No. 20-
`36068, Indigenous Environmental Network v. Biden (9th Cir. Feb. 24, 2021).
`
`14
`
`

`

`Case: 20-35412, 05/04/2021, ID: 12101782, DktEntry: 150-1, Page 20 of 26
`
`individual permit application—it is unlikely the Corps would abandon that process
`
`at this late stage. And again, even if this constellation of unlikely events were to
`
`create a new controversy concerning the 2021 Permit’s application to Keystone XL,