A Court-Side Seat: NWP 12 and the Dakota Access Pipeline Easement Get Forced Vacations, while a Potential Violation of the Eighth Amendment Isn’t Going Anywhere

Pipeline photo

A report on several recent decisions.

August 10, 2020
Anthony B. Cavender - Gravel2Gavel

Here’s a report on several new decisions made over the past few days.

U.S. SUPREME COURT

U.S. Army Corps of Engineers v. Northern Plains Resources Council
On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation.

FEDERAL COURTS OF APPEAL

Vega, et al. v. Semple (The U.S. Court of Appeals for the Second Circuit)

On June 29, 2020, the court refused to dismiss a putative class action by past and present inmates of Connecticut’s Garner Correctional Institution who alleged that state correctional officials exposed them to excessive amounts of radon gas in violation of the Eighth Amendment. These officials are alleged to have been “deliberately indifferent” to inmate safety. A 1993 Supreme Court decision, Helling v. McKiney, clearly established the law in this area, and the Garner facility opened in 1992. The defense clams of limited immunity as to federal law violations were rejected.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com



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