The Nickel Report

Despite oil already flowing through the pipeline, federal litigation involving the controversial Dakota Access Pipeline (DAPL) took another turn last week when partial summary judgment was granted to tribes challenging the adequacy of the US Army Corps of Engineers’ review of DAPL under the National Environmental Policy Act (NEPA) and other statutes. Two tribes, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, filed suit in July 2016 attempting to block construction of the last remaining segment and operation of DAPL. As sometimes is the case, agency approvals came faster than the court’s opinion, and without a stay of proceedings DAPL began operating in early June 2017. Having granted partial summary judgment, the court did not require pipeline operations to cease, instead delaying the question of an appropriate remedy until after further briefing by the parties.

In a lengthy opinion issued on June 14, 2017, Judge James E. Boasberg of the United States District Court for the District of Columbia noted that the Corps “substantially complied” with NEPA in many areas of its analysis. Nevertheless, the court found deficiencies in the Corps’ consideration of the “highly controversial” effects of the pipeline’s operation: the potential impacts of an oil spill from the pipeline regarding environmental justice and tribal fishing and hunting rights. The court remanded the matter to the Corps for further analysis of these issues, ruling against the tribes on all their other claims. The opinion touches on several significant issues with respect to agencies’ NEPA obligations for pipeline projects generally and oil pipelines in particular, including:

• Judicial “Flyspecking” of the NEPA Process. The court reiterated important DC Circuit precedent that its role is to determine the adequacy of an agency’s action using a rule of reason rather than search for any deficiency, no matter how minor. This limited role thus only leads to overturning an agency’s decision if the decision was arbitrary, capricious, or an abuse of discretion.
• “Highly Controversial” Effects. The court found that the Corps failed to sufficiently evaluate the degree to which the effects of the proposed action (i.e., the pipeline’s crossing of Lake Oahe, a reservoir created by a Corps dam on the Missouri River) on the quality of the human environment are “likely to be highly controversial”—not measured by newsworthiness or the existence of opposition, but instead by whether a substantial dispute exists regarding the size, nature, or effect of the permit action. The court referenced expert reports submitted to the Corps concerning the likelihood and consequences of an oil spill as evidence of identified “methodological and data flaws” in the environmental assessment (EA) that were “wholly ignore[d]” by the Corps.
• Spill Impacts on Tribal Hunting and Fishing Rights. The court also found deficiencies in the Corps’ analysis of project effects, including a potential spill, on tribal members’ treaty rights to water, hunting, and fishing on reservation land because, while the EA discussed the effects of pipeline construction, it said nothing about the effects of a spill on tribal rights once the pipeline became operational.
• Environmental Justice. The court considered the propriety of the Corps’ decision to define the geographic unit for its environmental justice (EJ) analysis as a half-mile radius around the Lake Oahe crossing, finding that such a narrowly focused EJ inquiry was insufficient to discharge the Corps’ EJ responsibilities under NEPA. In defending this delineation, the Corps relied on the fact that a half-mile was the buffer typically used for transportation and natural gas pipeline projects. The court rejected this justification as reasonable, however, noting that “DAPL is neither a transportation project nor a natural-gas pipeline; it is a crude-oil pipeline” and that it was thus improper for the Corps to restrict its EJ analysis to such a limited geographical area.
• Remedy for NEPA Violations. Turning to the question of remedy for the identified NEPA violations, the court noted that the Administrative Procedures Act requires courts to “hold unlawful and set aside” arbitrary and capricious agency action and, under DC Circuit precedent, the standard remedy for NEPA violations is vacatur. In this case, applying the “standard remedy” would mean vacating DAPL’s permits and easements, forcing it to cease operations until the Corps fully complied with NEPA requirements. The court noted its discretion to depart from the presumptive remedy of vacatur, however, in light of its potentially “serious consequences” and ordered further briefing on whether to do so.

To learn more about Pipeline Law, click here to visit The Nickel Report's sister site.