By Bridget McDonald
In Standing Rock Sioux Tribe v. United States Army Corps of Engineers, the U.S. Court of Appeals for the D.C. Circuit found that the U.S. District Court did not abuse its discretion in vacating an easement granted by the U.S. Army Corps of Engineers (Corps) for the Dakota Access oil Pipeline to cross under a federally-regulated reservoir that provided Native American tribes with water resources. The appellate court agreed that the Tribes’ concerns about the pipeline’s oil leak detection system presented an unresolved controversy that required the Corps to prepare an environmental impact statement, but reversed the District Court’s order directing the pipeline to shut down and be emptied of oil. [Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 985 F.3d 1032 (D.C. Cir. 2021).]
Facts and Procedural Background
In 1958, the Corps constructed Lake Oahe and the Oahe Dam on the Mississippi River, between North and South Dakota. To construct the dam and reservoir, the Corps flooded over 160,000 of lands owned by the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe. Since its creation, Lake Oahe provides successor tribes of the Great Sioux Nation with water for drinking, agriculture, industry, recreation, and sacred religious and medicinal practices.
The Dakota Access Pipeline (DAPL) stretches nearly 1,200 miles and moves more than half a million gallons of crude oil per day from North Dakota to Illinois. In June 2014, pipeline operator, Dakota Access, sought an easement from the Corps under the Mineral Leasing Act to construct a portion of the pipeline’s pathway under the federally-owned Lake Oahe. In December 2015, the Corps published a draft Environmental Assessment (EA) for the easement, which found that it would yield no significant environmental impacts. Tribes and federal agencies submitted comments on the EA, which contended the Corps insufficiently analyzed the risks and consequences of an oil spill on water resources.
In July 2016, the Corps published its Final EA and a Mitigated Finding of No Significant Impact (FONSI), concluding that with mitigation measures, the Lake Oahe crossing would not significantly affect the quality of the human environment. Several Tribes sued for declaratory and injunctive relief under the National Environmental Policy Act (NEPA). Though the court did not enjoin the project, the Departments of Justice, Interior, and Army immediately issued a joint statement in September 2016, explaining the Corps would not issue the easement and that construction could not move forward until the Army reconsidered its previous decisions.
In January 2017, the Corps published a notice of intent to prepare an EIS for the pipeline easement. Two days later, the Trump administration took office and directed the Corps to expedite the DAPL approvals and consider whether to rescind the notice of intent. The Corps ultimately decided not to prepare an Environmental Impact Statement (EIS), and granted the DAPL easement in early February 2017. After the District Court denied their renewed requests for a preliminary injunction and temporary restraining order, the Tribes moved for summary judgment. The District Court remanded the Corps’ easement decision to address deficiencies in its NEPA analysis, including whether the project’s effects were likely to be “highly controversial.”
In February 2019, the Corps completed its remand analysis and maintained an EIS was unnecessary. The Tribes again moved for summary judgment on grounds that the Corps failed to remedy its NEPA violations. In March 2020, the District Court concluded that, in light of comments pointing to serious gaps in the Corps’ analysis, the easement’s effects were likely to be highly controversial. The court directed the Corps to complete an EIS, and finding that vacatur was warranted, ordered Dakota Access to shut down the pipeline and empty it of all oil by August 2020. Both parties appealed.
The D.C. Circuit’s Decision
The D.C. Circuit Court of Appeals partially upheld the District Court’s decision that the Corps violated NEPA by failing to prepare an EIS and affirmed the vacatur of DAPL’s easement, but reversed the lower court’s injunction ordering Dakota Access to shut down and empty the pipeline of oil.
The Court of Appeals first considered whether the District Court abused its discretion in finding the Corps violated NEPA. Under the statute, consideration of a project’s potentially significant impacts depends on its “context” (regional, locality) and “intensity” (severity of impact). In assessing a project’s “intensity,” NEPA’s operative regulations set forth ten factors that should be considered—triggering any one of the ten requires preparation of an EIS. Here, the Corps’ easement grant concerned whether the “degree to which the effects on the quality of the human environment are likely to be highly controversial.”
‘Highly Controversial’ Agency Decisions and the National Parks Decision
Per the District Court’s separate opinion in National Parks Conservation Association v. Semonite, an agency’s decision is “highly controversial” if “a substantial dispute exists as to the size, nature, or effect of the major federal action.” For example, extensive and repeated criticism from specialized government agencies and organizations suggests a “substantial dispute” exists. In such circumstances, the lead agency must resolve, rather than merely confront, outside criticism; failure to do so will leave a project’s effects uncertain, and thus warrant preparation of an EIS.
The Corps and Dakota Access argued that the District Court applied the wrong legal standard by relying on National Parks. The Corps also contended that it adequately addressed comments that had rendered its easement decision “highly controversial.” The D.C. Circuit rejected both claims. Contrary to the Corps’ summation, the appellate court properly looked at only at whether the agency succeeded in resolving the controversies raised. Here, the Corps’ responses to comments failed to materially address and resolve serious objections to its analysis. The appellate court also rejected the Corps’ position that opposition to the project only came from Tribes and their consultants, rather than from disinterested public officials. Because Tribes are sovereign nations that possess stewardship responsibility over the natural resources implicated by the Corps’ analysis, they are not merely “quintessential…not-in-my-backyard neighbors.” Tribes’ unique role and their “government-to-government” relationship with the United States demands that their criticism be treated with appropriate solitude. For these reasons, the District Court appropriately applied the legal standard set forth in National Parks.
Unresolved Scientific Controversies
Under this lens, the appellate court considered whether four disputed facets of the Corps’ analysis involved unresolved scientific controversies that triggered NEPA’s “highly controversial” factor: 1) DAPL’s leak detection system; 2) DAPL’s operator safety record; 3) impacts of winter conditions on oil spills; and 4) the worst-case-discharge estimate used in DAPL’s spill-impact analysis.
As to each issue, the Tribes had submitted credible expert reports that raised concerns about the efficacy of the Corps’ analysis. Agreeing with the District Court, the D.C. Circuit found that the Corps had failed to adequately respond to the Tribes’ criticism in a manner that actually resolved the controversies raised. For example, by claiming that leaks would “eventually be found,” the Corps failed to adequately address the Tribes’ expert report that found the detection system DAPL intended to use would not detect “pinhole leaks,” which can result in substantial oil spills. Similarly, the appellate court found that the Corps failed to validly explain why it relied on general pipeline safety data, rather than DAPL’s operatory safety record, which Tribes noted was significantly worse than industry averages. As such, the court held that several serious scientific disputes existed, thereby rendering the effects of the Corps’ easement decision “highly controversial.”
The Remedy and Requisite Findings
As to the remedy, the D.C. Circuit agreed that the District Court properly ordered the Corps to prepare an EIS. The appellate court rejected the appellants’ contention that the District Court abused its discretion in vacating the pipeline’s easement in the interim. The Court of Appeals explained that a vacatur was appropriate because the Corps was unlikely to resolve the controversies on remand, having failed to do so on previous remands without vacatur. The District Court also properly considered the disruptive nature of the vacatur, but reasoned that vacating the easement did not yield the same effect as shutting down the project.
While vacating the easement was proper, the D.C. Circuit found that the District Court failed to make requisite findings to issue an injunction ordering the pipeline be shut down and emptied of oil. The District Court’s characterization that an injunction is simply a “consequence of vacatur” subverts Supreme Court precedent requiring an injunction to issue under the traditional test. Here, vacating the easement did not necessitate the shutdown of the pipeline. For these reasons, the appellate court affirmed the order vacating DAPL’s easement and directing the Corps to prepare an EIS, but reversed the District Court’s order directing the pipeline be shutdown.
Conclusion and Implications
Notwithstanding the controversial nature of the Dakota Access Pipeline, coupled with a new administration, the D.C. Circuit’s opinion reaffirms an agency’s responsibilities under NEPA, particularly when a project is “highly controversial.” An agency that receives significant criticism from highly specialized agencies and interested parties must do more than simply responding. Rather, the agency must make concerted efforts to resolve the controversies by amply explaining its decision and the information upon which it relied. The court’s opinion also reaffirms the appropriate remedy for a NEPA violation—an order directing preparation of an EIS and, in certain cases, a vacatur vacating the agency’s decision. However, a vacatur does not automatically necessitate injunctive relief. For an injunction to issue, the court must employ the traditional test to determine whether such relief is appropriate. The D.C. Circuit’s opinion is available online at: https://www.cadc.uscourts.gov/internet/opinions.nsf/3FEF9DA2426A19048525866900562121/$file/20-5197-1881818.pdf
