Breaking: For Now, Business as Usual for DAPL

This afternoon, Judge Boasberg of the U.S. District Court for the District of Columbia issued a decision in which he held that the Dakota Access Pipeline could continue operating while the U.S. Army Corps of Engineers works to correct the deficiencies identified in the judge's June opinion. But, unexpectedly, Judge Boasberg also ordered the parties to provide additional briefing on the Standing Rock Sioux and Cheyenne River Tribes' (the Tribes) request that the court impose a series of conditions on the continued operation of DAPL under Lake Oahe.


As we reported in June, Judge Boasberg considered a number of challenges by the Tribes related to the Corps compliance with the National Environmental Policy Act (NEPA) regarding the Corps' authorization of the DAPL. In his June decision, Judge Boasberg found certain deficiencies in the Corps' NEPA analysis, but chose not to vacate the Corps' decisions. Rather, the judge ordered the parties to submit briefs addressing whether the court should do so, and thus halt operations of the pipeline while the Corps corrected the identified deficiencies.



In his decision today, Judge Boasberg applied existing precedent that requires application of a two-prong test that considers: (1) the seriousness of the deficiencies in the agency action; and (2) the disruptive consequences of vacating that prior approval. As to the first, Judge Boasberg found that the Corps' NEPA errors were not fundamental or incurable flaws, and that the agency has a significant possibility of justifying its prior determinations on remand. In such cases, Judge Boasberg found that the second prong "is only barely relevant." Therefore, the judge greatly discounted the claims of severe disruption and economic harm put forth by the Corps and Dakota Access if he were to force the pipeline to cease operating. But, he still held that it would not be appropriate to halt operations because of the strong likelihood that the Corps will be able to correct the deficiencies identified in the court's June decision during the pendency of the remand.

In the Tribes' brief, they had asked the judge to consider certain alternative remedies should he decide to not vacate the Corps' decision and stop the pipeline's operations. These requested remedies consisted of two elements: (1) directing DAPL and the Corps to coordinate and finalize, in consultation with the Tribes, emergency response planning at Lake Oahe; and (2) implement Pipeline and Hazardous Materials Safety Administration recommendations to provide a third-party compliance audit and public reporting. In his opinion today, Judge Boasberg noted that the Corps and DAPL did not address the merits of these requests because they both asserted that the judge lacked the authority to enter such an order. Judge Boasberg clearly disagreed and he consequently ordered further abbreviated briefing on this one issue.


So at least for now, DAPL will continue to operate, while the Corps works to address the deficiencies, which, according to the judge, are "not an exercise in filling out the proper paperwork post hoc," in its original NEPA analysis. The court will consider whether to impose these additional conditions while the Corps completes its corrective action, which it now estimates will not be complete until April 2018. As the judge noted, though, even then this won't be the end of this litigation, because after the Corps' work on remand, the parties may well disagree over the sufficiency of the Corps' corrective action. If and when such a dispute arises, the parties will again have the opportunity to address whether the Corps has fulfilled its statutory obligations.