Briefing in Dakota Access Suit Nearing Completion
- Principal Briefs On Vacating Pipeline Authorizations Filed in Dakota Access Litigation
- Final Decision Expected by Mid September
Yesterday, the Standing Rock Sioux and Cheyenne River Sioux Tribes filed their joint response to the opening briefs filed by Dakota Access and the U.S. Army Corps of Engineers in the current chapter of the Dakota Access litigation. The briefs filed by the Corps and Dakota Access present strong arguments against vacature and, consequently, for maintaining the pipeline in operation while the Corps addresses the deficiencies, which could be completed by end of the year. We still expect a decision by mid September.
As explained in our June 14, 2017 analysis, the U.S. District Court for the District of Columbia ruled on a challenge to the Corps' compliance with the National Environmental Policy Act (NEPA), finding that, although the Corps had "substantially complied with NEPA," it had failed to "adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline's effects are likely to be highly controversial."
In its decision, the court directed the parties to submit written briefs as to whether the authorizations issued to construct the pipeline should be vacated during the pendency of the remand. Such a vacature would result in the shutdown of the pipeline. In accord with the court's briefing order, the Corps and Dakota Access submitted their opening briefs on July 17, addressing the controlling legal precedent that holds that the Corps' authorizations "need not necessarily be vacated" depending on the "seriousness" of the deficiencies and the "disruptive consequences" that would follow vacating the authorizations.
Overview of the Briefings
Both the Corps and Dakota Access argued that vacature would be inappropriate under the legal precedent, in that the identified deficiencies are relatively minor and easily corrected, and that the potential consequences of halting pipeline operations would lead to significant disruptive consequences. In particular, the Corps and Dakota Access briefs asserted that vacature could impose a greater environmental risk than continuing pipeline operations -- because Dakota Access would be forced to ship oil via rail, which could impose greater environmental risks.
In addition, Dakota Access asserted that stopping the pipeline's operation would cause significant economic harm to Dakota Access, as well as to the oil producers and refiners that rely on the pipeline. Dakota Access further asserted that a shutdown of the pipeline would ultimately lead to higher oil prices that would unnecessarily burden the general public. In its brief, the Corps addressed a question that it was unable to answer during the last status conference: How long would it take the Corps to address and correct the deficiencies identified in the June 14 decision? The Corps' brief states that it anticipates that it will complete its review and analysis of the remand issues in four to five months, and that it could conclude the process between late November and December 2017.
The Standing Rock Sioux and Cheyenne River Sioux Tribes' joint brief generally argues that the deficiencies identified by the court are "serious" and "not minor or ministerial," and that any economic harm that might result from vacature should carry little weight with the court, as environmental injuries are "often irreparable." The Tribes also assert that claims of disruption are "unsupported" and "wildly overblown." More generally, the Tribes argue that remanding the deficiencies for correction without vacating the authorizations would endorse the Corps' plan to "treat the remand as a sham proceeding" and that vacatur is necessary to prevent the Corps and Dakota Access from "treating the remand as merely a paper exercise" that would "make a mockery of the National anl Environmental Policy Act."
Pipeline Likely to Remain in Operation
Our view is that the Corps and Dakota Access briefs present strong arguments against vacature and, consequently, maintaining the pipeline in operation while the Corps addresses the deficiencies. Their briefs suggest that the Corps could conduct its review and correction of the identified deficiencies by the end of the year. The Tribes' brief seems to be long on rhetoric and short on substance. Although more clarity will follow opposing briefs and potentially oral argument, the facts and circumstances of the case militate in favor of maintaining the pipeline in operation while the Corps addresses the court's remand. Recent public comments by the lead counsel for the Standing Rock Sioux Tribe suggest that this might be the result; the Tribe's counsel recently noted that "We have an uphill struggle in persuading the court to shut down the pipeline while the remand process is underway...."
Next Steps
The briefing schedule allows each of the parties to submit responses to opposing briefs during the next three weeks. The court has not scheduled an oral argument on these issues, and, if an oral argument is not held, the court could issue its decision on vacature by mid September.