Court Rules DAPL Environmental Assessment Deficient

Yesterday, the District Court for the District of Columbia issued its ruling on several challenges regarding the Dakota Access Pipeline (DAPL) project, and set a status hearing for next week, which we will attend, and ordered the parties to submit written briefs regarding the possible corrective action. As a result, it is possible that the Court could enjoin operation of the pipeline pending final resolution of several deficiencies relating to the U.S. Army Corps of Engineers' Environmental Assessment (EA) for the project. While vacating the authorizations is the presumptive remedy, the court can exercise its discretion to remand the deficiencies to the Corps without vacating the authorizations, which we view as a likely outcome.

The DAPL project has survived several significant challenges since the Standing Rock Sioux Tribe first challenged the U.S. Army Corps of Engineer's approval of the project in July 2016. As we previously reported in a customer note, the Tribe in February, 2017, filed a motion for partial summary judgment, arguing, principally, that the Corps' grant to Dakota Access of an easement to construct the pipeline under Lake Oahe was contrary to law, and that the Corps' decision to issue an Environmental Assessment (EA), rather than an Environmental Impact Statement (EIS), violated the National Environmental Policy Act (Court Rejects Request to Halt Construction of Dakota Access).

Yesterday, Judge James Boasberg, who has been supervising this litigation since its inception, ruled on the Tribe's motion and rejected the Tribe's primary arguments that the Corps' issuance of an EA, and the Corps' grant of the easement, were contrary to law. However, Judge Boasberg found that several discrete elements of the EA were inadequate and did not meet the relevant NEPA requirements.

Although Judge Boasberg found that the Corps had  "substantially complied with NEPA," it had failed to adequately consider:

1. the NEPA requirements regarding the evaluation of an oil spill with respect to the Tribe's treaty rights regarding fishing and hunting;
2. the NEPA requirement to evaluate the degree to which the pipeline's effects would likely be highly controversial; and
3. an Executive Order's requirements to achieve "environmental justice." (A 1994 Executive Order relating to NEPA requires federal agencies to achieve environmental justice by identifying and addressing "disproportionately high and adverse human health or environmental effects" on minority and low income populations.)

The court's opinion notes that the presumptive remedy for such NEPA violations would be to vacate the relevant permits and authorizations, and to remand the deficient issues to the agency for corrective action, while enjoining the permitted activity until the agency corrects the identified deficiencies. Such action would vacate Dakota Access's permits and easement, and enjoin further operation of the pipeline.

But the opinion also notes that the relevant case law provides that, in this case, the court may exercise its discretion to depart from the presumptive remedy and to decide not to vacate the EA, and the corresponding authorizations, pending NEPA compliance. The decision whether to vacate depends on the seriousness of the deficiencies and the disruptive consequences that would flow from vacating the authorizations. To that end, the opinion states that the court will remand the deficient issues to the Corps, and that the parties will submit written briefs regarding the possible vacature during the remand. Judge Boasberg has scheduled a status conference on June 21 to discuss the briefing schedule.

It does appear that Judge Boasberg is somewhat sympathetic to the effects of halting the pipeline's operation, noting, in his opinion, that such a vacature would have "serious consequences that a court should not lightly impose." Certainly, there would be serious, and costly, consequences if the operation of the pipeline were to be halted. For these reasons, although it is possible that DAPL's authorizations could be vacated, we believe that Judge Boasberg will remand the issues to the Corps without vacating the authorizations or enjoining the operation of the pipeline.