Dakota Access Pipeline Project Update—Corps’ NEPA Analysis Flawed-In Part
Introduction: On June 14, 2017, U.S. District Court Judge Boasberg issued a lengthy Memorandum Opinion granting in part the Standing Rock Sioux Tribe’s (Standing Rock) and Cheyenne River Sioux Tribe’s (Cheyenne River) Motions for Summary Judgment.1 The Dakota Access Pipeline (DAPL) project is a roughly 1200-mile pipeline route that traverses primarily private lands and does not cross any present-day Indian reservations. DAPL does, however, cross federally regulated waters of the United States under the United States Army Corps of Engineers’ (Corps) jurisdiction and crosses under Lake Oahe, a federally regulated lake on the Missouri River that has “special significance for the Standing Rock and Cheyenne River Sioux Tribes.”2 DAPL crosses the Lake 0.55 miles north of the Standing Rock Sioux Reservation. According to the pleadings filed by Standing Rock, and as found by the court in the June 14, 2017 opinion, Standing Rock also has treaty rights in the Missouri and the Lake reserving to the Tribe and its members the right to fish and hunt, and the right to water to the extent necessary to fulfill the purposes of the treaty with the Tribe.3 DAPL began operations on June 1, 2017.
As we have previously reported on November 22 and July 20, Judge Boasberg denied Standing Rock’s motion for preliminary injunction alleging inadequate consultation under the National Historic Preservation Act, and Cheyenne River’s motion for preliminary injunction alleging violations of the Tribe’s right to free exercise of religion under the Religious Freedom Restoration Act. In his June 14 Opinion, Judge Boasberg stated that, while those two legal challenges had not yielded success, the Tribes’ “third shot. . . [at] DAPL’s environmental impact. . . meets with some degree of success.”4 In their third challenge, the Tribes argued that the Corps, to comply with its National Environmental Policy Act (NEPA) obligations, should have prepared an Environmental Impact Statement (EIS), an often lengthy environmental review document, rather than an Environmental Assessment (EA), which is intended to be a “concise” document that briefly provides evidence and analysis to determine whether an EIS is required. Applying NEPA’s “hard look” analysis, Judge Boasberg concluded that while the Corps’ EA was adequate in many respects, the Corps failed to “sufficiently consider the pipeline’s environmental effects” on treaty-based hunting, fishing, and water rights arising from potential oil spills, as opposed to impacts from construction.5
The Corps substantially complied with NEPA “in many areas”: In his June 14 Opinion, Judge Boasberg concluded that the “Corps substantially complied with NEPA in many areas.”6 Specifically, Judge Boasberg concluded that the Corps properly concluded that the risk of an oil spill under Lake Oahe was “low.” He reasoned that the Corps appropriately relied on applicable regulatory standards as part of its NEPA analysis, and that the Corps’ conclusion regarding the low risk of a spill was supported by the record, including a risk analysis conducted by Dakota Access that was derived from criteria set out in a published methodology. The court also relied on the general principle that mere disagreement with an agency’s experts is not enough to demonstrate a NEPA violation. In addition, the court concluded that the Corps adequately discussed cumulative impacts, based on the fact that the EA the Corps prepared to document its NEPA analysis contained an eleven-page discussion of cumulative impacts on eleven types of resources. The court confirmed that the Corps was not required to analyze the impacts from the entire pipeline, but only those impacts from the part of the pipeline subject to federal control or permitting.
The court also upheld the Corps’ alternatives analysis. One point of contention that was highlighted in much of the press about DAPL was the fact that an alternative route north of Bismarck, which would have routed the pipeline further from the Standing Rock reservation, was rejected. Judge Boasberg, however, concluded that the Corps’ alternatives analysis was appropriate, although it was not without flaws. He was persuaded by the fact that the EA “identif[ied] and compar[ed] several features of the two routes as described, [which] easily clears NEPA’s hurdle requiring ‘brief discussion’ of reasonable alternatives.”7
Judge Boasberg also concluded that the Corps’ discussion of construction impacts on Standing Rock’s treaty rights was adequate, as opposed to impacts from an oil spill which he found inadequate as discussed below. The court first framed the treaty rights analysis, rejecting the broad, “existential” approach advanced by Standing Rock, and instead reasoning that the Corps’ analysis properly focused on impacts to resources intended to be protected by the treaty, i.e., water resources, fish, and game. The court noted that the “EA discussed in several places the potential impact of DAPL’s construction” on those treaty resources. The court held that “[b]ecause the EA ‘clearly addressed’ these impacts and concluded that they would either be insignificant or could be mitigated, the Court finds that, in this respect, it was adequate.”8
With so much going right, where did it go wrong?
The Corps did not adequately assess impacts on treaty resources, environmental justice, and the degree to which the Pipeline’s effects could be controversial: While finding much of the Corps’ NEPA analysis adequate, Judge Boasberg concluded that the Corps “did not 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.”9 Each of these conclusions are addressed in turn.
The Corps did not adequately address impacts on treaty resources from an oil spill: While the court concluded that the Corps’ EA adequately analyzed DAPL’s potential impacts on treaty resources from construction of the project, the court held that the Corps did not adequately analyze the impacts on treaty resources with respect to an oil spill. The court acknowledged that the “Corps did not wholly ignore the consequences of a possible oil spill,” even after concluding that the risk of a spill was low. In fact, the court held that the Corps adequately discussed the impacts of a spill on water resources, but “was not similarly attentive” to the potential impacts of a spill on hunting or aquatic resources. The court characterized the Corps’ discussion of the effects of an oil spill on aquatic resources as cursory and without explanation of what the impacts would be. The court also remarked that the EA did not address the impacts of a spill on hunting at all. Yet, as the court noted, Standing Rock had alerted to the Corps to its fish/game concerns in its comments, including the way in which an oil spill could affect game along the shores of Lake Oahe. Ultimately, the court held: “Without any acknowledgment of or attention to the impact of an oil spill on the Tribe’s fishing and hunting rights, despite [the Tribe’s] efforts to flag the issue, the EA — in this limited respect — was inadequate.”10
The Corps’ environmental justice discussion was inadequate: Federal agencies are required to address environmental justice as part of their NEPA obligations.11 As Judge Boasberg stated: “The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations.”12 The court first addressed the limited geographic unit of the Corps’ environmental justice analysis, which, once determined, is compared against the baseline of counties in the general vicinity of the project, to determine whether the project will have a disproportionate adverse effect on minority and low-income populations within the geographical unit. The Corps selected a geographical unit consisting of 0.5-mile radius around the Lake crossing, which in turn identified two census tracts to measure against the baseline. Significantly, one of the counties that the Corps included in the baseline was Sioux County, where the Standing Rock Reservation is located.
The Tribe leveled several arguments against the adequacy of the Corps’ geographic unit. First, the Tribe argued that the Corps’ decision to limit the geographic unit to a 0.5 mile radius of the Lake crossing was arbitrary and capricious, pointing to the fact that the Reservation was just 80 yards beyond the Corps’ imposed 0.5-mile limit, and downstream from the Lake Oahe crossing. The Tribe alleged the Corps’ decision was also arbitrary because the two census tracts within the 0.5 mile radius were mostly upstream of the Lake crossing, with a 98% white population. The Tribe faulted the EA because it compared the two upstream, largely white census tracts to a baseline of three counties that included Sioux County, where the Reservation is, to conclude that the affected area, i.e., the two census tracts, would not have a higher population of minority and low-income people than the baseline, which the Tribe alleged allowed the Corps to dismiss environmental justice concerns.
While acknowledging that identifying the geographic area is entitled to deference, the court was “hard pressed to conclude that the Corps’ selection of a 0.5-mile buffer was reasonable.”13 The court rejected the Corps’ reliance on the scope accepted for a transportation project or a natural-gas pipeline as justification for its 0.5 mile radius, because DAPL involved a crude oil line, and the EA failed to identify any other crude-oil pipeline project for which a 0.5-mile radius had been employed. The court noted that Standing Rock identified two other crude-oil pipeline projects for which a much larger affected area was used to assess environmental-justice impacts, one 14 miles downstream of crossings and one 40 river-miles downstream. The court noted that EPA also criticized the 0.5 mile radius choice, encouraging the Corps to consider a broader scope because of the potential downstream impacts. And, the court again noted the different treatment of construction impacts, as opposed to spill impacts.
Judge Boasberg was not entirely critical of the EA’s treatment of environmental justice. He recounted that the EA acknowledged that the Standing Rock community has a high percentage of minorities and low-income individuals, and could be affected by an oil spill, given the downstream location of the Reservation. But, according to the court, the EA’s statements were not enough. The court pointed to the fact that the EA did not address the “distinct cultural practices of the Tribe and the social and economic factors that might amplify its experience of the environmental effects of an oil spill.”14 The court considered not only downstream domestic drinking water intake systems but also the Tribe’s hunting, fishing, and subsistence gathering activities along the river. The court held that the Corps “needed to offer more than a bare-bones conclusion that Standing Rock would not be disproportionately harmed by a spill.”15
The Corps failed to address contrary scientific data and reports: One factor that agencies are required to consider when assessing whether an EIS is required is whether the effects of the project are likely to be highly controversial. As courts have explained, highly controversial does not mean opposition to a proposed project, but rather means that a substantial dispute exists regarding the size, nature, of effect of the project, as evidenced by contrary scientific evidence or reports that demonstrate a flaw in the agency’s methodology or data. Standing Rock submitted expert reports to the Corps that critiqued the EA’s methodology for considering spill volumes, the data used for river-flow rates, and contended that the EA failed to consider all factors required to conduct a complete risk analysis, among other things. According to the court, the Corps failed to adequately discuss the methodological and data flaws identified by experts in reports submitted to the Corps. The court noted that the Corps’ failure was not necessarily in rejecting the conclusions in the expert reports, but rather the fact that the EA was “devoid of any discussion of the methodological and data flaws identified in the reports.”16 Because the Corps “did not demonstrate that it considered, as the CEQ regulations require, the degree to which the project’s effects are likely to be highly controversial, despite being presented with evidence of scientific flaws,” the court held that it could not “conclude that the Corps made a convincing case of no significant impact or took the requisite hard look.”17
Remedy: The court ordered the Corps to reconsider its environmental analysis on remand, but did not immediately order that DAPL operations cease.18 In so doing, the court acknowledged that the standard remedy in the D.C. Circuit for a NEPA violation is vacatur, i.e., setting aside the approved permit, which in turn would foreclose DAPL from further operations until the Corps complied with the court’s order on remand. The court acknowledged that it has discretion to depart from the standard remedy, based on factors including “the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.”19 Recognizing that whether to vacate, or not, had not been fully briefed, the court ordered the parties to submit briefs on that issue in light of the deficiencies the court found in the NEPA process and the disruptive consequences that would result given that the pipeline is operational.
Take-Away: The DAPL litigation demonstrates the myriad ways a federal approval can be challenged, from consultation under the National Historic Preservation Act, to impacts on treaty rights under NEPA. Judge Boasberg’s June 14 Opinion illustrates how many separate challenges can be advanced against a federal approval, just under NEPA. It also highlights the importance of complying with NEPA’s procedural mandates. As Judge Boasberg noted, NEPA’s requirements are procedural—NEPA does not mandate a particular result and its procedural requirements do not prohibit unwise decisions, only uninformed decisions. Judge Boasberg’s NEPA analysis hews to NEPA’s procedural mandate, both as to the portions of the Corps’ NEPA analysis he accepted and those he did not.20
Consider as an example his discussion of the Corps’ analysis of the potential impacts from construction versus the potential impacts from an oil spill on Standing Rock’s treaty resources. With respect to construction, the court noted that the EA clearly addressed impacts on treaty resources, and then concluded that the impacts would either be insignificant or could be mitigated. Conversely, with respect to the potential impacts from an oil spill on those same resources, the court’s criticism of the EA was that the Corps failed to demonstrate in its EA that it had considered the impacts of an oil spill on the Tribe’s fishing and hunting rights, even after the Tribe alerted the Corps to its concerns. Although he concluded that NEPA’s procedural mandate had not been met with respect to impacts from an oil spill, consistent with NEPA’s requirements that a court not substitute its own judgment for that of the agency, Judge Boasberg did not weigh in on whether an oil spill would, in fact, impact aquatic or game resources, nor did he mandate that the Corps reach a particular decision, i.e., deny the permit. Instead, and appropriately, he left that analysis for the Corps to undertake on remand.
2 Id. *10.
3 Id. *55.
6Id. The court rejected some of Cheyenne River’s additional arguments, including that the Corps failed to adequately consult with it. The court deferred ruling on certain other arguments raised by Cheyenne River. Id. *103-39.
7 Id. *70-71.
8 Id. *59-60.
10 Id. *65-66.
11 See id. *71-73 (discussing federal environmental justice guidance).
12 Id. *81-82.
13 Id. *76.
14 Id. *82.
15 Id. *83.
16 Id. *51.
17 Id. *52.
18 Id. *101-03.
19 Id. *102.
20 Whether Judge Boasberg’s characterizations of the record and his conclusion that the Corps’ EA is, in some ways, deficient, is beyond the scope of this article and the authors offer no opinion on his holdings.
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