Revisiting and Updating the Dakota Access Pipeline Controversy

Federal Court Orders U.S. Army Corps of Engineers to Prepare An Environmental Impact Statement[1]

 

In a March 25, 2020 decision, issued over two and a half years after his remand of the Corps’ permitting approval authorizing construction of an oil pipeline under Lake Oahe, and after further NEPA compliance work and continued sparring between the parties, U.S. District Judge Boasberg ordered the Corps to prepare an Environmental Impact Statement (“EIS”), the most robust of NEPA compliance requirements.  Judge Boasberg found the Corps’ permitting action is “significant,” thus triggering an EIS, because it the project is “highly controversial,” particularly with respect to four unresolved scientific controversies. The court is now considering whether to vacate the Corps’ permit, which if ordered, would require shutdown of pipeline operations pending EIS completion.

Background and Introduction

In 2017, during the well-publicized flurry of activity on the ground and in the courthouse, U.S. District Judge James Boasberg dealt a series of defeats to plaintiff Indian Tribes in Standing Rock Sioux Tribe, et al. v. U.S. Army Corps of Engineers, Civil Action No. 16-1534 (JEB) (D.D.C.), in their challenges to the U.S. Army Corps of Engineers’ (“Corps” or “USACE”) environmental and cultural resources compliance efforts associated with permitting construction of the Dakota Access pipeline (“DAPL”) through North Dakota and specifically under the Missouri River at Lake Oahe.  After rejecting efforts based on cultural resources and religious freedom grounds to stop pipeline construction, and after construction had been completed and the pipeline was operational, Judge Boasberg ruled that the Corps’ National Environmental Policy Act (“NEPA”) compliance work, based on an Environmental Assessment (“EA”), was flawed. See 255 F.Supp.3d 101 (2017) (“Standing Rock III”).  The court remanded the matter to the Corps and ordered the Corps to address certain shortcomings in the Corps’ NEPA analysis, while allowing the pipeline to continue to operate.

The Remand and the Court’s Further Opinion: The “Highly Controversial” Significance Factor.

Eighteen months after Judge Boasberg’s remand to the Corps and following a number of further skirmishes amongst the parties, the Corps completed its remand work in February 2019.  And, the parties followed with motions for summary judgment based on the record the Corps developed during the remand effort.   Following oral argument in March, 2020, the court issued its decision on March 25, 2020.

Applying recent U.S. Court of Appeals for the District of Columbia guidance from National Parks Conservation Ass’n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019)(“Semonite”), Judge Boasberg focused on the “significance” of environmental impact that may result from pipeline construction and operation – an inquiry examining the “context” and “intensity” of the proposed federal action. Slip Op. at 3 (citing 40 C.F.R. § 1508.27).[2]  Of the 10 “intensity” factors, any one of which may trigger the need for an EIS, see Semonite, 916 F.3d at 1082, Judge Boasberg focused on “the degree to which the effects on the quality of the human environment are likely to be highly controversial.”  Slip Op. at 3-4(quoting 40 C.F.R. § 1508.27(b)(4)) (emphasis added).

The court focused first, as noted above, on the question of “significance” and the proposed pipeline’s “context” and “intensity.”  The fourth factor identified in the Council on Environmental Quality’s (“CEQ”) “intensity” regulation, see 40 C.F.R. § 1508.27(b)(4), requires consideration of “[t]he degree to which [the project’s] effects on the quality of the human environment are likely to be highly controversial.” See Slip Op. at 13 (quoting 40 C.F.R. § 1508.27(b)(4)).  According to the court, “Effects are ‘controversial’ where ‘substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.’” Slip Op. at 13 (quoting Town of Cave Creek v. F.A.A., 325 F3d 320, 331 (D.C. Cir. 2003)(emphasis added by Judge Boasberg)).  Thus, the court did not consider “the significant public protests near Lake Oahe” as transforming the Corps’ consideration of the pipeline permitting and approvals “into a highly controversial action within the meaning of 40 C.F.R. § 1508.27(b)(4).”  Something more is required.

Judge Boasberg said: “This ‘something more’ is often ‘scientific or other evidence that reveals flaws in the methods or data relied upon by the agency in reaching its conclusions.’” Slip Op. at 13 (quoting WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 81 (D.D.C. 2019)).  The court had noted in its June 2017 opinion that the Corps had not responded sufficiently to certain expert critiques of the Corps’ EA, and that failure was “one of the issues necessitating remand.” Slip Op. at 14.

Judge Boasberg’s rationale drew on Semonite, issued by the D.C. Circuit during the remand.  There, the Corps had concluded that power line construction through historic Jamestown did not require an EIS for NEPA compliance. See Semonite, 916 F.3d at 1078-80.  Various federal agencies and non-governmental organizations, however, “identified what they viewed as serious flaws in the Corps’s methodologies.” Id. at 1080.  As Judge Boasberg noted, the D.C. Circuit concluded the power line project was “highly controversial,” ordered the preparation of an EIS, and ruled that project construction “must be halted while the Corps prepared an EIS – because there was ‘consistent and strenuous opposition, often in the form of concrete objections to the Corps’ analytical process and findings, from agencies entrusted with preserving historic resources and organizations with subject matter expertise.’” Slip Op. at 13 (quoting Semonite, 916 F.3d at 1086).

In Semonite, the Corps argued that it acknowledged and tried to address concerns raised.  The D.C. Circuit rejected that argument, stating it “missed the point,” and added: “The question is not whether the Corps attempted to resolve the controversy, but whether it succeeded.  Given that many critical comments . . . post-dated [the Corps’ EA revisions], the Corps obviously failed.” Slip Op. at 13 (quoting Semonite, 916 F.3d at 1085-86) (emphasis added by Judge Boasberg)).

Perhaps surprisingly, in the Standing Rock case, the Corps’ counsel argued to Judge Boasberg that Semonite does not control, claiming again that “considering” was sufficient.  The Corps sought to distinguish Semonite based on the fact that there federal agencies raised objections, and that in Standing Rock, there were no federal agencies standing in opposition to the Corps’ methods.  Judge Boasberg rejected the Corps’ distinction, noting that both the Department of the Interior and the U.S. Environmental Protection Agency, during the Obama Administration, had expressed concerns about the Corps’ methodologies and the project’s potential environmental impacts.  Moreover, the court rejected the Corps’ apparent or implicit contention that the complaining Tribes and their experts were more like NGOs than governmental agencies.  With what seems like serious restraint, Judge Boasberg reminded the Corps that Indian Tribes are sovereign nations, and that their comments were prepared not only by third-party consultants but also by “their own relevant governmental departments.” See Slip Op. at 15-16.

Specific and Important “Unresolved Scientific Controversies”

The court identified four points of controversy that establish “unresolved scientific controversy” and demonstrate the “necessity of an EIS.” Slip Op. at 18.  Without getting too much into the judge’s detailed analysis, the four areas of controversy are:

  1. Leak-Detection System Shortcomings: Standing Rock and Cheyenne River Sioux Tribes both expressed serious concerns regarding the proposed leak-detection systems.  The court commented that the Corps “failed entirely to respond to the 2012 PHMSA [Pipeline and Hazardous Materials Safety Administration] study that indicated an 80% failure rate in the type of leak-detection system employed by DAPL.” Slip Op. at 20.
  1. Failure to Properly Consider the Operator’s Safety Record: The critique of the Corps’ here “was that any analysis of the risk or magnitude of a spill for a certain pipeline should take into account the performance history of its operator.” Slip Op. at 22.  For example, “‘[l]eak detection estimates to be realistic or scientific need to be based on actual historic performance data.’” Id. (quoting Standing Rock remand report).   The court observed in this instance that the “operator’s history did not inspire confidence,” and later added that “an operator’s practices might affect the risk of a spill, length of detection time, and speed of a response.” Id. at 22-24.
  1. Failure to Consider Harsh Winter Conditions: According to the Tribes’ expert, freezing temperatures and conditions will affect emergency responses.  The EA did not quantify how various factors – shorter daylight hours, slower working conditions due to cold and heavy clothing, need for more breaks, complications in clean up posed by ice, etc. – would impact response times.  Id. at 24-25.  As with the other items identified, the court concluded that the Corps did not adequately address this issues or resolve the scientific controversy.
  1. Erroneous Worst-Case Discharge Calculations in Spill Impact Analysis: The Corps used a worst-case discharge calculation in its analysis, based on a PHMSA regulation.  The Corps’ inputs to the PHMSA formula, however, were subject to extensive expert criticism, criticism the Corps did not adequately address or resolve. Inputs to the formula were not realistic (or “worst-case”) as they related to leak detection time, pipeline pump shutdown time after detection, and consideration of the impact of adverse weather conditions. Id. at 26-34.   

Because the Corps failed to resolve the controversies associated with these points, Judge Boasberg concluded the Corps “violated NEPA by determining and EIS was unnecessary even though one of the EIS-triggering factors was met.”  Id. at 35.  The court observed that in this case “there is considerably more than a few isolated comments raising insubstantial concerns.” Id.  Thus, the court remanded the matter to the Corps with orders to prepare an EIS.

Given the remand based on the Corps’ failures discussed above, the court did not address other issues presented by the plaintiff Tribes.

Where to from here?

Following Judge Boasberg’s March 25, 2020 decision, the parties have briefed the question whether the Corps’ approvals for pipeline construction and operation under Lake Oahe should be vacated, requiring cessation of operations and possible removal of the pipeline, the latter a possibility raised by the Corps in its April 29, 2020 Brief Regarding Remedy. See Standing Rock, Case No. 1:16-cv-01534-JEB, Document 507.  As of this writing, the plaintiff Tribes have not submitted their brief on the remedy.

 

Should you have questions regarding this article or the proceedings discussed, please contact Walter Stern.

 

[1] For prior reporting on this case, see: https://www.modrall.com/2016/11/22/dakota-access-controversy-standing-rock-sioux-tribe-v-u-s-army-corps-of-engineers-policy-review-of-federal-governments-tribal-consultation-obligations-and-why-this-matters-to-us/; https://www.modrall.com/2017/04/11/dakota-access-pipeline-project-update/https://www.modrall.com/2017/08/22/dakota-access-pipeline-project-update-corps-nepa-analysis-flawed-part/; and  https://www.modrall.com/2018/06/01/update-on-dakota-access-pipeline-litigation/.  In addition, a more scholarly discussion can be found at:  https://www.modrall.com/2018/01/17/black-snakes-essential-infrastructure-dakota-access-pipeline-standing-rock-sioux-tribe-v-u-s-army-corps-engineers-federal-governments-tribal-consultation-obligations-m/, first published by the Rocky Mountain Mineral Law Foundation. 

[2] 40 C.F.R. § 1508.27 defines the term “significantly” as used in NEPA, with its two fundamental elements, “context” defined in subsection (a) and “intensity” defined in subsection (b).

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