440 F.Supp.3d 1
D.D.C.2020Background
- Dakota Access Pipeline (DAPL) sought an easement to cross under Lake Oahe (Missouri River); the U.S. Army Corps of Engineers issued an Environmental Assessment (EA) and a Mitigated Finding of No Significant Impact (FONSI) and granted the easement in Feb. 2017.
- Standing Rock, Cheyenne River, Oglala, and Yankton Tribes sued, alleging NEPA and NHPA violations and other claims; litigation produced earlier opinions remanding certain NEPA deficiencies to the Corps.
- The D.C. District Court previously found the Corps’ no-EIS decision largely compliant but identified three remandable NEPA defects: (1) failure to analyze whether impacts were “highly controversial,” (2) failure to analyze effect of spills on treaty hunting/fishing rights, and (3) inadequate environmental-justice analysis.
- On remand the Corps responded to extensive expert critiques (from Tribes, EPA, Interior, and consultants) addressing leak-detection reliability, operator safety history, winter-response challenges, and worst-case discharge (WCD) methodology.
- The Court applied D.C. Circuit guidance (notably National Parks Conservation Ass’n v. Semonite) to assess whether remand responses resolved scientific controversies and whether an EIS is required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps adequately addressed expert critiques so that project is not "highly controversial" under NEPA §1508.27(b)(4) | Tribes: Many expert critiques (leak detection, WCD, operator record, winter response) remain unresolved and demonstrate substantial scientific dispute requiring an EIS | Corps/Dakota Access: Corps considered and attempted to address comments on remand; prior agency objections do not control; consultation and revised analyses suffice | Held: Court finds unresolved, substantive scientific disputes; project is "highly controversial" and Corps must prepare an EIS |
| Leak-detection system adequacy | Tribes: PHMSA and expert data show CPM/SCADA systems have low detection rates; system not designed to detect <1% leaks; slow leaks can persist undetected | Corps: DAPL’s CPM (LeakWarn) is "state-of-the-art," capable of 1–3 minute rupture detection; system sensitive to smaller flow changes; training/exercises planned | Held: Corps failed to rebut critiques (ignored PHMSA data; relied on applicant assurances); concerns unresolved |
| Worst-case discharge (WCD) calculation (detection time, shutdown time, adverse conditions) | Tribes: WCD understates release by using optimistic detection/shutdown times, omitting prolonged detection, human/equipment failure, and adverse winter conditions | Corps: WCD used values from applicant and consults; valves close in ~3.9 min and pumps/controls allow ~9 min shutdown; design accounts for low-temp equipment | Held: Corps’ reliance on applicant best-estimates and idealized assumptions does not dispel experts’ criticisms; WCD analysis is unreliable and controversy remains |
| Operator safety record and its role in risk analysis | Tribes: Sunoco/ETP has a poor incident record that should affect spill probability and response assumptions | Corps: Many incidents confined to operator property; Corps lacks an alternative methodology showing operator history would change conclusions | Held: Corps failed to explain why operator history was excluded from risk analysis; issue unresolved |
| NHPA claims (mootness / scope of review) | Tribes: NHPA violations persist; case fits capable-of-repetition-yet-evading-review exception | Corps: Pipeline construction completed; claims moot; no reasonable expectation of recurrence; prior NHPA ruling was correct | Held: NHPA claims are moot and would fail on merits if not; Court declines to revive them |
| Mni Waconi Act breach (Oglala trust duty) | Oglala: Corps breached statutory trust duty by not considering impacts to the Oglala Sioux Rural Water Supply System (OSRWSS) | Corps: Act’s duties are appropriation-limited; OSRWSS intake is 205 miles downstream; remand addressed water-supply impacts | Held: No breach shown; Corps adequately considered OSRWSS and did not render current water supply inadequate |
| Vacatur of easement during EIS preparation | Tribes: Easement should be vacated pending EIS to prevent irreversible harm | Corps/Dakota Access: Vacatur is extreme and would disrupt completed construction and operations | Held: Court did not vacate immediately; ordered supplemental briefing on vacatur applying Allied-Signal factors before ruling |
Key Cases Cited
- National Parks Conservation Ass'n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019) (clarified review for when agency must prepare an EIS under the "highly controversial" factor)
- Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002) (any one §1508.27(b) factor can require an EIS)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (U.S. 1983) (arbitrary-and-capricious standard for agency action)
- Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (U.S. 1983) (NEPA requires consideration of every significant environmental aspect)
- Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (limited role of courts reviewing agency decisions not to prepare an EIS)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (factors to weigh before vacating an agency action)
- Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31 (D.C. Cir. 2015) (limits on agency NHPA obligations and scope of effects to be considered)