471 F.Supp.3d 71
D.D.C.2020Background
- The Dakota Access Pipeline (DAPL) crosses under Lake Oahe (Missouri River) near Standing Rock and Cheyenne River reservations; Tribes challenged the U.S. Army Corps of Engineers’ decision permitting an easement under the Mineral Leasing Act.
- Tribes argued the Corps violated NEPA by issuing an Environmental Assessment (EA) and Finding of No Significant Impact instead of preparing a full Environmental Impact Statement (EIS).
- The Corps initially paused, then after an administration change granted the easement; construction completed and oil began flowing.
- After multi-stage litigation and remands, this Court found the Corps’ EA deficient—chiefly because it failed to resolve substantial, expert-raised controversy about environmental effects (including spill risk, leak detection, winter response, and treaty-rights impacts)—and ordered preparation of an EIS.
- The Court solicited briefing on the interim remedy and, applying Allied‑Signal’s vacatur test, concluded vacatur of the easement and cessation/emptying of the pipeline during the remand was required; the pipeline must be shut and emptied within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Corps violated NEPA by declining to prepare an EIS | EA omitted full consideration of significant, controversial environmental effects; an EIS is required | Corps relied on its EA and mitigation commitments as sufficient | Court held Corps violated NEPA; an EIS must be prepared |
| Whether the easement should be vacated during remand (Allied‑Signal inquiry) | Vacatur is presumptive when NEPA requires an EIS and the EA is seriously deficient | Remand without vacatur avoids economic disruption and is appropriate here | Court vacated the easement and ordered shutdown |
| Allied‑Signal factor 1: Seriousness of deficiencies | Deficiencies were substantial and not remediable short of an EIS; little chance Corps can justify EA on remand | Corps argued deficiencies could be cured or the substantive easement decision would still be justified | Court found factor 1 strongly favors vacatur (no serious possibility of substantiation) |
| Allied‑Signal factor 2: Disruptive consequences of vacatur | Economic harms are real but do not outweigh NEPA’s action‑forcing purpose and environmental risks | Vacatur would cause massive economic loss, well shut‑ins, and statewide harms; rail alternatives are limited | Court found factor 2 closer but ultimately outweighed by factor 1 and environmental/public‑trust concerns; vacatur ordered |
| Whether to require an immediate safe shutdown and emptying of pipeline | Tribes requested prompt cessation and emptying to mitigate spill risk during remand | DAPL wanted to continue operations during remand; argued shutdown risks severe economic consequences | Court ordered pipeline to stop flowing and be emptied within 30 days; left execution method to operators/agency |
Key Cases Cited
- Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (describes NEPA’s procedural goals and requirement to consider significant environmental aspects)
- Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (judicial review of agency procedures under NEPA)
- Department of Transportation v. Public Citizen, 541 U.S. 752 (EIS is central to NEPA’s requirements)
- Allied‑Signal, Inc. v. United States Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993) (vacatur/remand equitable test)
- National Parks Conservation Association v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019) (agency must actually resolve scientific controversies; failure triggers EIS)
- Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357 (D.C. Cir. 2017) (vacatur of agency approval where NEPA analysis inadequate)
- Oglala Sioux Tribe v. United States Nuclear Regulatory Commission, 896 F.3d 520 (D.C. Cir. 2018) (circumstances where vacatur was withheld due to independent permitting constraints)
- Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015) (remedy options include closure or restrictions until NEPA compliance)
- United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers Int'l Union v. Mine Safety & Health Administration, 925 F.3d 1279 (D.C. Cir. 2019) (ordinary practice is vacatur of unlawful agency actions)