985 F.3d 1032
D.C. Cir.2021Background
- Lake Oahe (created by the Corps) supplies drinking, cultural, and economic water resources to Standing Rock and other Sioux tribes; Dakota Access Pipeline (DAPL) crosses beneath Lake Oahe and required a Mineral Leasing Act easement from the U.S. Army Corps of Engineers (Corps).
- Corps issued a Draft EA and then a Final EA with a Mitigated Finding of No Significant Impact (FONSI); Tribes, DOI, and EPA submitted substantial criticisms urging an EIS, especially over spill risks.
- Administration change in January 2017 led the Corps to reverse course and grant the easement on February 8, 2017; Tribes sued under NEPA and other statutes.
- District court found Corps’ NEPA review inadequate on multiple grounds, remanded, later vacated the easement, ordered an EIS, and directed the pipeline to be shut down and emptied of oil pending completion of the EIS.
- D.C. Circuit affirmed that the Corps violated NEPA and must prepare an EIS and vacated the easement, but reversed the district court to the extent it ordered the pipeline shut down without the requisite injunctive-relief findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps violated NEPA by forgoing an EIS because effects were "highly controversial" | Tribes: substantial, expert, and agency criticism created unresolved, significant controversy requiring an EIS | Corps/Dakota Access: criticisms were addressed or not sufficiently probative; Tribe criticism came from interested parties | Court: Affirmed violation — multiple unresolved, serious scientific disputes made effects "highly controversial," so an EIS is required |
| Adequacy of analysis of leak-detection system | Tribes: PHMSA and incident evidence show CPM systems often fail to promptly detect leaks, especially slow leaks; Corps ignored this | Corps: PHMSA study not dispositive (older pipelines); leaks rare; visual detection complements CPM | Court: Corps failed to address PHMSA and real-world examples; unresolved controversy requiring EIS |
| Use of operator-specific safety record in risk analysis | Tribes: Corps should have incorporated Sunoco/Energy Transfer’s poor incident record into risk model | Corps/Dakota Access: Corps relied on industry-wide data and technical judgment; deference warranted | Court: Corps’ reliance on generalized data without addressing operator record was inadequate and left controversy unresolved |
| Remedy: vacatur of easement and injunction to shut pipeline | Tribes: vacatur + shutdown needed to prevent irreversible harm pending EIS | Corps/Dakota Access: vacatur/ shutdown would cause severe disruption; remand without vacatur appropriate | Court: Vacatur of easement and order to prepare EIS affirmed; district court’s shutdown/emptying order reversed for lack of injunction findings under Monsanto (injunctive relief requires traditional four-factor analysis) |
Key Cases Cited
- National Parks Conservation Ass'n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019) (explains "highly controversial" NEPA factor and when EIS is required)
- Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983) (EIS required if significant environmental impacts are possible)
- Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002) (agency must prepare EIS if significant impacts might result)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (agency must cogently explain its exercise of discretion)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (injunctive relief in NEPA cases requires traditional four-factor test)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (vacatur/remand discretionary factors: seriousness of deficiencies and disruptive consequences)
- Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm'n, 896 F.3d 520 (D.C. Cir. 2018) (NEPA is procedural; serious procedural defects undermine confidence in agency choice)
- Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (vacatur used where NEPA violations undermine authorization)