282 F. Supp. 3d 91
D.C. Cir.2017Background
- This case reviews whether the Army Corps of Engineers properly issued an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for the Dakota Access Pipeline (DAPL) Lake Oahe crossing under NEPA.
- The district court previously found deficiencies in the Corps’ consideration of: (1) whether impacts were highly controversial given post-July 2016 expert reports; (2) effects of a potential oil spill on tribal fishing and hunting (treaty-protected resources); and (3) environmental-justice impacts on tribal and low-income communities versus an alternative Bismarck route. The court remanded for further agency consideration.
- The current opinion applies the Allied-Signal vacatur framework to decide whether remand should be with or without vacatur of the Corps’ prior decisions (i.e., whether to suspend the easement/operation during remand).
- The court concluded the Corps’ EA errors were remediable (agency could likely justify its prior EA on remand) and therefore remand without vacatur is appropriate, though the Corps must give fuller explanations on the three identified deficiencies.
- The court weighed disruptive consequences of vacatur (economic harms, re-routing risk) but found economic disruption persuasive only narrowly and rejected speculation that vacatur would increase spill risk via rail transport; it also noted equitable power to craft conditions if it declines vacatur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Corps failed to consider that DAPL effects were "highly controversial" due to post-24 July 2016 expert reports | Tribes: expert critiques create substantial scientific dispute requiring an EIS and the Corps must explicitly rebut each technical criticism | Corps: post-remand record may show experts are flawed or that existing easement conditions address concerns; Corps can articulate reasons on remand | Court: Error was lack of explanation, not insurmountable; substantial possibility Corps can justify EA on remand; remand without vacatur appropriate |
| Whether the Corps inadequately assessed fishing/hunting impacts from a potential spill | Tribes: significance of treaty-protected resource harms requires an EIS | Corps: low rupture/spill probability and existing analyses of toxicity mean impacts likely "no significant"; Corps can connect existing data on remand | Court: Corps already gathered relevant data; must analyze spill effects on resources but likely can cure defect and substantiate EA; remand without vacatur appropriate |
| Whether the Corps’ environmental-justice analysis was inadequate (site choice vs. Bismarck) | Tribes: cursory analysis improperly understates disproportionate impacts on Native/low-income communities and would require an EIS | Corps: low spill risk, relocation of tribal water intake and prior consideration of alternatives make different result unlikely | Court: Analysis was deficient but not "crippling"; Corps must do more but could validly reach same EA/FONSI; remand without vacatur appropriate |
| Whether vacatur is necessary or whether remand without vacatur should be ordered (disruptive consequences) | Tribes: continued operation risks spill during remand; vacatur would mitigate tribal harms | Defendants/Dakota Access: vacatur would cause severe economic disruption, contractual harms, and potential rerouting risks (rail) that may increase danger | Court: Economic disruption exists but is contested and not dispositive; rail-risk speculative; overall Allied-Signal balance favors remand without vacatur given high likelihood Corps can cure defects |
Key Cases Cited
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (vacatur-remand framework balancing likelihood of agency prevailing and disruptive consequences)
- Town of Cave Creek v. FAA, 325 F.3d 320 (D.C. Cir. 2003) ("highly controversial" factor concerns substantive scientific disputes, not mere opposition)
- Wis. Valley Improvement Co. v. FERC, 236 F.3d 738 (D.C. Cir. 2001) (deference to agency expertise on factual disputes)
- Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (environmental-justice analysis: agency need only recognize and discuss impacts and take a hard look)
- Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) (when agency likely to justify action, disruptive-consequences prong is marginal)
- Radio-Television News Directors Ass’n v. FCC, 184 F.3d 872 (D.C. Cir. 1999) (vacatur generally appropriate when agency reasoning is so crippled as to be unlawful)
- Davis Cty. Solid Waste Mgmt. v. U.S. EPA, 108 F.3d 1454 (D.C. Cir. 1997) (remand without vacatur where vacatur would temporarily increase environmental harm)
- Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512 (D.C. Cir. 2009) (court may remand without vacatur to avoid making "the best an enemy of the good")
- Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008) (if agency can readily cure explanatory defects, remand without vacatur favored)
- Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) (same principle on curable explanation defects)