United States District Court, District of Columbia
E. BOASBERG, United States District Judge
dispute over the Dakota Access Pipeline has now taken nearly
as many twists and turns as the 1, 200-mile pipeline itself.
On June 14, 2017, in its third Opinion on the case, this
Court held that the U.S. Army Corps of Engineers had failed
to fully follow the National Environmental Protection Act
when it determined that the pipeline would not have a
significant environmental impact. Although the Court found
that the agency had “substantially complied” with
the statute, the Opinion identified three discrete
deficiencies in the Corps' analysis and remanded the
matter to the agency for further evaluation. In doing so, the
Court asked the parties to submit further briefing on the
question such an action raised: what is the proper
remedy during this remand period? Specifically, the
Court must determine whether or not to vacate the
Corps' environmental assessment, as well as the easement
granted to Dakota Access in reliance on that determination.
Without such an easement, the oil cannot flow through the
propriety of vacatur during remand is determined by a
two-prong test that requires the Court to consider (1) the
seriousness of the deficiencies in the agency action and (2)
the disruptive consequences of vacating that prior approval.
As to the first, the Court ultimately concludes that the
three errors identified in the prior Opinion are not
fundamental or incurable flaws in the Corps' original
analysis; rather, the agency has a significant possibility of
justifying its prior determinations on remand. Although the
Court finds that the equities of disruption do not tip
sharply in Defendants' favor on the second factor,
prevailing on the first is enough here for them to avoid
lengthy factual history of this case is set forth in this
Court's prior Opinion, Standing Rock Sioux Tribe v.
U.S. Army Corps of Engineers (Standing Rock III), 2017
WL 2573994 (D.D.C. June 14, 2017), and need not be repeated
here. Suffice it to say that Plaintiffs, the Standing Rock
and Cheyenne River Sioux Tribes (and other intervenors and
consolidated Plaintiffs), strongly oppose the current route
of the Dakota Access Pipeline (DAPL), a nearly 1, 200-mile
domestic pipeline running from North Dakota to Illinois. In
particular, the Tribes protest DAPL's crossing at Lake
Oahe, a federally regulated body of water that borders their
reservations. Created by the Corps in 1958 via a dam
constructed on the Missouri River, the Lake is a primary
source of water for the Tribes, and it is considered sacred
to their spiritual practices. Id. at *3.
History of Litigation
past fourteen months, the Tribes have attempted to prevent
oil from flowing under Lake Oahe. The instant case began on
July 25, 2016, when Standing Rock filed its Complaint against
the Corps for declaratory and injunctive relief pursuant to
the National Historic Preservation Act, National
Environmental Policy Act, Clean Water Act, and the River and
Harbors Act. See ECF No. 1 (SRST Complaint),
¶¶ 128-212. The following month, Dakota Access LLC
successfully moved to intervene in support of the Corps,
see ECF No. 7, and the Cheyenne River Sioux Tribe
intervened as a Plaintiff, subsequently filing its own
Complaint. See ECF No. 11-12 (CRST Complaint). The
Tribes' first pass at preventing the pipeline was a
motion for a preliminary injunction based solely on the NHPA,
asserting that the ongoing clearing and grading of the land
along DAPL's route disrupted sacred Tribal sites. See
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers
(Standing Rock I), 205 F.Supp.3d 4, 8-9 (D.D.C. 2016).
On September 9, 2016, the Court denied emergency relief, and
construction proceeded. Id. at 37.
February 8, 2017, the Corps finally granted Dakota Access an
easement pursuant to the Mineral Leasing Act, authorizing it
to cross federal lands at Lake Oahe and complete the
pipeline. See ECF No. 172-11 (Easement). The next
day, Cheyenne River filed a motion for preliminary injunction
and an application for a temporary restraining order, this
time alleging violations of RFRA. See ECF Nos. 98,
99; Standing Rock Sioux Tribe v. U.S. Army Corps of
Engineers (Standing Rock II), 239 F.Supp.3d 77, 81
(D.D.C. 2017), appeal dismissed, No. 17-5043, 2017
WL 4071136 (D.C. Cir. May 15, 2017). Believing these
religious-freedom claims unlikely to succeed, the Court
issued a second Opinion denying the preliminary injunction.
See Standing Rock II, 239 F.Supp.3d at 80.
Motions for Summary Judgment
these emergency motions were ongoing, the parties filed
cross-motions for summary judgment. See ECF Nos. 117
(SRST MSJ); 131 (CRST MSJ); 172 (Corps MSJ); 185 (DA MSJ).
Now focusing on their environmental claims, the Tribes
challenged the Corps' decision to issue the easement on
the basis of its July 25, 2016, Environmental Assessment (EA)
and Mitigated Finding of No Significant Impact (FONSI),
asserting that the agency had violated NEPA by failing to
complete an Environmental Impact Statement (EIS). NEPA
requires that federal agencies evaluate the environmental
effects of major government actions, but it does not
“mandate particular results.” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). Instead, the statute “imposes only procedural
requirements.” Dep't of Transp. v. Public
Citizen, 541 U.S. 752, 756 (2004). If a project will
“significantly” affect the “quality of the
human environment, ” NEPA requires that the agency
complete a detailed EIS. See 42 U.S.C. §
4332(C). To determine whether or not there will be such
significant effects, however, the agency first prepares a
shorter EA. This “concise public document”
discusses the need for the proposal, the alternatives, the
environmental impacts of the proposed action, and the
agencies and persons consulted. See 40 C.F.R. §
1508.9(b). If the EA concludes that there will be no
significant environmental impact, the agency may forgo
completing a full EIS.
was the route chosen by the Corps in this case. See
ECF Nos. 172-1, 172-2 (EA and FONSI). The agency's EA and
FONSI explained that, given the proposed mitigation measures
and Defendants' assessment of DAPL's
“anticipated environmental, economic, cultural . . .
social[, and] cumulative effects, ” the pipeline's
crossing at Lake Oahe would not “significantly affect
the quality of the human environment.” FONSI at 6. The
Tribes argued in their briefing that “[t]he Corps'
conclusion that the Oahe crossing was not significant enough
to warrant an EIS” was “arbitrary, capricious,
and contrary to law.” SRST MSJ at 17.
Prior Opinion and Remand
14, 2017, two weeks after DAPL became fully operational, the
Court granted in part and denied in part the parties'
motions and remanded certain issues to the Corps. See
Standing Rock III, 2017 WL 2573994, at *40. It rejected
Plaintiffs' motion with respect to their claims under the
Clean Water Act and the Mineral Leasing Act, and it also
upheld the majority of the Corps' determinations under
NEPA - including the agency's “top-line
conclusion” that the risk of an oil spill was
sufficiently low so as to not require an EIS. Id. at
*12, 16. It granted the Tribes' motion, however, with
respect to three discrete flaws in the Corps'
environmental analysis. The Court held that the Corps had
insufficiently addressed: (1) the degree to which the
project's effects are likely to be highly controversial;
(2) the consequences of a spill for the Tribes' fishing
and hunting rights; and (3) the environmental-justice impacts
of the project. Id. at *1. Although the Court
remanded these issues to the Corps for further analysis, it
did not decide whether the easement should be vacated pending
such remand. Instead, it ordered the parties to submit
briefing on “whether remand with or without vacatur is
appropriate in light of the deficiencies herein identified
and any disruptive consequences that would result given the
current stage of the pipeline's operation.”
Id. at *29.
briefing is now complete, and the Court must determine
whether or not oil may continue to flow under Lake Oahe.
Although the parties dispute what, precisely, vacatur would
entail, see ECF Nos. 277 (DA Reply) at 1 n.1; 276
(Corps Reply) at 9; 280 (Tribes Sur-reply) at 1, the prior
Opinion clearly stated that vacatur would require that DAPL
“cease operations” during remand. Standing
Rock III at *28. The Court therefore assumes at this
stage that such a remedy would vacate the Corps' prior EA
and FONSI, as well as the easement it granted to Dakota
Access in reliance on these determinations. Without this
authorization, DAPL cannot lawfully continue to operate the
pipeline on federal land.
the caselaw of this Circuit, “vacating a rule or action
promulgated in violation of NEPA is the standard
remedy.” Humane Soc. of U.S. v. Johanns, 520
F.Supp.2d 8, 37 (D.D.C. 2007) (citing Am. Bioscience,
Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001));
see Reed v. Salazar, 744 F.Supp.2d 98, 118-20
(D.D.C. 2010) (finding NEPA violation and ordering vacatur);
Sierra Club v. Van Antwerp, 719 F.Supp.2d 77, 78-80
(D.D.C. 2010) (finding NEPA violation and ordering remand
with partial vacatur); Greater Yellowstone Coal. v.
Kempthorne, 577 F.Supp.2d 183, 204-05, 210 (D.D.C. 2008)
(finding NEPA violation and ordering vacatur). Yet, although
vacatur is the “presumptively appropriate remedy,
” it is not the only option. See Sierra Club,
719 F.Supp.2d at 78. Instead, as equity requires, the
reviewing court has discretion leave the agency action in
place. See, e.g., Advocates for Hwy. & Auto
Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d
1136, 1151 (D.C. Cir. 2005) (remanding without vacatur);
Int'l Union, United Mine Workers of Am. v. Fed. Mine
Safety & Health Admin., 920 F.2d 960, 966-67 (D.C.
Cir. 1990) (same).
test for whether or not a court should vacate a deficient
agency action during remand comes from this Circuit's
decision in Allied-Signal v. U.S. Nuclear Regulatory
Commission, 988 F.2d 146, 150-51 (D.C. Cir. 1993). As
Allied-Signal explained, “[T]he decision
whether to vacate depends on the seriousness of the
order's deficiencies (and thus the extent of doubt
whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be
changed.” Id. at 150-151 (internal citation
omitted). Put otherwise, this Court must determine whether
there is “at least a serious possibility that the
[agency] will be able to substantiate its decision on remand,
” and whether vacatur will lead to impermissibly
disruptive consequences in the interim. See Nat'l
Parks Conservation Ass'n v. Jewell, 62 F.Supp.3d 7,
20 (D.D.C. 2014); Williston Basin Interstate Pipeline Co.
v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008) (declining
to vacate when “significant possibility that the
[agency] may find an adequate explanation for its
actions”). The question for the Court today is thus
whether this is the “type of case that merits departure
from the presumptive remedy of vacatur.” Pub.
Employees for Envtl. Responsibility v. United States Fish
& Wildlife Serv., 189 F.Supp.3d 1, 2-3 (D.D.C.
2016), appeal dismissed, No. 16-5224, 2016 WL
6915561 (D.C. Cir. Oct. 31, 2016). It therefore examines the
two prongs of Allied-Signal separately below,
bearing in mind that “[t]here is no rule requiring
either the proponent or opponent of vacatur to prevail on
both factors.” Shands Jacksonville Med. Ctr. v.
Burwell, 139 F.Supp.3d 240, 270 (D.D.C. 2015).
Seriousness of Deficiencies
first prong of the Allied-Signal test requires the
Court to determine the “seriousness” of the
deficiencies in the underlying agency action. Here,
Defendants argue that the three inadequacies identified by
the Court - namely, the Corps' failure to adequately
address the degree to which the project's effects are
likely to be highly controversial, the impacts of a spill on
fish or game, and the environmental-justice impacts of a
spill - are not significant deficiencies in the agency's
prior analysis. See ECF No. 258 (Corps Brief).
Noting that the Court previously rejected the majority of
Plaintiffs' challenges, Defendants contend that there are
“only a few remaining tasks for the Corps to complete
on remand” in order to substantiate the prior EA.
See ECF No. 260 (DA Brief) at 19. Plaintiffs,
unsurprisingly, cast the Court's Opinion in quite a
different light. The Tribes assert that the Court granted
their motion for summary judgment on “three grounds
that go to the heart of ...