MEMORANDUM OPINION
JAMES
E. BOASBERG United States District Judge
For
three years, this Court has presided over a dispute regarding
the legality of the construction and operation of the Dakota
Access Pipeline. In 2017, it remanded several National
Environmental Policy Act issues to the Army Corps of
Engineers for reconsideration. The Corps has now issued its
decision on remand, which is the subject of challenges from
Plaintiffs, assorted American Indian Tribes. The substance of
those challenges is not yet at issue; instead, the Court now
addresses a threshold matter. Plaintiffs have moved for the
inclusion of several documents and sets of documents in the
administrative record that they believe were considered by
the agency but improperly excluded. Finding merit in some of
these requests but not in others, the Court will grant in
part and deny in part the Motion to Complete the
Administrative Record.
I.
Background
The
legal and factual background of this case has been laid out
extensively in the Court's prior Opinions. Only a small
subset is relevant to the present dispute.
On June
14, 2017, the Court ruled on cross-motions for partial
summary judgment relating to “the Corps' alleged
failure to comply with the National Environmental Policy
Act” when it “grant[ed] permits to Dakota Access
to construct and operate [the pipeline] under Lake
Oahe.” Standing Rock Sioux Tribe v. U.S. Army Corps
of Eng'rs (Standing Rock III), 255
F.Supp.3d 101, 112 (D.D.C. 2017). N E PA requires that an
agency “prepare an Environmental Impact Statement
[(EIS)] for any proposed major federal action
‘significantly affecting the quality of the human
environment.'” Id. at 113 (quoting 42
U.S.C. § 4332(2)(C)). To determine whether it must
prepare an EIS, an agency “first drafts an
Environmental Assessment [(EA)].” Id.
“If, after preparing an EA, the agency determines that
an EIS is not necessary, it must prepare a Finding of No.
Significant Impact (FONSI) setting forth the reasons why the
action will not have any significant impact on the
environment.” Id. If there will be no
significant impact on the environment because of the
agency's commitment to ensure mitigation measures are
performed, it prepares a Mitigated FONSI. Id. In
this case, the Corps determined, after preparing an EA, that
a Mitigated FONSI was all that was required. Id. at
116.
The
Court found that “the Corps' decision . . . largely
complied with NEPA, ” but with “substantial
exceptions.” Id. at 147. Consequently, it
remanded to the Corps to consider: “(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.”
Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng'rs (Standing Rock IV), 282 F.Supp.3d
91, 96 (D.D.C. 2017) (citing Standing Rock III, 255
F.Supp.3d at 111-12).
The
Corps completed the remand process on August 31, 2018.
See ECF No. 407, Exh. A-1 (Remand Administrative
Record) at 1. It “conclude[d] that a formal
reconsideration of the . . . [EA] and [FONSI] or the
preparation of supplemental [NEPA] documentation [was] not
required.” Id. That is, upon further analysis,
it stood by its prior conclusions. Plaintiffs have now moved
to complete the Administrative Record on which the Corps
relied in reaching its decision after remand. See
ECF No. 401 (Plaintiffs' Motion). In doing so, they seek
to have the Corps add documents that they contend it actually
considered in its decision. Id. at 4. Plaintiffs
request, consequently, that the Court “direct the Corps
to complete the record” with the documents they
enumerate. Id. at 5. The purpose of their effort is
to ensure that the Court has certain material before it when
assessing the merits of the Corps' decision on remand.
II.
Legal Standard
In any
regulatory challenge, the Court's “review is to be
based on the full administrative record that was before the
Secretary at the time [s]he made h[er] decision.”
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 420 (1971); see also 5 U.S.C. §
706 (“[T]he court shall review the whole record or
those parts of it cited by a party.”). As part of the
record, the Court may consider “any document that might
have influenced the agency's decision” and not
merely those documents the agency expressly relied on in
reaching its final determination. See Nat'l Courier
Ass'n v. Bd. of Governors of Fed. Reserve Sys., 516
F.2d 1229, 1241 (D.C. Cir. 1975); see also Amfac Resorts,
LLC v. U.S. Dep't of the Interior, 143 F.Supp.2d 7,
12 (D.D.C. 2001). The goal, ultimately, is for the Court to
have before it a “record that delineates the path by
which [the agency] reached its decision.”
Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 338
(D.C. Cir. 1989).
And so
the agency is responsible for producing such administrative
record. See Univ. of Colo. Health at Mem. Hosp. v.
Burwell, 151 F.Supp.3d 1, 12 (D.D.C. 2015). When the
agency does so, the record “is entitled to a strong
presumption of regularity.” Sara Lee Corp. v. Am.
Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008);
see also Marcum v. Salazar, 751 F.Supp.2d 74, 78
(D.D.C. 2010). A plaintiff may show that the record is
“[i]nsufficien[t]” - i.e., incomplete -
only if she is able to “specif[y] . . . documents that
ha[ve] been omitted.” NRDC v. Train, 519 F.2d
287, 291 (D.C. Cir. 1975). In other words, “a plaintiff
must put forth concrete evidence” and “identify
reasonable, non-speculative grounds for its belief
that the documents were considered by the agency and
not included in the record.” Marcum, 751
F.Supp.2d at 78 (quoting Pac. Shores Subdivision Cal.
Water Dist. v. U.S. Army Corps of Eng'rs, 448
F.Supp.2d 1, 6 (D.D.C. 2006)). Then, if the Court finds that
the record produced “clearly do[es] not constitute the
‘whole record' compiled by the agency, ” it
will order the agency to complete the record. See Overton
Park, 401 U.S. at 419 (quoting 5 U.S.C. § 706).
III.
Analysis
The
instant dispute revolves around three categories of documents
Plaintiffs believe should have been included in the record.
They originally sought five but have apparently accepted the
Corps' representation that the other two either were not
considered or already appear in the record - namely, those
relating to a third-party audit and final versions of
documents they believed were provided only in draft.
See ECF No. 405 (Plaintiffs' Reply) at 11-12. At
issue here, consequently, are: (1) sources discussed in the
Remand Analysis; (2) documents Plaintiffs maintain should
have been included in the prior Administrative Record
underlying the Corps' original NEPA decision;
and (3) documents related to the terms of Dakota Access's
easement to operate the pipeline at Lake Oahe. The Court will
address each in turn.
A.
Sources Discussed in Remand Analysis
Plaintiffs
first contend that the “Remand Analysis cites to and
relies on a number of technical supporting documents that are
not in the record.” Pl. Mot. at 8. Several of these the
Corps has agreed should properly have been included and has
thus committed to add them. See ECF No. 402
(Defendant's Opposition) at 4, 17. Remaining at issue,
therefore, are a report on pipeline spills and the Pipeline
and Hazardous Materials Safety Administration (PHMSA) data
underlying it; technical citations from the EA cited in the
Remand Analysis; and the list of references and sources cited
within “two key supporting technical documents that
support the Remand Decision” - the “Downstream
Receptor Report” (DRR) and the “Spill Model
Report” (SMR). See Pl. Mot. at 8, 9. In
addition to specifically enumerating those documents,
Plaintiffs also request generally that the “Corps . . .
complete ...