... Opinion: Dakota Access Pipeline Developments and Future Concerns  

Washington Watch: Dakota Access Pipeline Developments and Future Concerns

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Dakota Access Pipeline (DAPL) currently transports 40 percent of North Dakota’s oil production. Unfortunately, DAPL’s very existence is precarious at best: A court vacated an easement allowing the pipeline to be placed on federal land under a lake, and issuance of a replacement easement hinges on an environmental impact statement being prepared by the U.S. Army Corps of Engineers (Corps). This column discusses two recent developments — one a request by DAPL’s owner for the Supreme Court to accept an appeal of the easement vacatur, the other a request by several Native American tribes for the Corps to “fix” the current process for the EIS preparation.

Background

Some tribes have long opposed the development and operation of Dakota Access Pipeline, along the way invoking a variety of legal arguments, such as DAPL might damage cultural artifacts in violation of the National Historical Preservation Act or the pipeline’s placement under “sacred waters” would violate their religious rights under the Religious Freedom Restoration Act. These arguments were unsuccessful. So the tribes took a different tact — challenging compliance with the National Environmental Policy Act (NEPA).

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In 2016, the Corps prepared an Environmental Assessment (EA) in response to Dakota Access’ request for a 1.7-mile easement to cross under Lake Oahe in North Dakota. Although the regulations indicate that the EA “normally should not exceed 15 pages,” the EA totaled more than 160 pages (not counting 700 pages of appendices), analyzed six alternatives to the crossing, addressed tribal concerns, made of finding of no significant impact (FONSI), and issued construction permit. Before the easement could be issued, the tribes mobilized protests and lobbied the Obama administration, which then prevented issuance of the easement and announced an EIS would be prepared. After the 2016 presidential election, the Corps reviewed additional environmental materials and delivered the easement.

The tribes immediately filed a complaint, arguing that the Corps violated NEPA by issuing the easement without an EIS. In June 2017, a judge held that the Corps had “substantially complied with NEPA,” agreed with the Corps’ conclusion that the risk of a pipeline spill was low, but remanded to the Corps three issues that the judge considered were insufficiently considered by the EA. In August 2018, the Corps completed a 280-page “Remand EA.” Afterwards, the judge determined that, because four criticisms (out of hundreds) raised by the tribes were not sufficiently addressed by the Remand EA, DAPL’s environmental impact was “highly controversial” and on this alone required preparation of an EIS. In the meantime, the judge required DAPL to be shut down and emptied, reasoning that anything else would “subvert” NEPA and deprive the statute of its “bite.”

On appeal, the DC Circuit ruled that because environmental impacts were “highly controversial,” the trial court was required “to delve into the details” of the tribes’ criticisms, which in turn obligated the Corps to “convinc[e] the court” that it had “resolved serious objections to its analysis.” The DC Circuit affirmed the vacatur, but reversed the shutdown order, allowing DAPL to continue operations pending preparation of the EIS. In the meantime, because there is no easement, the Corps maintains that it can shut down DAPL at any time, but for now will “tolerate” continued operation.

Writ of Certiorari

In late September, the Dakota Access Pipeline’s owner filed with the Supreme Court a petition for a writ of certiorari, essentially a request that the Court hear an appeal (not rule a specific way). If four justices agree, the Supreme Court will hear the appeal. If not, the DC Circuit’s opinion stands, and DAPL will need a helpful EIS and new easement to ensure long-term operations. Only a small number of “cert” requests are granted each year, generally to resolve a conflict among various circuit courts or address a decision departing from precedent. Against this backdrop, the petition explained that two issues require Supreme Court attention.

The first issue is whether, under NEPA, an agency that considers all criticisms of its environmental analysis must also “resolve” those criticisms to the court’s satisfaction to justify a FONSI. The petition argues that the DC Circuit’s analysis amounted to a “convince the court” test, which is contrary to Supreme Court precedent. Specifically, the Court in Marsh v. Oregon Natural Resources Council held that, when reviewing an agency’s decision to forgo an EIS, courts must “defer” to the agency’s “informed discretion,” even when they might be inclined to do something else. Before Marsh, agency deference differed depending upon the circuit court where the litigation occurred. Marsh resolved the conflict, but the DC Circuit has resuscitated the conflict, and that merits Supreme Court review, according to the petition.

Second, the petition submits that appeal is needed to address what standard governs decisions to grant or deny the vacatur pending remand, especially given that the D.C. Circuit split with several of the other circuits by adopting a rule that effectively compels vacatur when an agency commits procedural error. The DC Circuit and other sister circuits require a court, when considering whether to vacate, to consider (1) “the seriousness of the order’s deficiencies,” and (2) “the disruptive consequences” of vacatur. However, in the underlying case, the DC Circuit effectively changed the test by bolting on a new rule deeming some procedural errors — here deciding not to prepare an EIS — so serious that the proceeding could not be remanded without vacatur. Thus, where other circuits allow the agency to justify the action to be vacated, the DC Circuit instead identified prior procedural actions taken by Corps, which the court found unjustifiable.

Will the EIS be “Fixed”?

Two days after the cert request was filed, three Sioux tribes sent a letter to the Acting Assistant Secretary of the Army for Civil Works, claiming that the process for the development of the Dakota Access Pipeline’s EIS is “fatally flawed and its content irredeemable. We ask that you step in to fix the process immediately.” The tribes sought four remedies, that this, they

  • Urged the Corps terminate the company preparing the EIS involving DAPL, claiming the company is not impartial, because it is a member of American Petroleum Institute and once testified before the South Dakota Public Utilities Commission in favor of permitting DAPL;
  • Demanded that the Corps “bring in the U.S. Department of the Interior as a co-equal cooperating agency with appropriate expertise to assist the Corps”;
  • Insisted on “full transparency” in the preparation of the EIS and as sovereign nations unfettered access to all information reviewed by the Corps; and
  • Requested “a full government-to-government consultation to discuss these important requests at the nearest available opportunity.”

Ironically, the tribes’ “fix” for the EIS process involves terminating an environmental consultant for allegedly being biased, but involving the Secretary of Interior, Deb Haaland, a Native American, who went to North Dakota, protested DAPL, cooked a meal for the protestors, and reminisced:

I felt like we really had hit on an environmental movement that was deep and meaningful. It just seemed so amazing that so many tribes came together, because tribes came from everywhere to stand with the water protectors. It was significant that so many of us came together to protect water, our natural resources.

The extent of Haaland’s involvement in the preparation of the EIS remains unclear, but her position on Dakota Access Pipeline appears crystal clear.

Washington Watch is a regular report on the energy pipeline regulatory landscape. Steve Weiler is an attorney at Dorsey & Whitney LLC in Washington, D.C. Contact him at weiler.steve@dorsey.com.

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