Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs

• Citation: 471 F.Supp.3d 71
• Decision Date: 06 July 2020
• Docket Number: Civil Action No. 16-1534 (JEB)
• Parties: STANDING ROCK SIOUX TRIBE, et al., Plaintiffs, and Cheyenne River Sioux Tribe, et al., Plaintiff-Intervenors, v. U.S. ARMY CORPS OF ENGINEERS, Defendant, and Dakota Access, LLC, Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

471 F.Supp.3d 71

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs,andCheyenne River Sioux Tribe, et al., Plaintiff-Intervenors,

v. U.S. ARMY CORPS OF ENGINEERS, Defendant,andDakota Access, LLC, Defendant-Intervenor.

Civil Action No. 16-1534 (JEB)

United States District Court, District of Columbia.

Signed July 6, 2020

Jan Hasselman, Pro Hac Vice, Stephanie Kathleen Tsosie, Pro Hac Vice, Patti A. Goldman, Earthjustice, Seattle, WA, for Plaintiff Standing Rock Sioux Tribe.

Jeffrey S. Rasmussen, Pro Hac Vice, Jennifer S. Baker, Pro Hac Vice, Patterson Earnhart Real Bird & Wilson LLP, Louisville, CO, Rollie Wilson, Patterson Earnhart Real Bird & Wilson LLP, Washington, DC, for Plaintiffs Yankton Sioux Tribe, Robert Flying Hawk.

Michael L. Roy, Hobbs, Straus, Dean & Walker, LLP, Washington, DC, for Plaintiff Oglala Sioux Tribe.

Joseph V. Messineo, Pro Hac Vice, Fredericks Peebles & Morgan LLP, Omaha, NE, Nicole E. Ducheneaux, Big Fire Law & Policy Group LLP, Bellevue, NE, Tracey A. Zephier, Pro Hac Vice, Cheyenne River Sioux Tribe Attorney General, Eagle Butte, SD, for Intervenor Plaintiff Cheyenne River Sioux Tribe.

Joseph V. Messineo, Pro Hac Vice, Fredericks Peebles & Morgan LLP, Omaha, NE, Nicole E. Ducheneaux, Big Fire Law & Policy Group LLP, Bellevue, NE, for Intervenor Plaintiff Steve Vance.

Matthew M. Marinelli, Amarveer Singh Brar, Brian Matthew Collins, Erica M. Zilioli, Reuben S. Schifman, U.S. Department of Justice, Washington, DC, for Defendant.

Kimberly Hope Caine, Norton Rose Fulbright US LLP, David Debold, Miguel A. Estrada, William S. Scherman, Gibson, Dunn & Crutcher, LLP, Washington, DC, Robert D. Comer, Pro Hac Vice, Norton Rose Fulbright US LLP, Denver, CO, for Defendant-Intervenor Dakota Access LLC.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Lake Oahe is a large reservoir lying behind a dam on the Missouri River and stretching between North and South Dakota. Fearing severe environmental consequences, American Indian Tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake. Today they finally achieve that goal — at least for the time being.

Following multiple twists and turns in this long-running litigation, this Court recently found that Defendant U.S. Army Corps of Engineers had violated the National Environmental Policy Act when it granted an easement to Defendant-Intervenor Dakota Access, LLC to construct and operate a segment of that crude-oil pipeline running beneath the lake. This was because the Corps had failed to produce an Environmental Impact Statement despite conditions that triggered such a requirement. The Court consequently remanded the case to the agency to prepare such an EIS, but it asked for separate briefing on the appropriate interim remedy. In other words, the Court asked the parties whether the easement should be vacated and the pipeline emptied during the remand process. Although mindful of the disruption such a shutdown will cause, the Court now concludes that the answer is yes. Clear precedent favoring vacatur during such a remand coupled with the seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow for the thirteen months that the Corps believes the creation of an EIS will take.

I. Background

The Court recounts here only the background information necessary to set the stage for the remedy analysis. For the full history of this case, the interested reader can refer to the Court's ten prior Opinions in this matter. See, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps. of Eng'rs (Standing Rock III ), 255 F. Supp. 3d 101, 114–16 (D.D.C. 2017) ; see also ECF Nos. 39, 158, 206, 239, 284, 304, 392, 418, 496. The Court begins with the relevant statute and then describes the procedural history of the litigation.

A. Statutory Scheme

The National Environmental Policy Act requires agencies to "consider every significant aspect of the environmental impact of a proposed action," Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quoting Vt. Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ), so as to "inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. (citing Weinberger v. Catholic Action of Haw., 454 U.S. 139, 143, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981) ). In order to achieve these goals, NEPA imposes on agencies certain procedural requirements, Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C. Cir. 1991), but it "does not mandate particular consequences." Id. at 194.

First, an agency must draft an Environmental Assessment, see 40 C.F.R. § 1501.4(b), that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement [EIS] or a finding of no significant impact [FONSI]." Id. § 1508.9(a). "If any ‘significant’ environmental impacts might result from the proposed agency action[,] then an EIS must be prepared before agency action is taken." Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) ); see also 42 U.S.C. § 4332(2)(C) (requiring statement of environmental impact of any proposed action "significantly affecting the quality of the human environment"). If, on the other hand, the agency determines that no EIS is required, it must prepare either a FONSI or a Mitigated FONSI, depending on whether the lack of significant impact results from an agency's commitment to mitigation measures. See 40 C.F.R. §§ 1501.4(e), 1508.13 ; Council on Environmental Quality, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact 2, 7 (2011), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.

In order to determine whether its actions may result in "significant" environmental impacts — and therefore whether it must prepare an EIS — an agency must examine both the "context" and the "intensity" of the action. See 40 C.F.R. § 1508.27. [I]n evaluating "intensity," the agency must consider ten factors, id. § 1508.27(b), only one of which is relevant here. "Implicating any one of the[se] factors may be sufficient to require development of an EIS." Nat'l Parks Conservation Ass'n v. Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019) (citing Grand Canyon Trust, 290 F.3d at 347 ). The decision here turned on the fourth of these factors — "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4).

Effects are "controversial" where "substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use." Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (emphasis omitted) (quoting Found. for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1182 (9th Cir. 1982) ). While "what constitutes the type of ‘controversy’ that requires a full EIS is not entirely clear," Nat'l Parks Conservation Ass'n v. United States, 177 F. Supp. 3d 1, 33 (D.D.C. 2016) ( quoting Nat'l Wildlife Fed'n v. Norton, 332 F. Supp. 2d 170, 184 (D.D.C. 2004) ), "something more is required besides the fact that some people may be highly agitated and be willing to go to court over the matter." Id. (quoting Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975) ).

B. Procedural History

This case involves efforts by several American Indian Tribes to enjoin Defendant United States Army Corps of Engineers from permitting Defendant-Intervenor Dakota Access, LLC to construct and operate a segment of its oil pipeline under Lake Oahe, which lies on the Missouri River. In 2016, Plaintiff Standing Rock Sioux Tribe filed its Complaint in this Court, followed shortly by Plaintiff-Intervenor Cheyenne River Sioux Tribe and later by Plaintiffs Oglala and Yankton Sioux Tribes, the latter two in cases that have now been consolidated into the present one. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock VI ), No. 16-1534, 440 F.Supp.3d 1, 9–10 (D.D.C. Mar. 25, 2020). Early on, both Standing Rock and Cheyenne River were unsuccessful in seeking preliminary injunctions under the National Historic Preservation Act and the Religious Freedom Restoration Act. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock II ), 239 F. Supp. 3d 77, 100 (D.D.C. 2017) ; Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock I ), 205 F. Supp. 3d 4, 37 (D.D.C. 2016). In between these two Opinions, the Corps "announced that DAPL construction would be suspended pending the Corps’ reconsideration of its statutory obligations" under NEPA. Standing Rock VI, 440 F.Supp.3d at 10. A few months later, however, following the change of administration in January 2017 and a presidential memorandum urging acceleration of the project, the Corps again reconsidered and decided to move forward. Id. It granted the sought permit, construction was completed, and oil commenced flowing through the Dakota Access Pipeline. Standing Rock III, 255 F. Supp. 3d at 120.

Undeterred, later in 2017, Standing Rock and Cheyenne River switched focus and "sought summary judgment under [the National Environmental Policy Act], arguing that the Corps was required to prepare an [Environmental Impact Statement], and Defendants similarly cross-moved." Standing Rock VI, 440 F.Supp.3d at 11. The Court found that the Corps’ decision "not to issue an EIS largely complied with NEPA," but three "substantial exceptions" to that compliance necessitated a remand. Standing Rock III, 255 F. Supp. 3d at 147. Specifically, the Court "found wanting the Corps’ analysis of: (1) whether the project's effects were likely to be highly controversial; (2) the impact of an...