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

• Citation: 440 F.Supp.3d 1
• Decision Date: 25 March 2020
• Docket Number: Civil Action No. 16-1534 (JEB)
• Parties: STANDING ROCK SIOUX TRIBE, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

440 F.Supp.3d 1

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs,

v.U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action No. 16-1534 (JEB)

United States District Court, District of Columbia.

Signed March 25, 2020

Jan Hasselman, Pro Hac Vice, Stephanie Kathleen Tsosie, Pro Hac Vice, Patti A. Goldman, EarthJustice, Seattle, WA, Jeffrey S. Rasmussen, Pro Hac Vice, Jennifer S. Baker, Pro Hac Vice, Fredericks Peebles & Morgan LLP, Louisville, CO, Patricia Ann Marks, Fredericks Peebles & Patterson LLP, Michael L. Roy, Hobbs, Straus, Dean & Walker, LLP, Washington, DC, for Plaintiffs.

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

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

The Court returns once more to the segment of the Dakota Access Pipeline running under the Missouri River and to its effects on the Indian Tribes living nearby. In February 2017, Defendant U.S. Army Corps of Engineers concluded that granting an easement for the crossing would yield no significant environmental impact, thus exempting the agency from having to prepare an Environmental Impact Statement under the requirements of the National Environmental Policy Act. In these consolidated cases, several Tribes whose reservations lie near Lake Oahe challenge that decision.

In one of its many prior Opinions in this case, the Court held that the agency's decision "not to issue an EIS largely complied with NEPA." Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock III ), 255 F. Supp. 3d 101, 147 (D.D.C. 2017). "Yet there [we]re substantial exceptions" to such compliance, one of which being the agency's failure to address expert comments noting that the pipeline suffered from serious flaws that could result in extensive environmental harm in the event of a spill. Id. The Court thus ordered the Corps to consider these issues on remand. Id. at 160. That remand is now complete, and the Tribes, not surprisingly, strongly disagree with the Corps' most recent conclusions.

In analyzing those conclusions, this Court has received significant guidance from a recent case decided by the D.C. Circuit, National Parks Conservation Association v. Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019). The appeals court there clarified the inquiry to be conducted by a district court when determining whether an agency has adequately dealt with expert criticisms such as these. Applying Semonite, this Court ultimately concludes that too many questions remain unanswered. Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains "highly controversial" under NEPA. As the Court thus cannot find that the Corps has adequately discharged its duties under that statute, it will remand the matter to the agency to prepare an Environmental Impact Statement.

I. Background

In order to reacquaint the reader with the landscape against which this dispute unfolds, the Court will first briefly set out the statutory framework of NEPA. It will then separately discuss the factual background, the procedural history, and the recent remand and resulting claims.

A. Statutory and Regulatory Scheme

The National Environmental Policy Act requires agencies to "consider every significant aspect of the environmental impact of a proposed action," Baltimore 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 a statement of the 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. When looking at intensity, an agency must consider ten factors, id. § 1508.27(b), and "[i]mplicating any one of the[se] factors may be sufficient to require development of an EIS." Semonite, 916 F.3d at 1082 (citing Grand Canyon Trust, 290 F.3d at 347 ). Relevant here is the fourth of these factors — viz. , "[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). This factor will be discussed at length below. See infra Section III.A.1.

Although not in the above-described list of ten factors, two other issues require the Corps' attention under its NEPA obligations. First, in this Circuit, NEPA creates, through the Administrative Procedure Act, a right of action deriving from Executive Order 12,898. This order requires federal agencies to "make achieving environmental justice part of their mission" — "[t]o the greatest extent practicable and permitted by law" — "by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations." 59 Fed. Reg. 7629 (Feb. 11, 1994), § 1-101; see Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 688–89 (D.C. Cir. 2004) (recognizing right to environmental-justice review under NEPA and APA). Indian tribes are one of the populations that must be considered. See Council on Envtl. Quality, Environmental Justice: Guidance Under the National Environmental Policy Act 9 (1997), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf.

Second, the parties agreed during the first round of summary-judgment briefing that NEPA additionally requires an agency to determine how a project will affect a tribe's treaty rights, in this case those arising from the Fort Laramie Treaty of 1851. Standing Rock III, 255 F. Supp. 3d at 130–31 (citing Fort Laramie Treaty of 1851, art. 5, 11 Stat. 749, 1851 WL 7655 ). As relevant at this stage, the Corps is required to consider how the pipeline would affect the Tribes' hunting and fishing resources. Id. at 130–32 ; see 11 Stat. 749, art. 5 (reserving to Tribes "the privilege of hunting" and "fishing" on treaty lands).

B. Factual History

As the issues present in the current round of briefing are fairly cabined, the Court will provide only an abbreviated version of the factual history laid out in its prior Opinions in this case. See, e.g., Standing Rock III, 255 F. Supp. 3d at 114–16.

The Dakota Access Pipeline, designed to carry crude oil from North Dakota to Illinois, crosses several waterways along its 1,200-mile path. Id. at 114 (citing Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock I ), 205 F. Supp. 3d 4, 7 (D.D.C. 2016) ). One of these is Lake Oahe, an artificial reservoir in the Missouri created by construction of a dam in 1958. Id. (citing Standing Rock I, 205 F. Supp. 3d at 13 ). The "lake" begins near Bismarck, North Dakota, and extends about 231 miles south, ending at the Oahe Dam in South Dakota. See ECF No. 172-1 (Final EA) at 35. In creating Lake Oahe, Congress effected a taking of 56,000 acres from Standing Rock's Reservation and 104,420 acres from the trust lands of the Cheyenne River Sioux Tribe. Standing Rock III, 255 F. Supp. 3d at 114 (citing Act of Sept. 2, 1958, Pub. L. No. 85-915, 72 Stat. 1762). The Tribes now rely on the waters of Lake Oahe in myriad ways, including for drinking, agriculture, industry, and sacred religious and medicinal practices. Id.; see, e.g., ECF No. 289-3 (Declaration of Faith Spotted Eagle), ¶¶ 5–22.

As the first step in determining whether it would permit Dakota Access to construct a portion of DAPL under Lake Oahe, the Corps published a Draft EA, finding that it would not need to prepare the more involved EIS. Standing Rock III, 255 F. Supp. 3d at 115–16 ; ECF No. 6-19 (Draft EA) at 1. The Tribes and the Department of the Interior commented, both urging the Corps to go further and prepare an EIS. Standing Rock III, 255 F. Supp. 3d at 115–16. The EPA also commented, suggesting that the Corps must at least prepare a Mitigated FONSI. Id. at 116. In July 2016, the Corps published its Final EA — again finding that no EIS was required — and a Mitigated FONSI. See ECF Nos. 172-1 ...