What Else Is there to Say?

Supposedly only Nixon could go to China. What might a Trump Administration mean for the Dakota Access Pipeline?

MoMa has an outstanding collection of twentieth century art (including Edward Ruscha’s antic classic OOF).  Which understatement deserves another: President-elect Donald J. Trump promises to bring the unexpected back to NEPA.  Indeed, Trump’s election has already given us one surprise: the Corps of Engineers’ decision yesterday to prepare a full impact statement on a right-of-way for the Dakota Access Pipeline (DAPL).  This post considers that move and its implications for a President-elect whose campaign rhetoric included robust support for more fossil fuel infrastructure.

What’s All the Fuss?

As the media mayhem surrounding this particular pipeline right-of-way has gone viral, NEPA’s centrality to the Corps’ actions has been lost.  The decision announced yesterday was to scrap only the plans for a very summary “environmental assessment” and “finding of no significant impact” (EA/FONSI)—one the Corps had successfully defended in court—and to instead prepare a full “environmental impact statement” (EIS).  This is the legal source of the headlines today handing “victory” to the Tribe (and its horde of protester-volunteers) from the Corp’s announcement that it would seek “alternatives” for the right-of-way crossing Lake Oahe just upstream from the reservation {See this piece, for example, from The Guardian.}

However, all this promises (at most) is that an EIS will ensue.  To be sure, because many EISs take years to prepare, this move by an outgoing Obama Administration’s Jo Ellen Darcy (Assist. Sec. of the Army, Civil Works) has at least some air of obstructionism to it.  At least one recent pipeline EIS took so long to prepare that the eventual permit denial came in a different political context.

After the election settled that a fossil-fuel-boosting Republican will occupy the White House for the next four years, the Obama Corps of Engineers’ sudden decision that this right-of-way application deserves a second, more in-depth look leaves PeOTUS in an interesting dilemma: prepare a hasty, perhaps sub-standard EIS quickly or delay the pipeline for years with a carefully crafted document weighing a variety of imponderables.

After all, the memo Darcy penned to subordinates yesterday cites new-found evidence about the Standing Rock Sioux Tribe’s treaty rights to the flow of the water in question and the potential environmental injustice that would result should a pipeline failure occur immediately upstream of the tribe’s drinking water source. This set of treaties is notoriously complex, adding a thick layer to any legitimately in-depth consideration of DAPL’s alternatives right there.  Secondly, legally, it is every agency’s right—assuming discretionary action still remains to be taken—to decide that NEPA counsels for more investigation and caution, often to the substantial dismay of project applicants like Energy Transfer Partners.  As Darcy said,

NEPA requires that Federal agencies consider reasonable alternatives to recommended actions whenever those actions “involve[] unresolved conflicts concerning alternative uses of available resources.” See 42 U.S.C. § 4332(2)(E).  The Council on Environmental Quality (CEQ) has advised that in some circumstances, including in some cases where environmental effects on Tribal resources are at stake, agencies “should heighten agency attention to alternatives (including alternative sites), mitigation strategies, monitoring needs, and preferences expressed by the affected community or population.”

Memorandum for Commander, U.S. Army Corps of Engineers, Jo Ellen Darcy, Assist. Sec. Army (Civ. Works), Dec. 4, 2016 (citations omitted).

We’ve written about NEPA § 102(2)(E) before.  It’s about alternative uses of scarce resources where controversy arises—not about significant impacts per se.  But might a Trump Administration simply reverse this sudden reversal of course at Standing Rock?  The answer is: probably not without seriously undermining the credibility of the United States and risking an embarrassing NEPA defeat.

The Corps Decision @ DAPL

The Corps of Engineers was initially content to take a cursory NEPA look at running this massive pipeline as proposed.  After all, as massive as the pipeline is, the bit of it crossing the Missouri River/Lake Oahe corridor is relatively small.  The risk of a new pipeline like it failing catastrophically is relatively slight.  And so the Corps prepared an EA/FONSI, a NEPA document that was challenged and upheld in court on standard—if also unedifying—grounds: uncertainty about the environmental footprint of the action proposed.  But the swell of controversy just kept getting bigger, and the Corps’ meetings with the Tribe and protesters kept suggesting more and more trouble for DAPL.  Hence the decision to reconsider, to expand the record, and to do so in a search for “alternatives.”  Again, Darcy:

I have concluded that a decision on whether to authorize [DAPL] to cross Lake Oahe at the proposed location merits additional analysis, more rigorous exploration and evaluation of reasonable siting alternatives, and greater public and tribal participation and comments as contemplated in the CEQ’s [regulations, at] 40 C.F.R. § 1502.14 and § 1503.1.  Accordingly, the Army will not grant an easement to cross Lake Oahe at the proposed location based on the current record.  The robust consideration of reasonable alternatives that I am directing, together with an analysis of potential spill risk and impacts, and treaty rights, is best accomplished, in my judgment, by preparing an [EIS] that satisfies the accompanying procedures for broad input and analysis.

Darcy Memo at 3.

Notice in this passage the mention of treaty rights, spill risks, and “reasonable siting alternatives”—three huge sets of imponderables at Standing Rock.  Another imponderable: the environmental costs of transporting Bakken Crude without pipelines (something the Corps, if not the environmentalists, might well consider).  Indeed, the Corps’ own procedure for granting these rights-of-way is currently under revision, creating at least some uncertainty about how an EIS should be structured.

So what might an EIS like this involve? Darcy’s suggestions in her memo are probably less informative than past practices where hard-to-quantify and hard-to-characterize variables intersect in EISs.  On that front, the courts have been increasingly deferential to any EIS that candidly explains the uncertainties and/or intangibles, explains the “purpose and need” for the underlying action(s), and document’s the decision-maker’s options in analyzing the questions.  Notably absent from Darcy’s suggestions—which are all tribe-focused—are the greenhouse gas (GHG) implications of DAPL.  GHGs and continued investment in fossil fuel infrastructure, of course, explain much of the environmental community’s interest in the pipeline.  Still to be seen is whether a DAPL EIS might even mention GHG factors—which of course wouldn’t be so much about “alternative” pipeline sites as they would be “alternatives” to further Bakken Shale development.  Because the Corps is responding to a Rivers & Harbors Act § 14 permit application and that applicant’s purposes and needs, GHGs won’t likely find their way into the EIS.  And expect that to feature in the lawsuit to follow should a Trump Administration EIS ever be finalized!

{Image: © Elizabeth Leong 2016}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
One Comment

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  • David Keys
    13 January 2017 at 14:44 -

    The GHG issue should be part of the cumulative effect analysis and part of the 40 CFR 1502.22, Incomplete or Unavailable Information analysis as well. In Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985),the court reversed the order that directed defendant Army Corps of Engineers to prepare an EIS, but stated that defendant Army Corps of Engineers should perform a cumulative impacts analysis. The court vacated the injunction that enjoined defendant corps from issuing similar permits, but upheld the injunction that enjoined defendant developer from work on the project pending the cumulative effects analysis.