Standing Rock: See You in Court!

The tribe's case comes down to NEPA. Here's the lay of that land.

The Trump Administration ordered the U.S. Army Corps of Engineers to do exactly what we at the Lab said back in December would seriously undermine the credibility of the United States: it reversed the Corps’ decision regarding the necessity of an Environmental Impact Statement (EIS) for the Dakota Access Pipeline (DAPL) crossing at Lake Oahe.  Earthjustice, representing the Standing Rock Sioux, filed their motion for summary judgment on Tuesday.

Recall that the Corps, after waffling throughout the fall, took the surprising step of reversing its July 2016 decision and held that a full EIS was needed for DAPL’s crossing Lake Oahe just upstream of the Standing Rock Sioux’s intakes and some traditional hunting and fishing grounds.  (This review in the N.Y. Times from last August does a nice job laying out the issues as they were then understood.)

The Assistant Secretary of the Army who reversed the agency’s course on December 4 noted that the tribe’s treaty rights had been persuasively briefed since that July EA/FONSI and that the depth and breadth of protests that had arisen at Standing Rock had created an “unresolved conflict” over the river within the meaning of NEPA § 102(2)(E). Earthjustice’s motion for summary judgment has now expertly argued just how inconsistent the Corps has been in the matter, putting it at cross purposes both with NEPA and the Administrative Procedure Act (APA).  This post explains the merits of and the obstacles confronting their NEPA arguments.

The Legal Merits

To be clear, the objection isn’t a lack of environmental review for the pipeline per se.  The “very summary” (our words) environmental assessment and ‘mitigated’ finding of no significant impact (EA/FONSI) for DAPL’s crossing Lake Oahe ran over 1200 pages, after all. There was a Biological Opinion pursuant to Endangered Species Act § 7(a)(2).  And there was significant inter-agency consultation—about the local and the broader environmental contexts and the tribe’s treaty rights.

The deficiency featuring most prominently in Earthjustice’s motion is the content of the critical part of the analysis—the spill risk assessment.  On that crucial part, both the applicant and the Corps repeatedly punted, noting only that pipeline spills are statistically rare.  Yet both US EPA and the Department of the Interior—as a reviewing and as a “cooperating” agency, respectively—remained convinced that this part of the Corps’ EA/FONSI was simply unacceptable.  Neither one had the legal power to stop the Corps from granting the easement, though.

Treaty Rights v. NEPA: A Lever for Enhancing the Spill Risk Assessment?

The Standing Rock complaint alleged that the Corps owed the public an EIS for this easement all along—regardless of the Corps’ double volta face after the election.  And that claim turns on some finer points of legal doctrine undergirding the duty to prepare an EIS.  The complaint also alleges violation of the tribes’ rights arising under the notoriously complex Fort Laramie treaties of 1851 and 1868.  Whether the risk of a future spill from the installed pipeline constitutes the kind or degree of environmental threat sufficient to trigger NEPA § 102(2)(C) (the duty to prepare and EIS) or to negate the tribes’ reserved rights under the treaties comes down to how one approaches uncertain future impacts.

As this article explains in fuller detail, NEPA courts have bridged this gully in the EIS context many times, settling on approaches partly due to the APA’s standards of review and partly due to the practical reasoning we all do about risk and uncertainty.

As a matter of judicial review, actions like the Corps’ typically combine issues of fact, conclusions of law, and exercises of discretionary judgment.  Each is subject to slightly (at least semantically) different standards of review in court.  The last word from our Supreme Court about this stack of issues where an agency decides not to prepare an EIS is Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989).  (Marsh was about supplementing a complete EIS, but the reasoning is fully applicable to threshold determinations.)

Though several lower court decisions before Marsh had suggested that the threshold NEPA determinations were subject to some special standard of review, Marsh settled that the usual standards in the APA applied and that, in particular, the APA’s “arbitrary and capricious” standard for fact findings governed whatever factual elements were being challenged.   And that has some important implications for the court in which the DAPL EA/FONSI is being litigated.

Where some of the lower courts have held that a kind of sliding scale approach should be taken to various possible impacts from a proposed action (“significance” = probability x magnitude of the threat), other courts have held the agency need only articulate a plausible reason for discounting the uncertain threat at the significance threshold determination.  For cases taking the former approach, see City of New York v. U.S. Dept. of Transp., 715 F.2d 732 (2d Cir. 1983), Blue Mountains Biodiveristy Proj. v. Blackwood, 161 F.3d 1208 (9th Cir. 1998), and New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 481-82 (D.C. Cir. 2012).  Cases taking the latter approach include Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003), New Jersey Dept. of Envt’l. Prot. v. Nuclear Regulatory Comm’n, 561 F.3d 132, (3d Cir. 2009), Hapner v. Tidwell, 621 F.3d 1239, 1244-46 (9th Cir. 2010), and Sierra Club v. Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011).

If this case turning on the uncertainty of future spill risks were in the Ninth Circuit, for example, it would almost certainly bend more favorably to Earthjustice’s arguments (given that jurisdiction’s more favorable precedents).  The Standing Rock case is before the district court for the District of Columbia Circuit, Judge Boasberg presiding.  And the D.C. Circuit’s doctrine—dating back before Marsh—has long channeled review of a NEPA § 102(2)(C) “significance” determination with a unique four-part test:

First, the agency [has] accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a ‘hard look’ at the problem in preparing the EA. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that the changes or safeguards in the project sufficiently reduce the impact to a minimum.

Town of Cave Creek v. FAA, 325 F.3d 320, 327 (D.C. Cir. 2003) (citing Maryland Nat’l Cap. Park and Planning Comm’n v. U.S. Postal Serv., 487 F.2d 1029, 1040 (D.C. Cir.1973); Grand Canyon Trust v. FAA, 290 F.3d 339, 340-41 (D.C. Cir. 2002)).

One key question for the judge(s) hearing Earthjustice’s case, then, is this: to what extent does this four-part test depart from simple arbitrariness review of the kind Marsh signaled.  In 2011, a panel of the D.C. Circuit insisted it departs not at all.  See Antwerp, 661 F.3d at 1154.  But that may not be precisely correct.  For the four-part test isolates the persuasiveness of the agency’s “finding,” i.e., its FONSI, as something that must be demonstrated by the agency.  In other words, the D.C. Circuit’s doctrine treats the FONSI like its name: a finding, to be scrutinized as such, like any other factual conclusion carrying a burden of production (or persuasion) in a court of law.

Of course, pipelines leak.  Indeed, according to the Pipeline and Hazardous Materials Safety Administration, about 60 oil spills involving pipelines occur annually with about 47,000 barrels being spilled (on average) as a result.  Given the information strewn about the EA/FONSI, though, such“averages” apparently do very little to contextualize or otherwise clarify this risk being put to this subpopulation of Americans by this Bakken-serving installation.  After all, every pipeline is different if only because of who is installing it and with what degree of care.  When one factors in the harsh winter conditions at Lake Oahe, the challenging properties of Bakken crude for pipelines, and other site-specific aspects of the threat, the averages start to look less informative.

To be sure, DAPL—and, apparently, now the Corps—will insist that this risk, though uncertain, is probably small.  Putting aside the question-begging stink such arguments leave, the EA/FONSI leaned heavily on the extent of “mitigation” planning and tactics the pipeline owner would have in place to minimize any spill in the event of a pipeline failure (see §, at pp. 36-43).  And that means the Corps, from the face of its own EA/FONSI, relied to a material degree on the “mitigation” measures promised in the EA/FONSI.  But the D.C. Circuit’s own doctrine for threshold determinations and the “finding” they entail shouldn’t allow the use of “mitigation” promises to shore up an otherwise implausible threat assessment.

Spill Risk Assessments v. Justice: An Uphill Fight Ahead

The July 2016 EA/FONSI examined the proposed route and the “no action” alternatives in detail (rejecting five other alternatives without giving them

Map of Major US Oil Plays

any “detailed analysis”).  It raised and rejected “cumulative” impacts (however cursorily).  Perhaps most importantly, it was generally menacing just in its foreboding girth.  Having searched and scrutinized this EA/FONSI, one is struck by the impression that preparing a full EIS wouldn’t have entailed much more information gathering or authoring.  Of course, an EIS would’ve had to explore more than two alternatives and it may have had to explore different routes for DAPL.  The most telling fact about this pipeline is that the Corps and the permittee agreed to move DAPL’s Missouri River crossing downstream of Bismarck to avoid subjecting its water intakes to the spill risk (whatever its magnitude).

And an EIS would’ve entailed more delay for certain.  The public processes for an EIS alone would’ve entailed a year+ further delay for this easement—for a pipeline that was already being built last fall all along its length (except at the Standing Rock crossing) and which reportedly could be operational before spring.

Pipeline protests aren’t going away and that is worrisome news for the capital behind them.  As this map of DAPL makes clear, it crosses many surface waters and has attracted a great deal of legal opposition independent of Standing Rock.  Timing is everything with investments of this sort, though.  With oil prices still in the doldrums, getting “cheap” oil to ports bound for export markets is often the point. (See this post at the American College of Environmental Lawyers by Prof. Pat Parenteau suggesting that Bakken Crude’s “breakeven point” is $29 a barrel.)  As the court weighs the NEPA arguments at Standing Rock, another question might loom beyond the merits: the relief to which the plaintiffs are entitled should the pipeline be completed by the time of decision.  Stay tuned for that follow-up story here!

We did say in December that President Trump promised to bring the unexpected back to NEPA.

{Image: the Barrett Prettyman U.S. courthouse in Washington, D.C. © Wikipedia}

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.
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