DAPL: The Winter of Trump’s Environmental Agenda?

NEPA has played a leading role in the rollback of equitable relief for environmental plaintiffs. It may get worse.

The world waits as the D.C. Circuit Court of Appeals weighs the Standing Rock Sioux Tribe’s (SRST) appeal in their case opposing the Army Corps of Engineers’ approval of the Dakota Access Pipeline (DAPL) crossing Lake Oahe.  In the end, the argument on appeal comes down to a NEPA claim: that the Corps should’ve prepared a full environmental impact statement (EIS) rather than the more limited environmental assessment and finding of no significant impact (EA/FONSI).  As NEPA veterans and environmental lawyers know, though, what’s on appeal now and might remain so for months to come is the trial court’s refusal to afford any “preliminary” injunctive relief to the SRST plaintiffs while the wheels of justice grind (slowly) around the merits of the Tribe’s claims.  This post considers that status quo and how things might get worse for environmental plaintiffs before they get better.

Winter v. NRDC: A NEPA Trainwreck

In 2008, the Supreme Court, in a terse opinion from Chief Justice Roberts, reversed the Ninth Circuit and held that a preliminary injunction staying the challenged agency actions while the merits of a plaintiff’s NEPA claim are adjudicated is only available where that plaintiff can prove that s/he (1) is likely to succeed on the merits; (2) is likely to suffer irreparable harm in the absence of preliminary relief; (3) that “the balance of equities tips” in his or her favor; and (4) that an injunction is in the public interest.  See Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).  The ‘Winter’ in that case was Donald Winter, the Secretary of the Navy—who was conducting the challenged marine sonar training exercises at the express written direction of the President.  See id. at 373 (reviewing POTUS’s exemption of the exercises under the Coastal Zone Management Act and finding the exercises “in the paramount interest of the United States”).  The Supreme Court made clear that enjoining the Navy while a NEPA case was adjudicated against it should only happen if NRDC could carry a rather heavy burden given the nature of the Executive Branch’s positions and the judiciary’s traditional deference to military matters of the kind.  And NRDC never knew in that case—until it reached SCOTUS—what that burden was.

Like its counterpart in 2006 governing permanent injunctions, see eBay v. MercExchange, 547 U.S. 388 (2006), Winter seems to have had the effect of making preliminary injunctions harder to come by—albeit to an uncertain extent.  See Sarah J. Morath, A Mild Winter: The Status of Environmental Preliminary Injunctions, 37 Seattle Univ. L. Rev. 155 (2013). (On the availability of permanent injunctions with the eBay test governing, see this study tracking the test’s use in patent infringement litigation.)

In a follow-up shortly after Winter the Court re-emphasized that, injunctions being “a drastic and extraordinary remedy[] which should not be granted as a matter of course,” the plaintiffs’ burden must be carried as a prerequisite to any preliminary injunctive relief.  See Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2761 (2010).  Monsanto, another NEPA case we’ve studied here before, seemed to make the point with gusto: the presumption is against both preliminary and permanent injunctions.  See Monsanto, 130 S. Ct. at 2757 (“It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue [under the Court’s tests].”).

Which brings us to the SRST’s substantive claims against DAPL.  As we reviewed in our first post in this series, the Corps did an about-face after the election on precisely the argument SRST has been pressing for months: the location and circumstances surrounding this particular pipeline crossing should merit a full EIS, specifically a fuller consideration of alternative crossings than was undertaken in the EA/FONSI of July 2016.

As we reviewed in our second post, this merits issue is a bit tricky: what kind of risk assessment of the pipeline’s failing should’ve attended the determination that its impact on the environment may or won’t be “significant”?  For that, NEPA precedents offer some signals—but they must be discerned from the noise.

As the Obama Administration’s chief Corps official explained on December 4th, their about-face on the issue—on the need for an EIS instead of an EA/FONSI—came down to a re-appraisal of the circumstances which had been created by the protests and perhaps by the election itself.  The official announcement cited “the totality of circumstances in th[e] case,” and styled itself expressly as a “policy decision.”

But it also (importantly) invoked the presence of “unresolved conflicts” over natural resources like those referenced in NEPA § 102(2)(E) in claiming that the Corps was going to relent and finally commit to a full EIS.  In other words, the Obama Administration’s change of mind/heart may have less to do with the actual risk assessment and those risks’ salience to tribal fishing or reserved water rights than with the public outcry that had engulfed DAPL and the fact that a Trump Administration was on the way.  And that makes this flip-flopping up and down the chain of command within the Corps into a very interesting NEPA question.

What Legal Relevance to An Indecisive Corps of Engineers?

The interesting thing about the Trump Administration’s quick return to approving of the easement crossing Lake Oahe and the conclusion that no EIS was needed was its refusal to offer any reasons why.  Their position seems to be: ‘because the President ordered it’:

In light of the President’s memorandum to the Secretary of the Army dated January 24, 2017, published in the Federal Register on January 30, 2017 (82 FR 8661), this notice advises the public that the Department of the Army (Army), as lead agency, effective immediately, no longer intends to prepare an environmental impact statement (ESI) in connection with the Dakota Access, LLC’s request to grant an easement to cross Lake Oahe . . . . Therefore, the Notice of Intent announced in the Federal Register on January 18th, 2017 (82 FR 5543) is terminated.

Dept. of the Army, Notice of Termination of the Intent to Prepare an Environmental Impact Statement in Connection with Dakota Access, LLC’s Request for an Easement to Cross Lake Oahe, North Dakota, 82 Fed. Reg. 11021, 11021 (2017).

Assume for the sake of argument that the President has the power to order a reversal of an agency determination like the one the Corps made on December 4.  The review of the original EA/FONSI should still be about its adequacy under the circumstances of this case.  And those circumstances include at least the following (troubling) facts: (1) no actual spill risk assessment was done for the pipeline’s crossing at Lake Oahe; and (2) the pipeline was moved from an earlier proposed location upstream of the city of Bismarck, ostensibly because of the spill risks it posed to the communities immediately downstream.

Applying the D.C. Circuit’s arbitrariness standards to the Corps determinations recorded in the Corps’ EA/FONSI yields this much: One searches the EA/FONSI in vain for the “convincing case” that none of the dozen+ factors set forth in 40 C.F.R. § 1508.27 to define “significantly” for purposes of NEPA § 102(2)(C) was present at Lake Oahe.  See Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011).  And given the U.S. Government’s role as “trustee” to these tribes that have ceded so much to it throughout our history, that is a rather odd way to discharge obligations like those under NEPA.

Sioux Reservations in History

Indeed, if the agency itself was so undecided that it took a direct order from POTUS finally to move on, it might be easier to infer that that ‘convincing case’ just isn’t to be found in the record. For, in the absence of objective probabilistic evidence, one official’s subjective probability estimate stacked against contrary subjective estimates from other officials or from participants in the proceeding does not constitute a ‘convincing case.’  See, e.g., Owner-Operator Indep. Drivers Ass’n, Inc. v. Federal Motor Carrier Safety Admin., 494 F.3d 188, 203-05 (D.C. Cir. 2007) (Garland, J., for the court).

It should not suffice that the officers in the Corps chain of command now merely pronounce utter certainty that the measures taken to control spill risks suffice if that same chain of command only days prior had expressed meaningful doubts in the face of the same opposition.  Cf. Michael V. Frank, Choosing Safety: A Guide to Using Probabilistic Risk Assessment and Decision Analysis in Complex, High-Consequence Systems 14-16 (2008) (differentiating between objective probability and confidence levels in estimating the probability of an event or its consequences).  As the late Justice Scalia would have said, ipse dixit is not proof.  Cf. Sierra Club v. Watkins, 808 F. Supp. 852, 867-68 (D.D.C. 1991) (“It is logical to discount the most horrible accidents by the fact that they are unlikely to occur; otherwise the worst accidents would dominate a risk assessment to an improper degree.  The court should . . .defer to an agency’s decision to use a particular assessment methodology that is consistent with general principles of science.”).

What Relief for a NEPA Violation Left Unremedied Until It’s ‘Too Late’?

From accounts on the ground, while the parties wait for the courts to adjudicate their claims, the DAPL crossing at Lake Oahe and Energy Transfer Partners’ wider effort to bring DAPL into service are proceeding quickly.  Their strategy is obvious: present a fait accompli even if the courts ultimately decide the Corps violated NEPA and/or, should it matter to the judges, to perhaps influence the determination(s) that a NEPA violation even occurred.

Indeed, this seems to have been their strategy even before the district court denied SRST’s request for a preliminary injunction back in September. They revealed as much at the hearing on that motion.  (That’s the decision currently on appeal at the D.C. Circuit even as Judge Boasberg weighs the motions for summary judgment.)

So what could a court do, say, in April supposing it finds a NEPA violation and/or that the preliminary injunction should’ve been granted? What if by then DAPL is already moving Bakken crude by the ton?  Judicial power to invalidate the agency permission given at Lake Oahe is not in doubt.  The judicial prudence of doing so is. One of the original precedents encouraging lower courts to exercise such power carefully, Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), took pains to note that the discretion to refuse an injunction when enforcing federal environmental statutes stemmed from the fact that injunctions were not the only way to ensure compliance with those statutes.  Id. at 314-15.  By parity of reasoning, though, if circumstances have conspired to the opposite effect, the ‘balance of equities’ would be starkly in favor of granting the requested relief—especially if those circumstances were of the agency’s own making.

{Image: Oglala Lakota Ghost Dance by Frederic Remington, c. 1890}

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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