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

985 F.3d 1032

STANDING ROCK SIOUX TRIBE, et al., Appellees

v.UNITED STATES ARMY CORPS OF ENGINEERS, Appellant

Dakota Access LLC, Intervenor

No. 20-5197

C/w 20-5201

United States Court of Appeals, District of Columbia Circuit.

Argued November 4, 2020

Decided January 26, 2021

James A. Maysonett, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for appellant United States Army Corps of Engineers. With him on the briefs were Jeffrey Bossert Clark, Assistant Attorney General, Jonathan D. Brightbill, Principal Deputy Assistant Attorney General, Eric A. Grant, Deputy Assistant Attorney General, and Andrew C. Mergen and Erica M. Zilioli, Attorneys, Washington, DC.

Miguel A. Estrada, Washington, DC, argued the cause for appellant Dakota Access LLC. With him on the briefs were William S. Scherman and David J. Debold, Washington, DC.

Wayne K. Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, and Matthew A. Sagsveen, Solicitor General, were on the brief for amicus curiae the State of North Dakota.

Tim Fox, Attorney General, Office of the Attorney General for the State of Montana, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General for the State of Indiana, Thomas M. Fisher, Solicitor General, Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Daniel Cameron, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Doug Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Dave Yost, Attorney General, Office of the Attorney General for the State of Ohio, Jason Ravnsborg, Attorney General, Office of the Attorney General for the State of South Dakota, Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, and Bridget Hall, Attorney General, Office of the Attorney General for the State of Wyoming, were on the brief for amici curiae the States of Indiana, Montana, and 9 other states in support of appellants.

David H. Coburn, Joshua H. Runyan, Richard S. Moskowitz, Tyler J. Kubik, Stephen J. Obermeier, Wesley E. Weeks, John P. Wagner, Steven M. Kramer, Steven P. Lehotsky, Washington, DC, and Michael B. Schon, were on the brief for amici curiae American Fuel & Petrochemical Manufacturers, et al. in support of appellants.

Jared R. Wigginton and Kent Mayo, Washington, DC, were on the brief for amici curiae North Dakota Farm Bureau, et al.

Christopher O. Murray, Santa Barbara, CA, was on the brief for amicus curiae for appellant North Dakota Water Users Association in support of appellants.

Jan Hasselman, Seattle, WA, argued the cause for appellees Standing Rock Sioux Tribe, et al. With him on the brief were Patti A. Goldman, Seattle, WA, Nicole E. Ducheneaux, Omaha, NE, Jennifer S. Baker, Birmingham, AL, Rollie E. Wilson, Washington, DC, Jeffrey Rasmussen, Michael L. Roy, Jennifer P. Hughes, and Elliott A. Milhollin, Washington, DC. Jeremy J. Patterson, Louisville, CO, entered an appearance.

Joel West Williams was on the brief for amici curiae the Great Plains Tribal Chairmen's Association, et al. in support of appellees.

Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Seth G. Schofield, Senior Appellate Counsel, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Jamie B. Jefferson and Joshua R. Purtle, Deputy Attorneys General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Christian Douglas Wright, Director of Impact Ligitation, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Clare Kindall, Solicitor General, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Elizabeth Morrisseau, Assistant Attorney General, Gurbir S. Grewal, Attorney Gene ral, Office o f the Attorne y General for the State of New Jersey, Letitia James, Attorney General, Office of th e Attorney Gen eral for the S tate of New Yo rk, Aaron Ford, Attorney Gener al, Office of t he Attorney Gen eral for the St ate of Nevada, Hector Balderas , Attorney Gene ral, Office of t he Attorney Gene ral for the Stat e of New Mexico, Ellen Rosenblum, Attorney General, O ffice of the Atto rney General for the State of Oreg on, Paul Garrahan, Attorney-in-Cha rge, Steven Novick , Special Assist ant Attorney Genera l, Peter F. Neronha, Attorney General, Office of the Atto rney General for the State of Rhode Isla nd, Tricia K. Jedele, Special Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Noah Guzzo Purcell, Solicitor General, Leevin T. Camacho, Attorney General, Office of th e Attorney General for t he Territory of Guam, Th omas J. Donovan, Jr., At torney General, Office o f the Attorney General f or the State of Vermont, Nicholas F. Persampieri, Assistant Attorne y General, Karl A. Racine, Attorney General, Office of the Attorney Ge neral for the District of Columbia, Loren L. AliKhan, Solicitor General, Jacqueline R. Bechara, Appellant Litiga tion Fellow, and Sarah Utley, Houston, TX, were on the brief for amici curiae States of Massachusetts, et al. in support of appellees.

Douglas P. Hayes was on the brief for amici curiae Sierra Club, et al. in support of appellees.

Kenneth Rumelt and James G. Murphy were on the brief for amicus curiae Members of Congress in support of appellees.

Mary Kathryn Nagle, Washington, DC, was on the brief for amicus curiae National Indigenous Women's Resource Center, Inc. in support of appellees.

Before: Tatel and Millett, Circuit Judges, and Sentelle, Senior Circuit Judge.

Tatel, Circuit Judge:

Lake Oahe, created when the United States Army Corps of Engineers flooded thousands of acres of Sioux lands in the Dakotas by constructing the Oahe Dam on the Missouri River, provides several successor tribes of the Great Sioux Nation with water for drinking, industry, and sacred cultural practices. Passing beneath Lake Oahe's waters, the Dakota Access Pipeline transports crude oil from North Dakota to Illinois. Under the Mineral Leasing Act, 30 U.S.C. § 185, the pipeline could not traverse the federally owned land at the Oahe crossing site without an easement from the Corps. The question presented here is whether the Corps violated the National Environmental Policy Act, 42 U.S.C. § 4321, by issuing that easement without preparing an environmental impact statement despite substantial criticisms from the Tribes and, if so, what should be done about that failure. We agree with the district court that the Corps acted unlawfully, and we affirm the court's order vacating the easement while the Corps prepares an environmental impact statement. But we reverse the court's order to the extent it directed that the pipeline be shut down and emptied of oil.

I.

"In order to ‘create and maintain conditions under which man and nature can exist in productive harmony,’ the National Environmental Protection Act (NEPA), 42 U.S.C. § 4331(a), requires any federal agency issuing a construction permit, opening new lands to drilling, or undertaking any other ‘major’ project to take a hard look at the project's environmental consequences, id. § 4332(2)(C) ...." National Parks Conservation Association v. Semonite , 916 F.3d 1075, 1077 (D.C. Cir. 2019). "To this end, the agency must develop an environmental impact statement (EIS) that identifies and rigorously appraises the project's environmental effects, unless it finds that the project will have ‘no significant impact.’ " Id. (quoting 40 C.F.R. § 1508.9(a)(1) ). "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) ). Preparing an EIS is a significant undertaking, requiring the agency to "consult with and obtain the comments of" other relevant agencies and publish a "detailed statement" about the action's environmental effects. 42 U.S.C. § 4332(2)(C).

"Whether a project has significant environmental impacts, thus triggering the need to produce an EIS, depends on its ‘context’ (regional, locality) and ‘intensity’ (‘severity of impact’)." National Parks , 916 F.3d at 1082 (quoting 40 C.F.R. § 1508.27 (2018) ). The operative regulations (since amended, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020) ) enumerate ten factors that "should be considered" in assessing NEPA's "intensity" element. 40 C.F.R. § 1508.27(b) (2019). "Implicating any one of the factors may be sufficient to require development of an EIS." National Parks , 916 F.3d at 1082. This case concerns the fourth factor—"[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) (2019).

The Dakota Access Pipeline (DAPL), nearly 1,200 miles long, is designed to move more than half a million gallons of crude oil from North Dakota to Illinois each day. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III ), 255 F. Supp. 3d 101, 114 (D.D.C. 2017). DAPL crosses many waterways, including Lake Oahe, an artificial reservoir in the Missouri River created when the Corps constructed a dam in 1958. The dam's construction and...