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

255 F.Supp.3d 101

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 June 14, 2017

Jeffrey S. Rasmussen, Jennifer S. Baker, Fredericks Peebles & Morgan LLP, Louisville, CO, Patricia Ann Marks, Fredericks Peebles & Morgan LLP, Washington, DC, Michael L. Roy, Hobbs, Straus, Dean & Walker, LLP, Washington, DC, for Plaintiffs.

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

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Designed to transport oil from the Bakken oil fields in North Dakota to a storage hub in southern Illinois, the Dakota Access Pipeline (DAPL) has also borne substantial controversy in its wake. Most significant has been the opposition from Indian tribes whose reservations lie in close proximity to the pipeline's crossing of the Missouri River at Lake Oahe. To block Dakota Access LLC's construction of that last segment and its operation of DAPL, the Standing Rock Sioux Tribe filed this suit in July 2016, and the Cheyenne River Sioux Tribe intervened shortly thereafter.

The Tribes have since mounted two substantial legal challenges to DAPL, neither of which yielded success. The first contended that the grading and clearing of land for the pipeline threatened sites of cultural and historical significance, and that the U.S. Army Corps of Engineers had flouted its duty to engage in tribal consultations pursuant to the National Historic Preservation Act. See 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). The second maintained that the presence of oil in the pipeline under Lake Oahe would desecrate sacred waters and make it impossible for the Tribes to freely exercise their religious beliefs, thus violating the Religious Freedom Restoration Act. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock II ), No. 16-1534, 239 F.Supp.3d 77, 80–81, 2017 WL 908538, at *1 (D.D.C. Mar. 7, 2017).

Now that the Court has rejected these two lines of attack, Standing Rock and Cheyenne River here take their third shot, this time zeroing in DAPL's environmental impact. They seek summary judgment on several counts related to the Corps' alleged failure to comply with the National Environmental Policy Act. In particular, the Tribes believe that the Corps did not sufficiently consider the pipeline's environmental effects before granting permits to Dakota Access to construct and operate DAPL under Lake Oahe, a federally regulated waterway. This volley meets with some degree of success. Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline's effects are likely to be highly controversial.

To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.

Table of Contents

I. Background...112

A. NEPA...112

B. Factual History...114

C. Litigation...116

1. Filing of Suit...116

2. Further Consideration...117

3. A New Administration...119

II. Legal Standard...121

III. Analysis of Standing Rock's Claims...122

A. Decision Not to Prepare EIS...122

1. Hard Look/Convincing Case...123

a. Extent of Record...123

b. Spill–Risk Analysis...125

c. Impacts Analysis Re: Treaty Rights...130

2. Alternatives...134

3. Environmental Justice...136

B. Decision to Grant the Easement...140

1. Policy Change...141

2. Trust Responsibilities...143

C. NWP 12...145

D. Remedy...147

IV. Analysis of Cheyenne River's Claims...148

A. Section 408 Decision...148

1. Impairment...148

2. Injurious to Public Interest...150

3. Other Arguments...150

B. Easement Decision...152

1. Section 185(b)(1)...152

2. Section 185(h)(2)...153

3. Section 185(x)...154

C. Trust Responsibilities...155

D. Consultation...155

V. Conclusion...160

I. Background

To familiarize the reader with the background information relevant to its analysis, the Court first briefly sets out the National Environmental Policy Act's statutory framework and then separately discusses the factual history and litigation to date.

A. NEPA

The National Environmental Policy Act, the statute under which the majority of the Tribes' claims are brought, has two aims: it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action," and "it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process."

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citation omitted). NEPA's requirements are "procedural," requiring "agencies to imbue their decisionmaking, through the use of certain procedures, with our country's commitment to environmental salubrity." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C. Cir. 1991). Importantly, "NEPA does not mandate particular consequences," id. at 194, and courts are discouraged from substituting their own policy judgments for that of the agency. See N. Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980) ; see also Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). "NEPA merely prohibits uninformed—rather than unwise—agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Agency actions with adverse environmental effects can thus be NEPA compliant where "the agency has considered those effects and determined that competing policy values outweigh those costs." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir. 2009) (citations omitted).

Under NEPA, an agency must prepare an Environmental Impact Statement for any proposed major federal action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An EIS must detail the environmental impact of the proposed action, any unavoidable adverse effects, alternatives to the proposed action, the relationship between short-term uses of the environment and long-term productivity, and any irreversible commitments of resources. Id.

To determine whether an agency must prepare an EIS, it first drafts an Environmental Assessment. See 40 C.F.R. § 1501.4(b). An EA is a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact."Id.§ 1508.9(a). The EA must discuss the need for the proposal, the alternatives, the environmental impacts of the proposed action and alternatives, and the agencies and persons consulted. Id.§ 1508.9(b). If, after preparing an EA, the agency determines that an EIS is not necessary, it must prepare a Finding of No Significant Impact (FONSI) setting forth the reasons why the action will not have any significant impact on the environment. Id.§§ 1501.4(e), 1508.13 ; cf. Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) ("If any‘significant’ environmental impacts might result from the proposed agency action then an EIS must be prepared before agency action is taken.") (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) ). If the action will not have such impact because of the agency's commitment to ensure the performance of mitigation measures, the agency prepares a Mitigated FONSI. See 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://energy.gov/sites/prod/files/NEPA-CEQ_Mitigation_and_Monitoring_Guidance_14Jan2011.pdf. Mitigation includes "[a]voiding an impact by not taking a certain action"; "[m]inimizing an impact by limiting the degree or magnitude of the action"; "[r]ectifying an impact by repairing, rehabilitating, or restoring the affected environment"; "[r]educing or eliminating an impact over time, through preservation and maintenance operations"; and "[c]ompensating for an impact by replacing or providing substitute resources or environments." Id. at 4–5. As will be explained below, the Corps here prepared an EA and a Mitigated FONSI. The central question this Opinion answers is whether that was sufficient.

B. Factual History

As those who have followed this litigation and the concomitant public debate well know, DAPL is a nearly 1,200–mile pipeline designed to move more than half a million gallons of crude oil from North Dakota to Illinois every day. Standing Rock I, 205 F.Supp.3d at 7. Although no government approval is necessary for oil pipelines traversing private lands, it is required for those segments that cross federally regulated waters. Id. DAPL crosses such waterways at hundreds of discrete places along its route, including, most prominently, at Lake Oahe. Id.

Created by the Corps in 1958 via a dam constructed on the Missouri River, Lake Oahe is a reservoir that spans North and South Dakota and borders the Standing Rock and Cheyenne River Sioux Reservations to the east. Id. at 13 ; ECF No. 172–1 (Environmental Assessment) at 35, 75; ECF No. 97–1 (CRST Second Amended Complaint), ¶ 29. DAPL crosses the Lake 0.55 miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation. See Standing Rock II, 239 F.Supp.3d at 80–81, 2017 WL 908538, at *1 ; EA at 75. For orientation purposes, the southern border of the former Reservation also acts as the northern border of the latter. See ECF No. 117–5 (Map of Current...