I’ve previously discussed the Dakota Access Pipeline (DAPL) litigation on this site.  Now the case has taken another turn, and this time it was one towards the rule of law.  According to an important ruling on Wednesday, the Army Corps failed adequately to consider the controversy surrounding the pipeline’s potential impacts—including impacts of an oil spill on environmental justice and the rights of the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe (the “Tribes”).  The district court made clear that the Army Corps can no longer stay silent on the disproportionate threat that the pipeline poses to “the distinct cultural practices” of the Tribes.   

It turns out, in other words, that the Obama Administration was right: the Army Corps needs to take a harder look at the pipeline’s impacts.  As I explained in my earlier post, the Obama Administration recognized that the Corps needed to prepare an environmental impact statement (EIS) before giving a green light to the pipeline.  The Trump Administration quickly abandoned that commitment, issuing the necessary easement in February after the President called for “expedited” resolution.  The Tribes challenged that about-face, and the Army Corps responded by arguing the Obama Administration was wrong to commit to an EIS.

Do “elections have consequences”?  Indeed, they do.  The district court did not rule out the possibility of policy change by the Trump Administration, nor did the Tribes prevail on every aspect of their challenge to the Army Corps’ action.  But the district court did hold that the National Environmental Policy Act demands more than silence and “bare-bones” assessments of the threat the pipeline poses to the Tribes’ rights.  This is “administrative law 101,” as I’ve discussed before.  The agency must consider and reasonably respond to relevant concerns.  The Tribes’ rights and environmental justice, the district court made clear, cannot be ignored or casually brushed aside by the Army Corps.

In its rush to permit the pipeline, for example, the Army Corps did not address the social, economic, and cultural “factors that might amplify [the Standing Rock Sioux Tribe’s] experience of the environmental effects of an oil spill.”  Oil pipelines “leak and spill,” as Standing Rock Sioux Chairman Dave Archambault II pointed out after DAPL had a spill in April.  The Army Corps hasn’t adequately considered the disproportionate threats a spill poses to the Tribes’ rights.  And considering such environmental justice impacts, the district court held, is something the Army Corps must do.   

Should the pipeline be shut down pending further review? Under D.C. Circuit precedent, that question turns on how serious the Army Corps’ errors were and the disruptive consequences of a court order vacating the DAPL permits and easement.  The D.C. Circuit has said there’s a presumption in favor of vacatur in NEPA cases, but the district court, citing the “serious consequences” of shutting down the pipeline’s operations, ordered more briefing. 

Dakota Access will undoubtedly dramatize the risks of disruption in its additional briefing.  But the Tribes have a powerful response: vacatur is the primary remedy for NEPA violations, as the D.C. District Court recently put it, and “it is not clear that economic concerns are as relevant” in deciding remedies for NEPA violations as they may be elsewhere.

The district court made one thing clear with Wednesday’s ruling:  It’s long past time for the Army Corps to take a harder look at the disproportionate threats DAPL poses to the Tribes. 

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