Petition for Writ of Certiorari — Dakota Access, LLC, Petitioner v. Standing Rock Sioux Tribe, et al.

Supreme Court briefSep 20, 2021

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No. 21-

IN THE

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_______________

DAKOTA ACCESS, LLC,

Petitioner,

STANDING ROCK SIOUX TRIBE, ET AL.,

Respondents.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

MIGUEL A. ESTRADA

Counsel of Record

WILLIAM S. SCHERMAN

DAVID DEBOLD

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

mestrada@gibsondunn.com

Counsel for Dakota Access, LLC

QUESTIONS PRESENTED

The National Environmental Policy Act (“NEPA”)

requires that, before taking any “major Federal action[] significantly affecting the quality of the human

environment,” a federal agency must first prepare a

“detailed” environmental impact statement (“EIS”).

42 U.S.C. § 4332(2)(C). The agency first prepares a

shorter environmental assessment to determine

whether the action’s environmental impacts are “significant.” If so, the agency prepares an EIS; if not, it

prepares a finding of no significant impact.

In Marsh v. Oregon Natural Resources Council,

this Court held that when reviewing an agency’s decision to forgo an EIS, courts must “defer” to the

agency’s “‘informed discretion’” even when they “find

contrary views more persuasive.” 490 U.S. 360, 37778 (1989). In the decision below, however, the D.C.

Circuit deviated from that approach.

It asked

whether the U.S. Army Corps of Engineers had “convinced the court” it was unnecessary to prepare an

EIS—on top of the hundreds of pages of environmental analysis the Corps already performed—for the

Corps’ decision to grant an easement for a pipeline

that crosses a narrow strip of federally owned land.

App. 15a-16a. Because the panel was not convinced

by the Corps’ response to criticisms of the pipeline, it

upheld the district court’s orders requiring the Corps

to prepare an EIS and vacating the easement.

The questions presented are:

1. Whether, under NEPA, an agency that carefully considers all criticisms of its environmental analysis must also “resolve” those criticisms to the court’s

satisfaction to justify a finding of no significant impact; and

2. Whether procedural error under NEPA per se

warrants remand with vacatur.

iii

PARTIES TO THE PROCEEDING

The parties to the proceedings below were as follows:

Dakota Access, LLC. Dakota Access, LLC was an

intervenor-defendant before the district court and appellant in the D.C. Circuit.

The Standing Rock Sioux Tribe; Yankton Sioux

Tribe and Robert Flying Hawk, Chairman of the

Yankton Sioux Tribe Business and Claims Committee; and Oglala Sioux Tribe were plaintiffs before the

district court and appellees in the D.C. Circuit.

The Cheyenne River Sioux Tribe and Steve Vance

were intervenors-plaintiffs before the district court

and appellees in the D.C. Circuit.

The United States Army Corps of Engineers was

defendant before the district court and appellant in

the D.C. Circuit.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, counsel for petitioner certify as follows:

Dakota Access, LLC is a nongovernmental entity

formed to construct and own the Dakota Access Pipeline. Dakota Access, LLC is owned 75% by Dakota Access Holdings, LLC and 25% by Phillips 66 DAPL

Holdings LLC.

These companies are in turn owned as follows:

1. Dakota Access Holdings, LLC is wholly owned

by Bakken Pipeline Investments LLC, which is owned

51% by Bakken Holdings Company, LLC, and 49% by

MarEn Bakken Company LLC (a joint venture between MPLX LP and Enbridge Inc.).

2. Bakken Holdings Company LLC is owned 60%

by ET CC Holdings LLC and 40% by Permian Express

Partners LLC, which in turn is owned 87.7% by

Sunoco Pipeline L.P. and 12.3% by Mid-Point Pipeline

LLC (an indirect subsidiary of Exxon Mobil Corporation).

3. Sunoco Pipeline L.P. is a wholly owned, indirect subsidiary of Energy Transfer LP (“ET”).

4. ET CC Holdings LLC is a wholly owned subsidiary of ET.

5. Phillips 66 DAPL Holdings LLC is owned

100% by Phillips 66 Partners Holdings LLC, which, in

turn, is 100% owned by Phillips 66 Partners LP.

The following are parent companies, subsidiaries,

or affiliates of Dakota Access, LLC, which have any

outstanding securities in the hands of the public:

1. Phillips 66 Partner LP. Phillips 66 Partner

LP holds an ownership interest in Dakota Access, LLC

through several privately held subsidiaries.

2. ET. ET holds an ownership interest in Dakota

Access, LLC through several privately held subsidiaries. ET is a publicly traded partnership and is listed

on the NYSE under the ticker symbol “ET.” ET also

owns the general partner interest and certain limited

partner interests in Sunoco LP (NYSE: SUN) and

USA Compression Partners, LP (NYSE: USAC).

3. MPLX LP, Enbridge Inc., and Exxon Mobil

Corporation have several publicly traded entities.

RULE 14.1(b)(iii) STATEMENT

Pursuant to this Court’s Rule 14.1(b)(iii), the following proceedings are related to this case:



Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs, No. 1:16-cv-01534-JEB

(D.D.C.).



Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs, Nos. 20-5197, 20-5201

(D.C. Cir.) (judgment entered Jan. 26,

2021; rehearing petition denied Apr. 23,

2021).



Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs, No. 17-5043 (D.C. Cir.) (injunction denied Mar. 18, 2017; appeal voluntarily dismissed May 15, 2017).



Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs, No. 16-5259 (D.C. Cir.) (injunction denied Oct. 9, 2016; appeal dismissed Jan. 18, 2017).

Petitioner is aware of no additional proceedings in

any court that are directly related to this case within

the meaning of Rule 14.1(b)(iii).

vii

TABLE OF CONTENTS

Page

Questions Presented ................................................... i

Parties to the Proceeding .......................................... iii

Corporate Disclosure Statement .............................. iv

Rule 14.1(b)(iii) Statement........................................ vi

Table of Appendices................................................... ix

Table of Authorities.................................................. xii

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Statutory Provisions and Regulations Involved .......1

Statement ....................................................................2

Reasons for Granting the Petition ............................15

This Court Should Review The D.C.

Circuit’s Heightened “Convince The Court”

Standard For Reviewing An Agency’s

Decision To Forgo An Environmental

Impact Statement .......................................... 16

A. The D.C. Circuit’s Standard Flouts

This Court’s Longstanding NEPA

Jurisprudence And Revives A LongSettled Circuit Split ................................ 17

B. The Panel’s Approach To The “Highly

Controversial” Factor Deepens The

Circuit Conflict ........................................ 23

II. The Decision Below Conflicts With Other

Circuits’ Rules For Remand Without

Vacatur........................................................... 27

viii

TABLE OF CONTENTS

(continued)

Page

III. The Questions Presented In This Case Are

Exceptionally Important ............................... 32

Conclusion .................................................................35

TABLE OF APPENDICES

Page

VOLUME I

APPENDIX A:

Opinion of the U.S. Court of Appeals for

the District of Columbia Circuit, 985

F.3d 1032 (Jan. 26, 2021) .............................. 1a

APPENDIX B:

U.S. Army Corps of Engineers,

Environmental Assessment – Dakota

Access Pipeline Project Crossings for

Flowage Easements and Federal Lands

(July 2016) ................................................... 41a

APPENDIX C:

Memorandum Opinion of the U.S.

District Court for the District of

Columbia Remanding Environmental

Assessment, 255 F. Supp. 3d 101 (June

14, 2017) ..................................................... 359a

VOLUME II

APPENDIX D:

Memorandum Opinion of the U.S.

District Court for the District of

Columbia Ordering Remaind Without

Vacatur, 282 F. Supp. 3d 91 (Oct. 11,

2017) ........................................................... 466a

APPENDIX E:

U.S. Army Corps of Engineers,

Memorandum

for

Record

Consideration of Issues Remanded (Aug.

31, 2018) ..................................................... 500a

TABLE OF APPENDICES

(continued)

Page

APPENDIX F:

U.S. Army Corps of Engineers, Review

and Analysis of Tribes’ Submissions

(Aug. 31, 2018) (Redacted) ........................ 503a

APPENDIX G:

Memorandum Opinion of the U.S.

District Court for the District of

Columbia Granting Summary Judgment

in Favor of Plaintiffs, 440 F. Supp. 3d 1

(Mar. 25, 2020) ........................................... 776a

APPENDIX H:

Memorandum Opinion of the U.S.

District Court for the District of

Columbia Ordering Vacatur, 471 F.

Supp. 3d 71 (July 6, 2020) ......................... 826a

APPENDIX I:

Per Curiam Order of the U.S. Court of

Appeals for the District of Columbia

Circuit Granting in Part and Denying in

Part Defendants’ Motions for a Stay

Pending Appeal (Aug. 5, 2020) .................. 855a

APPENDIX J:

Memorandum Opinion of the U.S.

District Court for the District of

Columbia Denying Plaintiffs’ Motion for

Clarification

and

Permanent

Injunction, -- F. Supp. 3d -- (May 21,

2021) ........................................................... 858a

TABLE OF APPENDICES

(continued)

Page

APPENDIX K:

Order of the U.S. Court of Appeals for

the District of Columbia Circuit Denying

Rehearing En Banc (Apr. 23, 2021) .......... 895a

APPENDIX L:

Statutory Provisions and Regulations

Involved ...................................................... 897a

5 U.S.C. § 702 ....................................... 897a

5 U.S.C. § 706 ....................................... 898a

30 U.S.C. § 185 (a), (b), (f), (h) ............. 899a

42 U.S.C. § 4332(2)(C).......................... 901a

33 C.F.R. pt. 325, App. B (2019) .......... 903a

40 C.F.R. § 1501.4 (2019) ..................... 908a

40 C.F.R. § 1508.27 (2019) ................... 910a

VOLUME III (SEALED)

APPENDIX M:

U.S. Army Corps of Engineers, Analysis

of the Issues Remanded (Aug. 31, 2018) ... 913a

xii

TABLE OF AUTHORITIES

Page(s)

Cases

Allied-Signal, Inc. v. NRC,

988 F.2d 146 (D.C. Cir. 1993) .............................. 28

Am. Bankers Ass’n v. NCUA,

934 F.3d 649 (D.C. Cir. 2019) .............................. 27

Black Warrior Riverkeeper, Inc. v. U.S.

Army Corps of Eng’rs,

781 F.3d 1271 (11th Cir. 2015) ................ 27, 28, 30

Cal. Cmtys. Against Toxics v. EPA,

688 F.3d 989 (9th Cir. 2012) ................................ 30

Cent. & S.W. Servs., Inc. v. EPA,

220 F.3d 683 (5th Cir. 2000) .......................... 28, 30

Cent. Me. Power Co. v. FERC,

252 F.3d 34 (1st Cir. 2001) ............................ 28, 30

Coliseum Square Ass’n, Inc. v. Jackson,

465 F.3d 215 (5th Cir. 2006) ................................ 26

Cook Inletkeeper v. EPA,

400 F. App’x 239 (9th Cir. 2010) ......................... 31

DOT v. Pub. Citizen,

541 U.S. 752 (2004) .................................. 13, 18, 25

Envtl. Def. Fund v. FERC,

2 F.4th 953 (D.C. Cir. 2021) ................................ 33

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Gee v. Boyd,

471 U.S. 1058 (1985) ...................................... 17, 18

Highway J Citizens Grp. v. Mineta,

349 F.3d 938 (7th Cir. 2003) ................................ 26

Hillsdale Envtl. Loss Prevention, Inc. v.

U.S. Army Corps of Eng’rs,

702 F.3d 1156 (10th Cir. 2012) ............................ 26

Idaho ex rel. Idaho Pub. Utils. Comm’n

v. ICC,

35 F.3d 585 (D.C. Cir. 1994) ................................ 19

Ind. Forest All., Inc. v. U.S. Forest Serv.,

325 F.3d 851 (7th Cir. 2003) ................................ 26

Int’l Union, United Mine Workers of Am.

v. MSHA,

920 F.2d 960 (D.C. Cir. 1990) .............................. 28

Karst Envtl. Educ. & Prot., Inc. v. EPA,

475 F.3d 1291 (D.C. Cir. 2007) ............................ 20

Kasten v. Saint-Gobain Performance

Plastics Corp.,

563 U.S. 1 (2011) .................................................. 21

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .......................................... 21

Kleppe v. Sierra Club,

427 U.S. 390 (1976) ........................................ 18, 23

xiv

TABLE OF AUTHORITIES

(continued)

Page(s)

Marsh v. Or. Nat. Res. Council,

490 U.S. 360 (1989) .......................... i, 2, 15, 16, 18,

19, 20, 21, 24

McGuinness v. U.S. Forest Serv.,

741 F. App’x 915 (4th Cir. 2018) ......................... 25

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ................................................ 5

Morningside Renewal Council, Inc. v.

U.S. Atomic Energy Comm’n,

417 U.S. 951 (1974) .............................................. 18

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ................................................ 20

Nat’l Archives & Records Admin. v.

Favish,

541 U.S. 157 (2004) .............................................. 32

Nat’l Org. of Veterans’ Advocs., Inc. v.

Sec’y of Veterans Affs.,

260 F.3d 1365 (Fed. Cir. 2001) ............................ 28

Nat’l Parks Conservation Ass’n v.

Semonite,

916 F.3d 1075 (D.C. Cir. 2019) ................ 11, 20, 21

New York v. NRC,

681 F.3d 471 (D.C. Cir. 2012) ............................ 4, 7

TABLE OF AUTHORITIES

(continued)

Page(s)

North Carolina v. FAA,

957 F.2d 1125 (4th Cir. 1992) .............................. 26

NRDC v. EPA,

808 F.3d 556 (2d Cir. 2015) ................................. 28

Nucleus of Chi. Homeowners Ass’n v.

Lynn,

524 F.2d 225 (7th Cir. 1975) ................................ 21

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................ 30

Pollinator Stewardship Council v. EPA,

806 F.3d 520 (9th Cir. 2015) ................................ 30

Providence Rd. Cmty. Ass’n v. EPA,

683 F.2d 80 (4th Cir. 1982) ............................ 18, 21

Puntenney v. Iowa Utils. Bd.,

928 N.W.2d 829 (Iowa 2019)................................ 34

Roanoke River Basin Ass’n v. Hudson,

940 F.2d 58 (4th Cir. 1991) .................................. 27

Robertson v. Methow Valley Citizens

Council,

490 U.S. 332 (1989) .............................................. 19

Save Our Cumberland Mountains v.

Kempthorne,

453 F.3d 334 (6th Cir. 2006) ............................... 26

xvi

TABLE OF AUTHORITIES

(continued)

Page(s)

Save Our Ten Acres v. Kreger,

472 F.2d 463 (5th Cir. 1973) ................................ 18

Sierra Club v. Peterson,

717 F.2d 1409 (D.C. Cir. 1983) ...... 2, 16, 17, 18, 19

Sierra Club v. U.S. Forest Serv.,

828 F.3d 402 (6th Cir. 2016) ................................ 26

Sierra Club v. Van Antwerp,

661 F.3d 1147 (D.C. Cir. 2011) ............................ 19

Soc’y Hill Towers Owners’ Ass’n v.

Rendell,

210 F.3d 168 (3d Cir. 2000) ................................. 25

Texas Ass’n of Mfrs. v. Consumer Prods.

Safety Comm’n,

989 F.3d 368 (5th Cir. 2021) ................................ 29

TOMAC v. Norton,

433 F.3d 852 (D.C. Cir. 2006) .............................. 19

Town of Marshfield v. FAA,

552 F.3d 1 (1st Cir. 2008) .................................... 25

U.S. Postal Serv. v. Postal Regulatory

Comm’n,

963 F.3d 137 (D.C. Cir. 2020) .............................. 24

U.S. Steel Corp. v. EPA,

649 F.2d 572 (8th Cir. 1981) .......................... 28, 31

xvii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Chem. Found. Inc.,

272 U.S. 1 (1926) .................................................. 32

United States v. Wells,

519 U.S. 482 (1997) .............................................. 25

W. Oil & Gas Ass’n v. EPA,

633 F.2d 803 (9th Cir. 1980) ................................ 31

WildEarth Guardians v. Conner,

920 F.3d 1245 (10th Cir. 2019) ............................ 26

Williston Basin Interstate Pipeline Co. v.

FERC,

519 F.3d 497 (D.C. Cir. 2008) .............................. 29

Wood v. Burwell,

837 F.3d 969 (9th Cir. 2016) ................................ 28

Statutes

5 U.S.C. § 702 ........................................................ 1, 27

5 U.S.C. § 706 .............................................................. 1

5 U.S.C. § 706(2) ........................................................ 27

5 U.S.C. § 706(2)(A) ................................................... 20

28 U.S.C. § 1254(1) ...................................................... 1

30 U.S.C. § 185 ............................................................ 5

xviii

TABLE OF AUTHORITIES

(continued)

Page(s)

30 U.S.C. § 185(a) ........................................................ 1

30 U.S.C. § 185(b) ........................................................ 1

30 U.S.C. § 185(f)......................................................... 1

30 U.S.C. § 185(h)........................................................ 1

42 U.S.C. § 4332(2)(C) .................................... i, 1, 2, 24

Regulations

33 C.F.R. pt. 325, App. B(7) (2019) ............................. 1

33 C.F.R. pt. 325, App. B(7)(a) (2019) ........................ 4

40 C.F.R. § 1501.4 (2019) ............................................ 1

40 C.F.R. § 1501.4(b) (2019) ........................................ 4

40 C.F.R. § 1501.4(c)-(d) (2019)................................... 5

40 C.F.R. § 1501.4(e) (2019) ........................................ 5

40 C.F.R. § 1508.27 (2019) .......................... 1, 4, 23, 24

40 C.F.R. § 1508.27(b)(4) (2019) ......................... 17, 23

35 Fed. Reg. 7390 (May 12, 1970) ............................. 25

43 Fed. Reg. 55,978 (Nov. 29, 1978) ................... 23, 25

xix

TABLE OF AUTHORITIES

(continued)

Page(s)

Update to the Regulations Implementing

the Procedural Provisions of the

National Environmental Policy Act,

85 Fed. Reg. 43,304 (July 16, 2020) ...................... 4

Other Authorities

Exec. Office of the President, CEQ,

Environmental Impact Statement

Timelines (June 12, 2020),

https://ceq.doe.gov/docs nepapractice/CEQ_EIS_Timeline_Report_

2020-6-12.pdf .......................................................... 5

Fact Sheet: List of Agency Actions for

Review (Jan. 20, 2021),

https://www.whitehouse.gov/briefing

-room/statements-releases/2021/01/

20/fact-sheet-list-of-agency-actionsfor-review ............................................................... 4

K. Clay et al., External Costs of

Transporting Petroleum Products:

Evidence from Shipments of Crude

Oil from North Dakota by Pipelines

and Rail, 40 Energy J. 55 (2019)......................... 35

John G. Roberts, Jr., What Makes the

D.C. Circuit Different? A Historical

View, 92 Va. L. Rev. 375 (2006) ........................... 33

Antonin Scalia & Bryan A. Garner,

Reading Law § 40 (2012) ..................................... 25

TABLE OF AUTHORITIES

(continued)

Page(s)

Strata, Pipelines, Rail & Trucks:

Economic, Environmental, and

Safety Impacts of Transporting Oil

and Gas in the U.S. 6 (2017) ............................... 34

U.S. Army Corps of Engineers, Omaha

District Website, Dakota Access

Pipeline, www.nwo.usace.army.mil

/Missions/Dam-and-Lake-Projects

/Oil-and-Gas-Development/DakotaAccess-Pipeline ..................................................... 14

PETITION FOR A WRIT OF CERTIORARI

Petitioner Dakota Access, LLC respectfully requests a writ of certiorari to review the judgment of

the U.S. Court of Appeals for the District of Columbia

Circuit.

OPINIONS BELOW

The panel opinion (App. 1a-40a) is reported at 985

F.3d 1032. Pertinent district court opinions (App.

359a-499a, 776a-854a) are reported at 255 F. Supp. 3d

101, 282 F. Supp. 3d 91, 440 F. Supp. 3d 1, and 471 F.

Supp. 3d 71, respectively. All other pertinent opinions, orders, and administrative decisions (App. 41a358a, 500a-775a, 855a-96a, 913a-1160a) are unreported.

JURISDICTION

The D.C. Circuit entered judgment on January 26,

2021. Petitioner’s timely petition for rehearing was

denied on April 23, 2021. This Court’s March 19, 2020

and July 19, 2021 orders extend the filing deadline for

this petition to 150 days from that order (September

20, 2021). This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED

Pertinent provisions of the Administrative Procedures Act, 5 U.S.C. §§ 702, 706; the Mineral Leasing

Act, 30 U.S.C. § 185(a), (b), (f), (h); the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C);

and the Council on Environmental Quality’s National

Environmental Policy Act Implementing Regulations,

33 C.F.R. pt. 325, App. B(7) (2019); 40 C.F.R.

§§ 1501.4, 1508.27 (2019), are set forth in the Appendix at 897a-912a.

STATEMENT

The National Environmental Policy Act (“NEPA”),

requires federal agencies to evaluate the environmental effects of “major Federal actions” that will “significantly” impact the environment.

42 U.S.C.

§ 4332(2)(C). If the expected impact is significant, the

agency must prepare a “detailed” environmental impact statement (“EIS”), id., which often involves a

years-long process that can delay important infrastructure projects if even a small part of the project

requires federal authorization.

Congress tasked agencies—not the courts—with

deciding which environmental impacts are “significant,” requiring an EIS. Thirty years ago, this Court

rejected several circuits’ efforts to seize control of that

decision. Rather than requiring agencies to “convinc[e]” the court “that the impact was insignificant,”

as the D.C. Circuit required at the time, Sierra Club

v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983), this

Court directed courts to defer to agency expertise

“even if … a court might find contrary views more persuasive,” Marsh v. Or. Nat. Res. Council, 490 U.S. 360,

378 (1989).

Decades later, the D.C. Circuit has charted a circuitous return to the “convincing case” standard

Marsh rejected. The panel held that NEPA requires

an EIS whenever environmental impacts are “highly

controversial,” and that this, in turn, requires the

agency to “convinc[e] the court” that it has “resolved

serious objections to its analysis.” App. 15a-16a. Both

premises conflict with decisions from multiple circuits. And their net effect—expressly substituting the

court’s judgment for the agency’s—turns Marsh on its

head, reviving the long-settled circuit split it resolved.

The context of that holding deepens the need for

this Court’s review. The panel held that the U.S.

Army Corps of Engineers (“Corps”) violated NEPA

when it issued an easement—based on hundreds of

pages of environmental analysis prepared under two

consecutive administrations—to allow the Dakota Access Pipeline (“DAPL”) to pass under a narrow strip of

federal land at Lake Oahe in North Dakota. App. 18a29a. Following the Corps’ issuance of an environmental assessment and grant of the easement, DAPL’s

construction was completed in March 2017, App.

377a, and it has subsequently safely transported

nearly 1 billion barrels of crude oil cross country without a single spill on its mainline, Dist. Ct. Dkt. Entry

(“D.E.”) 520-3 ¶ 24; D.E. 543-2 ¶ 20. Despite this

safety record, the panel was not convinced that the

pipeline’s safety features and construction method

made the risk of an impactful spill too remote to warrant an EIS.

Compounding the problem, the panel held that

this purported error warranted vacating the easement. The removal of the easement potentially leaves

the pipeline vulnerable to a shutdown. The panel refused to consider (i) the likelihood that the Corps

would reinstate the easement on remand; (ii) the

multi-billion-dollar, thousands-of-jobs economic impact to North Dakota and neighboring states resulting

from a crippling of North Dakota oil production; or

(iii) the environmental impact of replacing even a

fraction of DAPL’s carrying capacity with rail

transport. App. 30a-37a. The result is, in effect, a per

se rule that even curable procedural errors under

NEPA always warrant vacatur, disruptive consequences be damned. This creates a further circuit

split over the remedy for NEPA violations. The Court

should grant review to resolve these conflicts and ensure DAPL’s continued operation.

1. Agencies evaluate the significance of potential

environmental impacts by preparing an environmental assessment (“EA”), 40 C.F.R. § 1501.4(b) (2019): a

preliminary analysis that “normally should not exceed

15 pages,” 33 C.F.R. pt. 325, App. B(7)(a) (2019). Under the Council on Environmental Quality (“CEQ”)

regulations applied here, an agency must assess the

context of the proposed action plus ten intensity factors, including the impact on “public health or safety”

or endangered species, and “[t]he degree to which the

effects” are “likely to be highly controversial.” 40

C.F.R. § 1508.27 (2019). 1 The agency must balance

“the consequences of the harm” with “the likelihood of

its occurrence.” New York v. NRC, 681 F.3d 471, 482

(D.C. Cir. 2012).

In July 2020, the CEQ issued a final rule that eliminated this

list of factors for new projects. Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304, 43,352 (July 16, 2020). Four

challenges to that rule are currently pending in federal court, but

each is stayed while the CEQ reconsiders the rule. See Stipulation & Consent Order Staying the Proceeding, Envtl. Justice

Health All. for Chem. Policy Reform v. CEQ, No. 1:20-cv-6143

(S.D.N.Y. Feb. 16, 2021) (ECF No. 65) (noting stays in three

pending actions and granting stay in fourth); see also Notice of

Appeal, Wild Va. v. CEQ, No. 3:20-cv-45 (W.D. Va. July 30, 2021)

(noticing appeal from order dismissing fifth action); Fact Sheet:

List of Agency Actions for Review, WhiteHouse.gov (Jan. 20,

2021),

https://www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review

(noting Biden Administration review of 2020 CEQ rule).

If the EA shows that a full EIS is unnecessary, the

agency prepares a finding of no significant impact

(“FONSI”). 40 C.F.R. § 1501.4(e) (2019). Otherwise,

the agency completes an EIS, id. § 1501.4(c)-(d)—an

“onerous” process, Monsanto Co. v. Geertson Seed

Farms, 561 U.S. 139, 159 (2010), that takes 4.5 years

on average.2

2. This case is about environmental analysis of a

1.7-mile segment of a 1,172-mile pipeline. For more

than four years, DAPL has annually transported 200

million barrels of crude oil from the Bakken oil fields

in North Dakota, through South Dakota and Iowa, to

the Patoka oil terminal in Illinois.

That sounds like a lot of oil because it is. DAPL

brings to market around 4 percent of the country’s

daily oil supply and 40% of the oil produced in North

Dakota, which produces more oil than any other state

except Texas. D.E. 520-4 ¶¶ 4, 16. The economic benefit is astounding: In North Dakota alone, DAPL generates as much as $2.5 billion in annual tax revenue

and has helped create upwards of 24,000 jobs. Ct.

App. Appendix (“A”) 702; D.E. 596-1 ¶ 5(d)(iii), (viii).

Three Native American tribes—the Mandan, Hidatsa,

and Arikara Nations—rely on DAPL to transport 60

percent of their oil production, accounting for nearly

half of their annual budget. D.E. 593-1 ¶¶ 6, 9.

Plaintiffs—four other Native American tribes—

challenged the Corps’ decision under the Mineral

Leasing Act, 30 U.S.C. § 185, to grant an easement allowing DAPL to cross two narrow strips of federally

owned lands abutting Lake Oahe in North Dakota.

Exec. Office of the President, CEQ, Environmental Impact

Statement Timelines, at 1 (June 12, 2020), https://ceq.doe.gov/

docs/nepa-practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf.

The Lake Oahe segment stretches 1.73 miles between

two valves, each equipped with built-in, state-of-theart pressure sensors linked to a system capable of detecting even a pinhole-sized leak well before it could

cause any environmental harm. D.E. 520-3 ¶¶ 5, 6, 9;

D.E. 543-2 ¶ 23.

The drilling method (horizontal directional drilling) used at Lake Oahe—illustrated below—“‘virtually eliminat[es] the ability of a spill to interact with

the surface water.’” A1830 (alteration in original).

Leaked oil would follow the underground path of the

pipeline to land on either side of the lake, rather than

rise 92 feet to the lakebed through dense clay and

other sediments. D.E. 520-1 ¶ 15; D.E. 520-3 ¶ 41;

A1830. Indeed, horizontal directional drilling is so

safe that federal data show only a single, 1.7-barrel

leak reported on any crude oil pipeline installed using

this method between 2010 and 2018. D.E. 520-1 ¶ 13;

D.E. 543-2 ¶ 20; A1836.

D.E. 520-1 ¶ 9 fig. 1.

3. The Corps’ initial environmental review under the Obama administration—culminating in an EA

and FONSI in July 2016—was extensive. At 163

pages, plus 700 pages of appendices, the EA alone far

exceeded the contemplated 15 pages. App. 41a-358a.

To satisfy NEPA’s requirements for issuing the

Lake Oahe easement and a permit to construct the

Lake Oahe crossing, the EA comprehensively addressed efforts to preserve historical and cultural resources and other issues related to the environment

and environmental justice—including cumulative impacts and twenty-five distinct aspects of the environment, App. 86a-252a. The Corps also analyzed six alternatives to the Lake Oahe crossing, including no

crossing, App. 47a-86a, and included an entire section

detailing the Corps’ substantial effort—far “exceed[ing]” its legal obligations—to consult with local

Native American tribes, including Plaintiffs. A211.

The Corps carefully tracked the tribes’ concerns—

ranging from the risk of a spill, potential damage to

Lake Oahe, and environmental justice—to ensure the

EA addressed each concern. A611-14, A621-34; see

also D.E. 209-8, at 146-61; D.E. 482-10, at 584-614.

The EA examined the likelihood and consequence

of potential spills ranging from fewer than four barrels to thousands. App. 141a-43a. The analysis included project-specific models of a hypothetical worstcase spill at Lake Oahe calculated in accordance with

Pipeline and Hazardous Materials Safety Administration (“PHMSA”) regulations. App. 240a-42a. No scenario suggested material risk of a significant environmental impact. Although hypothesized large spills

into Lake Oahe could have serious consequences, the

Corps found their likelihood “extremely low” given

“the engineering design, proposed installation methodology, quality of material selected, operations

measures and response plans.” App. 230a-31a. Based

on this judicially approved “high consequence, but low

likelihood” mode of reasoning, see New York, 681 F.3d

at 478-79, the Corps determined through a FONSI

that an EIS was unnecessary and issued a construction permit.

4. Plaintiffs responded immediately—before the

Corps could even issue the easement that became the

focus of this lawsuit. Within days of the permit, they

sought an injunction to halt construction. They also

mobilized fierce opposition to the pipeline, including

highly politicized protests and lobbying of political appointees. App. 782a; A164, A279-80.

Plaintiffs’ legal efforts went nowhere. They did

“not claim that a potential future rupture in the pipeline could damage their reserved land or water.”

A213. Instead, invoking the National Historic Preservation Act, they asserted that construction “might

damage or destroy sites of great cultural or historical

significance.” Id. Both the district court and the D.C.

Circuit refused to enjoin the construction. A196,

A221; D.C. Cir. No. 16-5259, Doc. 1640062 (Oct. 11,

2016). Plaintiffs later sought to enjoin construction

under the Religious Freedom Restoration Act—again

without success. App. 360a; D.C. Cir. No. 17-5043,

Doc. 1666652 (Mar. 18, 2017). Plaintiffs never sought

preliminary injunctive relief under NEPA.

Plaintiffs’ lobbying efforts fared significantly better: The Obama administration abruptly reversed

course in September 2016, announcing it would reexamine the Corps’ NEPA obligations. App. 782a. In

October, the Corps reaffirmed it was simply reviewing

its “decision making to confirm compliance,” A231,

and in December, an Army political appointee agreed

that “the Corps’ prior reviews and actions have comported with legal requirements,” App. 375a. Nonetheless, the appointee used her position of authority to

keep the Corps from issuing the easement. App. 374a75a. Then, after the presidential election and in the

administration’s final days, the Army (without agreement from the Corps itself) bowed to Plaintiffs’ pressure and announced plans to prepare an EIS.

App. 782a.

Once President Trump took office, however, the

Corps completed its review of voluminous additional

materials submitted even after it had completed the

EA and FONSI and after it issued the construction

permit. It found, with detailed supporting analysis,

that none “would require supplemental NEPA documentation.” A273-75. On February 8, 2017, the Corps

announced that it would deliver the easement—restoring its original, expert judgment. App. 12a, 376a.

Pipeline operations began on June 1, 2017. App. 377a.

5. Having failed to halt the pipeline’s construction, Plaintiffs’ shifted their focus to arguing that issuing the easement without preparing an EIS violated

NEPA.

In June 2017, the district court granted the Corps

and Dakota Access partial summary judgment on

Plaintiffs’ NEPA claim. App. 360a-61a. The court

held that the Corps had “substantially complied with

NEPA,” App. 360a, and it affirmed the Corps’ “top-line

conclusion that the risk of a spill is low,” App. 392a.

The court also agreed that the Corps had complied

with its tribal-consultation obligations. App. 453a64a.

The court remanded to the Corps with instructions to address only three discrete issues that, in the

court’s view, the EA did “not adequately consider”:

(1) whether the project’s effects were likely to be

“highly controversial”; (2) the impact of a hypothetical

oil spill on Plaintiffs’ fishing and hunting rights; and

(3) the environmental-justice effects of the project.

App. 360a, 498a-99a. The court limited the first issue

to the Corps’ engagement with criticisms Plaintiffs

submitted after the EA was published. App. 396a97a. “Aside from the[se] discrete issues,” “the Court

conclude[d] that the Corps complied with its statutory

responsibilities.” App. 464a.

Given the “significant likelihood of” the Corps “being able to substantiate its prior conclusions” on remand, including with respect to the “highly controversial” issue, the district court refused to vacate the

easement and allowed DAPL to continue operating.

App. 477a, 485a-86a, 498a-99a.

6. As with the original EA, the Corps’ remand

process went far beyond what NEPA requires. For example, the Corps asked Dakota Access to prepare extensive additional spill modeling taking “into account

the pipeline as constructed,” A445-47, and further addressing the impact of a hypothetical worst-case spill

calculated using the PHMSA-approved method. The

modeling confirmed that even an extremely large spill

would have no impact on Plaintiffs’ water intakes, and

only “temporary” and “limited” effects on Plaintiffs’

use of the Lake. E.g., App. 501a, 647a-48a.

The Corps acknowledged there “may be other

methods for predicting oil spill effects” beyond the extensive models the agency employed, but it concluded

that it was “not likely that employing further methods

will result in substantively different views or information that is more comprehensive.” App. 1160a.

In August 31, 2018, the Corps completed its 280page remand analysis, which reaffirmed that an EIS

was unnecessary. App. 500a-775a, 913a-1160a. With

respect to the “highly controversial” factor, the remand was the Corps’ first opportunity to address all

339 of Plaintiffs’ post-EA criticisms. It addressed each

in great detail, App. 913a-1160a, plus all three issues

the district court identified, App. 503a-775a. It ultimately concluded that “the effects of the federal action

here are not ‘likely to be highly controversial.’” App.

502a.

7. Plaintiffs again challenged the Corps’ decision

to forego an EIS, arguing inter alia that DAPL’s environmental impact remained “highly controversial.”

App. 784a-85a. The district court agreed, and in

March 2020, it ordered the Corps to prepare an EIS.

App. 824a.

The court based its analysis on “recent” and “significant guidance” from National Parks Conservation

Association v. Semonite, 916 F.3d 1075 (D.C. Cir.

2019)—issued six months after the Corps completed

the remand. App. 777a, 793a-94a. In Semonite, the

D.C. Circuit held that an agency action’s environmental impact is “highly controversial” if it generates

“consistent and strenuous opposition” from entities

“with subject-matter expertise,” and the agency does

not “succee[d]” in “resolv[ing] the controversy.” 916

F.3d at 1085-86 (“The question is not whether the

[agency] attempted to resolve the controversy, but

whether it succeeded.”).

Applying Semonite, the district court found the

pipeline’s impact “‘highly controversial’” because, in

the court’s view, the Corps had “not ‘succeeded’” in

“‘resolving’” four of Plaintiffs’ numerous criticisms,

App. 815a:

(1) the “efficacy” of “DAPL’s leak-detection

system” in detecting slow leaks, App. 797a801a;

(2) the safety record of DAPL’s operator,

Sunoco, on other pipelines, including while

under prior management, App. 801a-03a;

(3) the effect of winter weather on spill-response efforts, App. 803a-06a; and

(4) the Corps’ assumptions, in calculating the

worst-case discharge at Lake Oahe, for how

quickly Dakota Access could detect a full-bore

rupture of the pipeline and shut it down, App.

811a, and the risk of “human or machine error,” App. 813a.

Rather than remand to allow the Corps to apply Semonite and “resolv[e]” these outstanding criticisms,

the court took it upon itself to conclude that the pipeline’s impact were “highly controversial” and that

this, standing alone, mandated an EIS. App. 816a17a.

The court sought supplemental briefing on

whether to vacate the easement pending remand. The

Corps, Dakota Access, fifteen states, and numerous

industry members submitted briefs and expert declarations urging the court to preserve the easement.

These filings made clear that a DAPL shutdown—the

result Plaintiffs desired from vacatur—would have

permanent, catastrophic consequences for the industry, the environment, and the country, including billions of dollars in lost tax revenues, tens of thousands

of lost jobs, and increased spill risks, pollution, and

fatalities caused by the shift from pipeline to rail

transport. E.g., D.E. 504; D.E. 507; D.E. 510;

D.E. 514.

The district court nevertheless vacated the easement and also ordered Dakota Access to “shut down

the pipeline and empty it of oil by August 5, 2020.”

A138-39. The court recognized “the serious effects

that a DAPL shutdown could have for many states,

companies, and workers,” but it reasoned that withholding vacatur on that basis would “subvert

[NEPA’s] structure” and deprive the statute of its

“bite.” App. 845a, 847a. Though the order enjoined

continued pipeline operation, the court (like Plaintiffs) did not address the requirements for injunctive

relief.

8. On August 5, 2020, the D.C. Circuit stayed the

district court’s shutdown order pending appeal. App.

856a. Following full briefing, the court reversed the

shutdown order because the district court had failed

to make any of the findings necessary to support an

injunction. App. 37a-40a. It otherwise affirmed. App.

40a.

Judge Tatel authored the opinion, expanding on

Semonite, which he also wrote. Rather than analyze

whether the Corps’ “decision not to prepare an EIS”

was “arbitrary and capricious”—the “only” ground on

which that decision “can be set aside,” DOT v. Pub.

Citizen, 541 U.S. 752, 763 (2004)—the panel held that

the “highly controversial” factor of NEPA required the

court “to delve into the details of [Plaintiffs’] criticisms,” and obligated the Corps to “convinc[e] the

court” that it has “resolved serious objections to its

analysis.” App. 15a-16a. Declaring itself unconvinced

by the Corps’ analysis on the four topics the district

court identified, App. 18a-28a, the panel found each

“highly controversial,” App. 28a, and “ordered the

Corps to prepare an EIS,” App. 30a-31a.

The panel also upheld the order vacating the easement. App. 31a-37a. The panel agreed with the district court that withholding vacatur pending remand

based on “economic consequences” or the Corps’ ability to “‘substantiate its easement on remand’” would

“subvert NEPA’s purpose” by incentivizing agencies to

“build first” and comply later. App. 33a-35a.

9. DAPL has continued to operate while the Corps

prepares an EIS, a process the agency began in September 2020 and expects to complete by

September 2022. U.S. Army Corps of Engineers,

Omaha District Website, Dakota Access Pipeline,

www.nwo.usace.army.mil/Missions/Dam-and-LakeProjects/Oil-and-Gas-Development/Dakota-AccessPipeline. With the easement vacated, the Corps

claims it has authority to stop the flow of oil at any

time. See D.E. 610, at 3-4; D.E. 612, at 3. But rather

than exercise that authority, the Corps—under the

third administration since this case began—has “actively tolerate[d] [the pipeline]’s continued operation.”

D.E. 607, at 29. In May 2021, the Corps advised the

court that nothing it had learned in the first eight

months of the EIS process suggested that Plaintiffs

faced imminent risk of harm. D.E. 601, at 2.

Meanwhile, Plaintiffs returned to the district

court where they failed, again, to secure an injunction

against DAPL’s operation. The district court held that

Plaintiffs had failed “to demonstrate a likelihood of irreparable injury.” App. 891a. The court found that

“historical data” concerning similarly constructed

pipelines and DAPL’s own safety record, “when combined with the numerous safety measures in place at

Lake Oahe, suggest that the chance of a spill at the

crossing is especially unlikely.” App. 876a-77a (citation omitted). Plaintiffs declined to appeal that ruling, and the pipeline remains in operation subject to

the threat that the Corps, or a political appointee to

whom it must answer, will cease “tolerat[ing]” it. D.E.

607, at 29.

REASONS FOR GRANTING THE PETITION

The panel reviewed the Corps’ decision not to prepare an EIS under a heightened standard of review

that requires an agency to “convic[e] the court” of its

responses to “serious objections” to its environmental

analysis. App. 15a-16a. That standard shifts power

from agencies to the courts, contradicting three decades of this Court’s NEPA jurisprudence and reviving

a long-settled circuit split that this Court resolved in

Marsh v. Oregon Natural Resources Council, 490 U.S.

360 (1989). The panel’s justification for that standard—based on the requirement that agencies weigh

the likelihood that their actions will be “highly controversial”—only deepens the split, as at least seven circuits approach that factor differently than the panel

below.

Compounding the error, the D.C. Circuit adopted

a categorical approach as to the remedy. If the agency

fails to convince a court that an EIS is unnecessary,

the D.C. Circuit requires vacating the underlying action while the agency prepares one, regardless of the

disruptive economic and environmental consequences

of vacatur and the likelihood that the agency will ultimately reapprove the identical action after preparation of the EIS. As with the standard of review, this

approach to remedies is inconsistent with the APA

and the decisions of several other circuits.

Together, these errors establish the D.C. Circuit

as the preferred—and almost always available—forum for NEPA challenges. Important projects requiring federal authorization for any small aspect of con-

struction or operation—including critical infrastructure projects like DAPL—thus face the risk of being

shut down at any time unless the approving agency

delays the project for years in order to prepare an EIS.

That is emphatically not the scheme Congress envisioned in NEPA, and it will impede important federally authorized projects. The devastating economic

and environmental consequences of a potential shutdown of DAPL—including billions in tax revenues and

tens of thousands of jobs for North Dakota and neighboring states—also warrant this Court’s intervention.

To prevent these harms and bring the D.C. Circuit

in line with other circuits and this Court’s precedents,

the Court should grant certiorari.

THIS COURT SHOULD REVIEW THE D.C.

CIRCUIT’S HEIGHTENED “CONVINCE THE

COURT” STANDARD FOR REVIEWING AN

AGENCY’S DECISION TO FORGO AN

ENVIRONMENTAL IMPACT STATEMENT

Thirty years ago, in Marsh, this Court held that

agencies—not courts—are responsible for determining whether to prepare an EIS, and courts must “defer” to agencies’ “‘informed discretion’” even when

they “find contrary views more persuasive.” 490 U.S.

at 377-78. Those holdings resolved a recognized circuit split, rejecting the D.C. Circuit’s requirement

that agencies make a “convincing case” to the courts

that no EIS was required. Sierra Club v. Peterson, 717

F.2d 1409, 1413 (D.C. Cir. 1983).

The decision below revives the deprecated “convincing case” standard, requiring agencies to prepare

an EIS unless they “convinc[e] the court” they have

“resolved serious objections to [their environmental]

analysis.” App. 15a-16a. Otherwise, the panel held,

the environmental effects remain “highly controversial,” satisfying one of ten “intensity” factors that

“should be considered” in assessing whether a project

will have significant environmental effects. 40 C.F.R.

§ 1508.27(b)(4) (2019). And failing to satisfy the court

on that one factor, according to the panel, is “‘sufficient to require development of an EIS.’” App. 30a.

The panel’s renewed “convince the court” requirement turns Marsh on its head and reopens the circuit

split Marsh resolved by again shifting the agencies’

ultimate authority to the courts. The “highly controversial” factor provides no basis for this impermissible

end run around Marsh, and the panel’s approach to

that factor only deepens the circuit split. To protect

this Court’s longstanding precedent and restore clear

direction to the circuits, this Court should grant certiorari.

A. The D.C. Circuit’s Standard Flouts

This Court’s Longstanding NEPA

Jurisprudence And Revives A LongSettled Circuit Split

This Court already rejected the “convincing case”

requirement in its Marsh decision. Reviving that requirement—and the circuit split it engendered prior

to Marsh—cannot be squared with this Court’s NEPA

decisions.

1. Before Marsh, the D.C. Circuit applied a fourpart test in reviewing agency decisions to forgo an

EIS. One of those factors required agencies to “ma[ke]

a convincing case that the [environmental] impact” of

their actions “was insignificant.” Sierra Club, 717

F.2d at 1413.

As four Justices of this Court recognized, other

circuits applied “divergent standards.” Gee v. Boyd,

471 U.S. 1058, 1059 (1985) (White, J., joined by Brennan and Marshall, JJ., dissenting from denial of certiorari); see also Morningside Renewal Council, Inc. v.

U.S. Atomic Energy Comm’n, 417 U.S. 951, 954 (1974)

(Douglas, J., dissenting from denial of certiorari).

Four circuits applied the APA’s deferential “arbitrary

and capricious’” standard, Gee, 471 U.S. at 1059,

which left “the decision not to prepare an EIS” to “the

agency,” Providence Rd. Cmty. Ass’n v. EPA, 683 F.2d

80, 82 (4th Cir. 1982) (quoting Kleppe v. Sierra Club,

427 U.S. 390, 412 (1976)). Four circuits applied a

“more stringent” “‘reasonableness’ standard,” Gee, 471

U.S. at 1059-60, that instead charged “the courts[]”

with ensuring that “all relevant environmental effects

of the project be given appropriate consideration,”

Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th

Cir. 1973) (emphasis added). “This conflict [was] not

merely semantic or academic”—it implicated the degree of “deferen[ce]” owed to the agency. Gee, 471 U.S.

at 1060.

The D.C. Circuit’s “four-part test” stood apart.

Gee, 471 U.S. at 1059. Although the Circuit called its

test “arbitrary and capricious” review, its NEPA-specific “convincing case” requirement shifted ultimate

authority back to the courts. Sierra Club, 717 F.2d at

1413.

Marsh resolved the conflict, reaffirming the applicability of the deferential “arbitrary and capricious”

standard and rejecting the argument that “reviewing

court[s] must make [their] own determination of reasonableness.” 490 U.S. at 375. Under Marsh, “[a]n

agency’s decision not to prepare an EIS can be set

aside only upon a showing that it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” DOT v. Pub. Citizen, 541 U.S.

752, 763 (2004) (citing Marsh, 490 U.S. at 375-76). As

the Court explained in Robertson v. Methow Valley

Citizens Council—a companion case to Marsh decided

the same day—“NEPA itself does not mandate particular results, but simply prescribes the necessary process.” 490 U.S. 332, 350 (1989). Marsh made clear

that this maxim applied equally to the decision

“whether to prepare an EIS,” and it required the

courts to “defer to ‘the informed discretion of the responsible federal agenc[y].’” 490 U.S. at 374, 377. Rather than the agency “convincing” the court “that the

[environmental] impact was insignificant” (as the

D.C. Circuit had required, Sierra Club, 717 F.2d at

1413), Marsh gave the agency “discretion to rely on the

reasonable opinions of its own qualified experts even

if, as an original matter, a court might find contrary

views more persuasive.” 490 U.S. at 378 (emphases

added).

2. The decision below marks a troubling return

to the “convincing case” requirement.

Until recently, although the D.C. Circuit continued to “repeat[] the phrase ‘convincing case’” after

Marsh, in practice the circuit applied the “usual” “arbitrary [and] capricious” standard. Sierra Club v. Van

Antwerp, 661 F.3d 1147, 1153-54 (D.C. Cir. 2011).

The court thus generally upheld agency decisions to

forgo an EIS, e.g., TOMAC v. Norton, 433 F.3d 852,

861-64 (D.C. Cir. 2006), unless the agency failed to

even analyze an environmental impact, e.g., Idaho ex

rel. Idaho Pub. Utils. Comm’n v. ICC, 35 F.3d 585, 595

(D.C. Cir. 1994) (agency “‘share[d] the parties’ concern’” about environmental harm but “neither analyzed the potential harm nor weighed it against” the

“benefits”). The “convincing case” requirement was

rarely, if ever, dispositive.

In National Parks Conservation Association v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019), and the decision below, however, that court breathed new life into

the requirement by expanding the “highly controversial” factor. Semonite requires more from agencies

than “acknowledg[ing] and try[ing] to address” opposition from commenters “with subject-matter expertise.” Id. at 1085-86. “The question” is no longer

“whether the [agency] attempted to resolve the controversy, but whether it succeeded” to the court’s satisfaction. Id. “[S]ucceed[ing]” now means “convinc[ing]

the court”—“through the strength of its response”—

that any “serious objections” lack merit. App. 15a16a. Otherwise, the action is “highly controversial”

and requires an EIS. App. 15a-16a, 30a.

3. The panel’s standard cannot be squared with

this Court’s decisions. Requiring an agency to “convinc[e] the court” that it has “resolved serious objections to its analysis” is incompatible with the deferential APA-style review required for agency decisions to

forgo an EIS if the agency adequately “considered” the

objections. Marsh, 490 U.S. at 374-78.

“NEPA creates no private right of action,” Karst

Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291, 1295

(D.C. Cir. 2007), so review is possible only under the

APA’s “‘arbitrary and capricious’ standard,” Marsh,

490 U.S. at 375-76 (quoting 5 U.S.C. § 706(2)(A)). But

the panel never even mentioned that standard.

The APA bars a court from “substitut[ing] its judgment for that of the agency.” Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). Instead, courts must “defer” to

agencies’ “‘informed discretion.’” Marsh, 490 U.S. at

377. But deferring to an agency only to the extent its

views are “convinc[ing],” App. 16a, is no deference at

all. “If one has been persuaded … there is no room for

deferral—only for agreement.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 24 n.6

(2011) (Scalia, J., dissenting); see also Kisor v. Wilkie,

139 S. Ct. 2400, 2424 (2019) (Roberts, J., concurring

in part) (noting “difference between holding that a

court ought to be persuaded by an agency[]” and “holding that it should defer”).

Marsh was clear, therefore, that the agency need

not “persua[de]” the court. 490 U.S. at 378. Instead,

the “agency must have discretion to rely on the reasonable opinions of its own qualified experts even if …

a court might find contrary views more persuasive.”

Id. at 377-78 (emphasis added).

Indeed, persuading the court is precisely what the

old “convincing case” requirement demanded before

Marsh resolved the circuit split described in Gee. By

contrast, the circuits that applied ordinary “arbitrary

and capricious” review found it sufficient that the

agency “address[ed] each of the concerns raised during the comment period,” and “none of those issues

had escaped attention.” Providence, 683 F.2d at 82;

see also, e.g., Nucleus of Chi. Homeowners Ass’n v.

Lynn, 524 F.2d 225, 231 (7th Cir. 1975) (agency “consider[ed]” the relevant impact at length and “conclude[d] that the project will have no significant adverse environmental impact”). Requiring the Corps to

“resolve the controversy” rather than merely

“acknowledg[ing] and try[ing] to address” it, Semonite, 916 F.3d at 1085-86, reignites the circuit split.

Just two examples illustrate the problem. First is

the efficacy of the pipeline’s leak-detection system,

which Plaintiffs challenge based on a study of how certain leaks were detected on other pipelines. App. 18a.

The Corps dismissed that study as irrelevant because

it was based on older pipelines that had less effective

detection systems. A1990-91. The court was unconvinced because Plaintiffs claimed that modern systems fail at similar rates. App. 18a-19a. But Plaintiffs’ argument lacked any record support whatsoever.

And it was conclusively rebutted by PHMSA’s data (on

which the Corps relied), which confirms that, since

2010, no spill exceeding 5,000 barrels has escaped detection on any pipeline built in the last fifty years using the same leak-detection system as here.

D.E. 520-2 ¶ 13. The court entirely ignored, moreover, the Corps’ evidence and findings that any leak

would follow the bore-hole path rather than rise 92

feet, through the lakebed, and into the Lake. This

would facilitate prompt detection and minimize any

leak’s impact. A1830; App. 18a-21a.

The second example is the safety record of the

pipeline’s operator (Sunoco). The court expressly declined to accord the Corps’ analysis any deference

even though Plaintiffs provided no comparison of

Sunoco’s safety record to that of other operators under

the relevant metric—spills per mile of pipeline.

App. 21a-23a. Instead, the court drew its own conclusions based on data never put before the Corps. Id.

As a result, when the court concluded that Sunoco’s

spill rate was above average, it erroneously compared

Sunoco’s overall spills per mile to the industry’s rate

of significant spills per mile. Compare D.E. 543-2

¶¶ 7-8, with A1831-33. Under a correct apples-to-apples comparison, Sunoco “has consistently experienced fewer significant crude oil accidents per 1,000

miles than the industry average.” D.E. 593-4, ¶¶ 410.

As these examples make clear, the panel erred because a court’s “only role” in NEPA cases is “to insure

that the agency has taken a ‘hard look’ at environmental consequences.” Kleppe, 427 U.S. at 410 n.21. By

expressly “delv[ing] into the details of [Plaintiffs’] criticisms,” App. 16a, usurping the agency’s role, the

court contravened this Court’s precedent and reopened the circuit split.

B. The Panel’s Approach To The “Highly

Controversial” Factor Deepens The

Circuit Conflict

To try to get around Marsh, the panel relied on the

requirement that agencies “conside[r]” the “degree to

which [an action’s] effects” are “likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4) (2019). But this

requirement—already adopted well before Marsh, 43

Fed. Reg. 55,978, 56,006 (Nov. 29, 1978)—cannot

override the deferential standard set in Marsh. Instead, the panel’s approach to this “highly controversial” factor strengthens the need for this Court’s review because it puts the D.C. Circuit further at odds

with its sister circuits in two ways.

1. The panel first broke new ground by holding

that an agency must prepare an EIS whenever a court

determines that some aspect of a federal action’s potential environmental impact is highly controversial,

even when the agency determines that the supposed

controversy is insubstantial or immaterial.

The “highly controversial” factor is one of ten “intensity” factors that agencies “should … conside[r]”—

along with the action’s “context”—when determining

whether a federal action will “significantly” affect the

environment. 40 C.F.R. § 1508.27 (2019). By transforming this factor from one of many the agency considers into a dispositive factor that the court decides,

the D.C. Circuit fundamentally shifted to the courts

the responsibility that NEPA assigns to expert administrative agencies, undercutting NEPA’s basic design.

NEPA implements a “‘rule of reason,’” not a rigid

test. DOT, 541 U.S. at 767. It is up to “agencies”—

not courts—to “determine whether” to prepare an EIS

“based on the usefulness of any new potential information.” Id. Courts must “defer to ‘the informed discretion of the responsible federal agencies’” when they

decide whether to prepare an EIS, and agencies, in

turn, need only “‘consider[] … the relevant factors’”

and not commit “‘a clear error of judgment.’” Marsh,

490 U.S. at 377-78. Under the controlling APA standard, id. at 375, “‘review of agency decisions based on

multi-factor balancing tests’” is “‘quite limited,’” leaving no room for courts to “‘substitute the balance

[they] would strike for that the agency reached,’” U.S.

Postal Serv. v. Postal Regulatory Comm’n, 963 F.3d

137, 141 (D.C. Cir. 2020).

The D.C. Circuit discarded this “rule of reason,”

reasoning that a single intensity factor suffices to

“‘trigge[r] the need to produce an EIS.’” App. 6a. Instead of requiring agencies to “conside[r]” the relevant

factors, as the regulation and the APA prescribe, 40

C.F.R. § 1508.27 (2019); Marsh, 490 U.S. at 378, the

court’s test effectively gives a single factor dispositive

weight if a court finds it present, regardless of

whether the agency found it present. This divorces

NEPA review from the statutory standard—“significan[t]”

environmental

effects,

U.S.C.

§ 4332(2)(C)—by compelling an EIS even though the

agency found that the effects purportedly generating

“high controversy” are too unlikely to be “significant.”

Contravening Public Citizen, this formalistic standard risks compelling an EIS even where, as here, it

would “serve ‘no purpose’” because the effects to be

studied are astronomically improbable. 541 U.S. at

767.

Treating the “highly controversial” factor as dispositive also cannot be squared with the history of the

governing regulations. The CEQ’s original interim

NEPA regulations—promulgated in 1970—initially

did provide that actions with highly controversial effects always require an EIS. 35 Fed. Reg. 7390, 7391

(May 12, 1970) (“Proposed actions the environmental

impact of which is likely to be highly controversial

should be covered in all cases.”). But the CEQ downgraded this consideration in 1978 to one of many factors that “should be considered.” 43 Fed. Reg. at

56,005-06. This “significant change in language”

must be “presumed to entail a change in meaning.”

Antonin Scalia & Bryan A. Garner, Reading Law § 40

(2012). By eliminating the provision requiring an EIS

for all highly controversial impacts, the CEQ plainly

meant to eliminate any requirement giving that factor

dispositive weight. Cf. United States v. Wells, 519

U.S. 482, 493 (1997) (where Congress “deliberately

dropped the term ‘materiality’” from a criminal statute, the “most likely inference” is that Congress did

not “inten[d] materiality to be an element”).

At least six other circuits squarely reject the D.C.

Circuit’s approach. The First, Third, Fourth, and

Tenth Circuits have expressly recognized that “controversy” is “only one of the ten factors listed for determining if an EIS is necessary.” Soc’y Hill Towers

Owners’ Ass’n v. Rendell, 210 F.3d 168, 184 (3d Cir.

2000); McGuinness v. U.S. Forest Serv., 741 F. App’x

915, 927 (4th Cir. 2018) (same). “[C]ontroversy is not

decisive but is merely to be weighed in deciding what

documents to prepare.” Town of Marshfield v. FAA,

552 F.3d 1, 5 (1st Cir. 2008). Thus, even when “a project is controversial,” that “does not mean the Corps

must prepare an EIS.” Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156,

1181 (10th Cir. 2012). And the Fifth and Sixth Circuits have recognized more broadly that the “factors

listed in the [CEQ] regulation ‘do not appear to be categorical rules that determine by themselves whether

an impact is significant.’” Coliseum Square Ass’n, Inc.

v. Jackson, 465 F.3d 215, 233-34 (5th Cir. 2006); see

also Sierra Club v. U.S. Forest Serv., 828 F.3d 402,

411 (6th Cir. 2016) (“[T]he [agency] was not required

independently to evaluate these factors.”).

2. The D.C. Circuit’s standard for assessing

whether agency action is highly controversial exacerbates a separate circuit conflict.

Other circuits recognize that the highly controversial factor calls for the same limited “hard look” review

as in any case, lest the factor give critics a “‘heckler’s

veto’” over the EIS decision. Ind. Forest All., Inc. v.

U.S. Forest Serv., 325 F.3d 851, 857, 860-61 (7th Cir.

2003); see also Hillsdale, 702 F.3d at 1182 (“all NEPA

requires” is a “hard look”); North Carolina v. FAA, 957

F.2d 1125, 1134 (4th Cir. 1992) (similar); WildEarth

Guardians v. Conner, 920 F.3d 1245, 1257, 1263 (10th

Cir. 2019) (similar). Courts will not “‘substitute

[their] judgment … for the judgment of the agency.’”

Save Our Cumberland Mountains v. Kempthorne, 453

F.3d 334, 339 (6th Cir. 2006) (Sutton, J.). And the

“mere fact” of “disagreement” among “experts” “does

not render the [agency] out of compliance under [the

“‘highly controversial’”] factor.” Highway J Citizens

Grp. v. Mineta, 349 F.3d 938, 957 (7th Cir. 2003). This

is true even as to criticisms from “other agencies,” to

which the reviewing agency “need not defer … when

it disagrees.” Roanoke River Basin Ass’n v. Hudson,

940 F.2d 58, 64 (4th Cir. 1991).

The D.C. Circuit’s requirement that agencies rebut critics to the court’s satisfaction squarely conflicts

with these decisions and this Court’s repeated admonition that deferential APA review applies. This Court

should grant review to resolve these conflicts.

II. THE DECISION BELOW CONFLICTS WITH

OTHER CIRCUITS’ RULES FOR REMAND

WITHOUT VACATUR

The D.C. Circuit’s decision to affirm the district

court’s remedy—vacatur of DAPL’s easement pending

an EIS—independently warrants this Court’s review.

This Court has yet to address the critical, regularly recurring question of what standard governs decisions to grant or deny vacatur pending remand under the APA. That is reason enough to grant certiorari. And review is especially warranted in this case

because the D.C. Circuit split with several of its sister

circuits by adopting a rule that effectively compels vacatur when an agency commits procedural error.

1. The APA authorizes federal courts to “set

aside” unlawful agency action. 5 U.S.C. § 706(2). At

the same time, Congress specified that “[n]othing” in

the APA “affects” courts’ “power or duty” to “deny relief on any ... appropriate ... equitable ground.” Id.

§ 702. The statute thus expressly preserves courts’

“‘duty’ to ensure the propriety of the APA remedy.”

Am. Bankers Ass’n v. NCUA, 934 F.3d 649, 674 (D.C.

Cir. 2019).

Eight circuits have accordingly recognized that

“remand without vacatur is permitted under the

APA.” Black Warrior Riverkeeper, Inc. v. U.S. Army

Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015)

(citing cases from the First, Fifth, Ninth, D.C., and

Federal Circuits); see also NRDC v. EPA, 808 F.3d

556, 584 (2d Cir. 2015) (remanding without vacatur);

U.S. Steel Corp. v. EPA, 649 F.2d 572, 574 (8th Cir.

1981) (same).

The D.C. Circuit announced the predominant test

in Allied-Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir.

1993). It requires courts to consider: (1) “‘the seriousness of the order’s deficiencies,’” and (2) “‘the disruptive consequences’” of vacatur. Id. at 150-51. These

factors are “analogous” to those “considered in deciding whether to grant preliminary injunction,” Int’l

Union, United Mine Workers of Am. v. MSHA, 920

F.2d 960, 967 (D.C. Cir. 1990)—with the second factor

focused on the disruptive consequences of vacatur

(which Dakota Access proved, App. 845a) rather than

the harm from the challenged agency action (which, in

any event, Plaintiffs failed to prove here, App. 891a).

Just as courts consider likely success on the merits for

injunctions or stays, courts considering vacatur must

address the likelihood that the “interim change …

may itself be changed” by later agency action. Int’l

Union, 920 F.2d at 967.

Other circuits have converged around the AlliedSignal test. See, e.g., Cent. Me. Power Co. v. FERC,

252 F.3d 34, 48 (1st Cir. 2001); Cent. & S.W. Servs.,

Inc. v. EPA, 220 F.3d 683, 692 (5th Cir. 2000); Wood

v. Burwell, 837 F.3d 969, 976 (9th Cir. 2016); Black

Warrior Riverkeeper, 781 F.3d at 1290; Nat’l Org. of

Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., 260

F.3d 1365, 1380 (Fed. Cir. 2001).

The panel, however, grafted onto that test a categorical rule that effectively deems procedural error too

serious to warrant remand without vacatur. The

panel equated the decision not to prepare an EIS with

bypassing the APA’s notice-and-comment rulemaking

requirement, reasoning that an agency “obviously

c[an]not ordinarily keep in place a regulation while it

complete[s] that fundamental procedural prerequisite.” App. 35a; see also App. 34a (contrasting such

procedural errors with an agency’s failure to adequately “consider certain public comments” or “explain” its “approach”). The court broke ranks here

with other circuits on both Allied-Signal factors.

2. The first factor addresses the “possibility” the

agency “may find an adequate explanation for its actions” on remand. Williston Basin Interstate Pipeline

Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008). The

lower court focused on procedural error, causing it to

consider the wrong “action.” Rather than consider the

“ultimate decision” to grant an easement, the court

asked whether the Corps could justify “skip[ping]

th[e] procedural step” of an EIS. App. 35a. But that

erected an insurmountable obstacle given the court’s

antecedent finding of “error”—it already held that the

Corps could not justify skipping that step. App. 30a31a.

Other circuits instead correctly focus on whether

the agency can justify the ultimate action to be vacated, not antecedent procedural steps that a court

has found unjustifiable. The Fifth Circuit, for example, recently held in Texas Association of Manufacturers v. Consumer Products Safety Commission that a

federal agency “violated the APA by failing to allow

proper notice-and-comment,” among other errors. 989

F.3d 368, 389 (5th Cir. 2021). The court nonetheless

remanded without vacatur because it found “a serious

possibility” that the agency “w[ould] be able to remedy

its failures” after “allow[ing] industry to comment.”

Id. The Ninth Circuit likewise considers “whether by

complying with procedural rules,” the agency “could

adopt the same rule on remand.” Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015).

It has thus held that potential “procedural error[s]” in

an agency rulemaking—notice-and-comment failures

that “might [have] violate[d] an interested party’s

right to meaningfully comment” on the rule—did not

support vacatur because “any disadvantage” those

parties “suffered can be corrected on remand when

they will have an opportunity to comment meaningfully.” Cal. Cmtys. Against Toxics v. EPA, 688 F.3d

989, 993 (9th Cir. 2012).

Multiple circuits have also found that the agency’s

ability to cure its error warranted remand without vacatur in cases involving inadequate agency explanations or responses to criticism. See, e.g., Cent. Me.

Power, 252 F.3d at 44, 48; Cent. & S.W. Servs., 220

F.3d at 692; Black Warrior Riverkeeper, 781 F.3d at

1290. The panel failed in trying to distinguish cases

like these, see App. 34a, because “respond[ing] to significant comments” is a procedural requirement too,

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015).

And the purported error here was fundamentally a

failure to respond to criticism. See App. 30a-31a.

3. The D.C. Circuit’s approach also precluded

consideration of “disruptive consequences” under the

second Allied-Signal factor. According to the court,

allowing “economic consequences” to be a ground for

remanding without vacatur would “subvert NEPA’s

purpose” by incentivizing agencies to “build first” and

comply later. App. 35a. In this, the court echoed the

district court’s analysis discounting the potentially

devastating consequences of vacating the easement as

a necessary by-product of preserving “the structure of

NEPA.” App. 847a. The D.C. Circuit endorsed that

analysis as an appropriate exercise of discretion. But

both analyses are a recipe for never invoking AlliedSignal to remand without vacatur, since they reduce

the Allied-Signal inquiry to the question of whether

the error was serious enough to require remand,

which by hypothesis the court already found. Yet the

question under Allied-Signal is what remedy is equitable and appropriate for that error. Vacatur always

could be said to incentivize better compliance with applicable laws, but courts must weigh that factor

against the potential “disruptive consequences,” not

make it the be-all-and-end-all factor.

The Eighth Circuit, for instance, declined to vacate certain Clean Air Act designations for which the

agency “dispensed with the usual notice and comment

requirements.” U.S. Steel, 649 F.2d at 574. The Ninth

Circuit similarly refused to set aside Clean Air Act

designations the agency “promulgat[ed] … without

prior notice and comment” because doing so would

yield the “undesirable consequenc[e]” of “thwarting”

the “operation of the Clean Air Act” during the remand. W. Oil & Gas Ass’n v. EPA, 633 F.2d 803, 81213 (9th Cir. 1980); see also Cook Inletkeeper v. EPA,

400 F. App’x 239, 241 (9th Cir. 2010) (“leaving the permit in place during remand to avoid the disruptive

consequences” despite “finding [the permit] was

flawed because of a lack of meaningful opportunity for

public comment”). These decisions directly conflict

with the panel’s categorical rule that procedural error

requires vacatur and that the disruptive consequences of vacatur cannot alone justify declining to

vacate the underlying agency action.

Nor is it the case that agencies will fail to comply

with applicable laws unless “incentivized” in this fashion. To the contrary, this Court has explained that,

“in the absence of clear evidence to the contrary,

courts presume” that public officials and agencies

“properly discharg[e] their official duties.” United

States v. Chem. Found. Inc., 272 U.S. 1, 14-15 (1926);

Nat’l Archives & Records Admin. v. Favish, 541 U.S.

157, 174 (2004). The D.C. Circuit’s invocation of “incentives” to justify ignoring the disruptive consequences of vacatur thus conflicts with this Court’s

well-established presumption of regularity for executive action.

This Court’s intervention is needed to enforce the

plain language of the APA, restore uniformity among

the circuits, and prevent agency procedural error from

destabilizing hundreds of millions of dollars invested

by private entities in reliance on the underlying

agency actions.

III. THE QUESTIONS PRESENTED IN THIS CASE

ARE EXCEPTIONALLY IMPORTANT

Certiorari is further warranted because this case

carries enormous ramifications for the oil industry, its

workers, and the nation.

1. If left uncorrected, the decision below would

establish a novel precedent of breathtaking scope that

could delay or thwart any number of other national

infrastructure projects. Armed with the D.C. Circuit’s

“convinc[e] the court” requirement, opponents of pipelines and other necessary infrastructure projects

would inundate agencies with technical, often-irrelevant comments in an effort to manufacture a high controversy and force the preparation of a time-consuming EIS. The lower court’s distorted vacatur analyses

provide litigants a weapon to shut down even long-operational, essential infrastructure projects that have

engendered massive reliance interests. Even unsuccessful efforts to force an EIS would bog down the

agency’s processes and delay critical infrastructure

projects. The upshot will be unnecessary delays and

immense costs to the government, the industry, and

the public.

The danger is especially acute because the D.C.

Circuit resolves a disproportionate number of cases

involving agency decisions. See John G. Roberts, Jr.,

What Makes the D.C. Circuit Different? A Historical

View, 92 Va. L. Rev. 375, 376-77 (2006). Opponents to

infrastructure projects will be able to flock to the D.C.

Circuit—the home of most federal agencies—to exploit its heightened, outlier standard for NEPA suits.

Indeed, the D.C. Circuit has already begun using

the decision below to shut down important infrastructure beyond DAPL. In Environmental Defense Fund

v. FERC, 2 F.4th 953 (D.C. Cir. 2021), that court invoked its decision here in vacating FERC’s grant of a

certificate of public convenience and necessity for a

natural gas pipeline. See id. at 976. As here, the court

held that although “de-issuance of the Certificate”

would cause disruption because “the pipeline is operational,” remanding without vacatur “would give the

Commission incentive to allow ‘build[ing] first and

conduct[ing] comprehensive reviews later.’” Id. (alterations in original) (quoting App. 35a). The decision

below will thus continue to have an adverse impact on

future infrastructure projects, including new electric

transmission lines, and renewable energy projects like

wind and solar, if the ruling remains intact.

2. The decision below leaves DAPL at a significant risk of being shut down, which would precipitate

serious economic and environmental consequences.

The Corps, the Department of Energy, nineteen

states, and multiple industry coalitions submitted

briefs or declarations below attesting to the singular

importance of DAPL to the oil industry, employment,

and the public fisc. Shutting it down would cost the

country billions of dollars and thousands of jobs, all

while the national economy struggles to recover from

the worst recession in more than a decade. See supra,

at 12-13. In 2022 alone, North Dakota crude-oil producers would lose $4.3 billion to $9.9 billion in revenue. D.E. 596-1 ¶ 5(d)(i). And the State of North Dakota would miss out on $1.1 billion to $2.5 billion in

oil and gas extraction and production tax revenues.

Id. ¶ 5(d)(iii). The Mandan, Hidatsa, and Arikara Nation, known as the Three Affiliated Tribes, would likewise lose over $160 million over a one-year period in

revenue-sharing funds and royalties from the exploration and development of oil production on their land,

which DAPL’s reliable and economical capacity has facilitated. D.E. 593-1 ¶ 10.

Shutting down DAPL would also increase risks to

the environment and public safety, including spill

risks, potential fatalities and injuries, and air pollution. Without DAPL, producers would need to shift oil

to less environmentally friendly rail and truck transportation. Courts, academics, and government agencies alike have consistently recognized that “pipeline

transportation of oil is safer than rail transportation”

on a “volume-distance basis (i.e., per barrel-mile).”

Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829, 842

(Iowa 2019); see also Strata, Pipelines, Rail & Trucks:

Economic, Environmental, and Safety Impacts of

Transporting Oil and Gas in the U.S. 6 (2017) (“Pipelines in particular have advantages in terms of safety,

efficiency, and low environmental impacts.”). For example, a 2018 PHMSA study found that pipelines

shipped over fourteen times more crude oil per incident than did rail. A725. Moreover, air pollution from

crude oil trains is nearly twice that from operating a

pipeline. See K. Clay et al., External Costs of Transporting Petroleum Products: Evidence from Shipments

of Crude Oil from North Dakota by Pipelines and Rail,

40 Energy J. 55, 69 (2019).

Plaintiffs maintain that DAPL is operating unlawfully, and the Corps has claimed the authority to

shut it down. See D.E. 609, at 2; D.E. 610, at 3-4; D.E.

612, at 3. DAPL’s ongoing operation thus remains uncertain, with a substantial risk of a shutdown. This

Court should intervene to eliminate this uncertainty

and, by reversing the panel decision, restore Dakota

Access’s easement in order to ensure its continued operation and avoid the economic and environmental

fallout of a shutdown.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

MIGUEL A. ESTRADA

Counsel of Record

WILLIAM S. SCHERMAN

DAVID DEBOLD

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

mestrada@gibsondunn.com

Counsel for Dakota Access, LLC

September 20, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.