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

_______________

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

VOLUME II OF III

_______________

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

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

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

APPENDIX K:

Order of the U.S. Court of Appeals for

the District of Columbia Circuit Denying

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

iii

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. § 1508.28 (2019) ................... 910a

VOLUME III (SEALED)

APPENDIX M:

U.S. Army Corp of Engineers, Analysis of

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

466a

____________________

APPENDIX D

____________________

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX

TRIBE,

Plaintiff,

and

CHEYENNE RIVER SIOUX

TRIBE,

Plaintiff-Intervenor,

U.S. ARMY CORPS OF

ENGINEERS,

Civil Action No.

16-1534 (JEB)

(and Consolidated Case Nos.

16-1769 and 16267)

Defendant,

and

DAKOTA ACCESS, LLC,

Defendant-Intervenor

and Cross-Claimant.

MEMORANDUM OPINION

The dispute over the Dakota Access Pipeline has

now taken nearly as many twists and turns as the

1,200-mile pipeline itself. On June 14, 2017, in its

third Opinion on the case, this Court held that the

U.S. Army Corps of Engineers had failed to fully follow the National Environmental Protection Act when

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it determined that the pipeline would not have a significant environmental impact. Although the Court

found that the agency had “substantially complied”

with the statute, the Opinion identified three discrete

deficiencies in the Corps’ analysis and remanded the

matter to the agency for further evaluation. In doing

so, the Court asked the parties to submit further briefing on the question such an action raised: what is the

proper remedy during this remand period? Specifically, the Court must determine whether or not to vacate the Corps’ environmental assessment, as well as

the easement granted to Dakota Access in reliance on

that determination. Without such an easement, the

oil cannot flow through the pipeline.

The propriety of vacatur during remand is determined by a two-prong test that requires the Court to

consider (1) the seriousness of the deficiencies in the

agency action and (2) the disruptive consequences of

vacating that prior approval. As to the first, the Court

ultimately concludes that the three errors identified

in the prior Opinion are not fundamental or incurable

flaws in the Corps’ original analysis; rather, the

agency has a significant possibility of justifying its

prior determinations on remand. Although the Court

finds that the equities of disruption do not tip sharply

in Defendants’ favor on the second factor, prevailing

on the first is enough here for them to avoid vacatur.

Procedural History

The lengthy factual history of this case is set forth

in this Court’s prior Opinion, Standing Rock Sioux

Tribe v. U.S. Army Corps of Engineers (Standing Rock

III), 255 F.Supp.3d 101, 2017 WL 2573994 (D.D.C.

June 14, 2017), and need not be repeated here. Suffice

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it to say that Plaintiffs, the Standing Rock and Cheyenne River Sioux Tribes (and other intervenors and

consolidated Plaintiffs), strongly oppose the current

route of the Dakota Access Pipeline (DAPL), a nearly

1,200-mile domestic pipeline running from North Dakota to Illinois. In particular, the Tribes protest

DAPL’s crossing at Lake Oahe, a federally regulated

body of water that borders their reservations. Created

by the Corps in 1958 via a dam constructed on the

Missouri River, the Lake is a primary source of water

for the Tribes, and it is considered sacred to their spiritual practices. Id. at *3.

A. History of Litigation

For the past fourteen months, the Tribes have attempted to prevent oil from flowing under Lake Oahe.

The instant case began on July 25, 2016, when Standing Rock filed its Complaint against the Corps for declaratory and injunctive relief pursuant to the National Historic Preservation Act, National Environmental Policy Act, Clean Water Act, and the River and

Harbors Act. See ECF No. 1 (SRST Complaint),

¶¶ 128-212. The following month, Dakota Access LLC

successfully moved to intervene in support of the

Corps, see ECF No. 7, and the Cheyenne River Sioux

Tribe intervened as a Plaintiff, subsequently filing its

own Complaint. See ECF No. 11-12 (CRST Complaint). The Tribes’ first pass at preventing the pipeline was a motion for a preliminary injunction based

solely on the NHPA, asserting that the ongoing clearing and grading of the land along DAPL’s route disrupted sacred Tribal sites. See Standing Rock Sioux

Tribe v. U.S. Army Corps of Engineers (Standing Rock

I), 205 F.Supp.3d 4, 8-9 (D.D.C. 2016). On September

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9, 2016, the Court denied emergency relief, and construction proceeded. Id. at 37.

On February 8, 2017, the Corps finally granted

Dakota Access an easement pursuant to the Mineral

Leasing Act, authorizing it to cross federal lands at

Lake Oahe and complete the pipeline. See ECF No.

172-11 (Easement). The next day, Cheyenne River

filed a motion for preliminary injunction and an application for a temporary restraining order, this time alleging violations of RFRA. See ECF Nos. 98, 99;

Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock II), 239 F.Supp.3d 77, 81

(D.D.C. 2017), appeal dismissed, No. 17-5043, 2017

WL 4071136 (D.C. Cir. May 15, 2017). Believing these

religious-freedom claims unlikely to succeed, the

Court issued a second Opinion denying the preliminary injunction. See Standing Rock II, 239 F.Supp.3d

at 80.

B. Motions for Summary Judgment

As these emergency motions were ongoing, the

parties filed cross-motions for summary judgment.

See ECF Nos. 117 (SRST MSJ); 131 (CRST MSJ); 172

(Corps MSJ); 185 (DA MSJ). Now focusing on their

environmental claims, the Tribes challenged the

Corps’ decision to issue the easement on the basis of

its July 25, 2016, Environmental Assessment (EA)

and Mitigated Finding of No Significant Impact

(FONSI), asserting that the agency had violated

NEPA by failing to complete an Environmental Impact Statement (EIS). NEPA requires that federal

agencies evaluate the environmental effects of major

government actions, but it does not “mandate particular results.” Robertson v. Methow Valley Citizens

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Council, 490 U.S. 332, 350 (1989). Instead, the statute

“imposes only procedural requirements.” Dep’t of

Transp. v. Public Citizen, 541 U.S. 752, 756 (2004). If

a project will “significantly” affect the “quality of the

human environment,” NEPA requires that the agency

complete a detailed EIS. See 42 U.S.C. § 4332(C). To

determine whether or not there will be such significant effects, however, the agency first prepares a

shorter EA. This “concise public document” discusses

the need for the proposal, the alternatives, the environmental impacts of the proposed action, and the

agencies and persons consulted. See 40 C.F.R.

§ 1508.9(b). If the EA concludes that there will be no

significant environmental impact, the agency may

forgo completing a full EIS.

This was the route chosen by the Corps in this

case. See ECF Nos. 172-1, 172-2 (EA and FONSI).

The agency’s EA and FONSI explained that, given the

proposed mitigation measures and Defendants’ assessment of DAPL’s “anticipated environmental, economic, cultural . . . social[, and] cumulative effects,”

the pipeline’s crossing at Lake Oahe would not “significantly affect the quality of the human environment.” FONSI at 6. The Tribes argued in their briefing that “[t]he Corps’ conclusion that the Oahe crossing was not significant enough to warrant an EIS” was

“arbitrary, capricious, and contrary to law.” SRST

MSJ at 17.

C. Prior Opinion and Remand

On June 14, 2017, two weeks after DAPL became

fully operational, the Court granted in part and denied in part the parties’ motions and remanded certain issues to the Corps. See Standing Rock III, 2017

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WL 2573994, at *40. It rejected Plaintiffs’ motion

with respect to their claims under the Clean Water

Act and the Mineral Leasing Act, and it also upheld

the majority of the Corps’ determinations under

NEPA—including the agency’s “top-line conclusion”

that the risk of an oil spill was sufficiently low so as

to not require an EIS. Id. at *12, 16. It granted the

Tribes’ motion, however, with respect to three discrete

flaws in the Corps’ environmental analysis. The

Court held that the Corps had insufficiently addressed: (1) the degree to which the project’s effects

are likely to be highly controversial; (2) the consequences of a spill for the Tribes’ fishing and hunting

rights; and (3) the environmental-justice impacts of

the project. Id. at *1. Although the Court remanded

these issues to the Corps for further analysis, it did

not decide whether the easement should be vacated

pending such remand. Instead, it ordered the parties

to submit briefing on “whether remand with or without vacatur is appropriate in light of the deficiencies

herein identified and any disruptive consequences

that would result given the current stage of the pipeline’s operation.” Id. at *29.

This briefing is now complete, and the Court must

determine whether or not oil may continue to flow under Lake Oahe. Although the parties dispute what,

precisely, vacatur would entail, see ECF Nos. 277 (DA

Reply) at 1 n.1; 276 (Corps Reply) at 9; 280 (Tribes

Sur-reply) at 1, the prior Opinion clearly stated that

vacatur would require that DAPL “cease operations”

during remand. Standing Rock III, at *28. The Court

therefore assumes at this stage that such a remedy

would vacate the Corps’ prior EA and FONSI, as well

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as the easement it granted to Dakota Access in reliance on these determinations. Without this authorization, DAPL cannot lawfully continue to operate the

pipeline on federal land.

II. Legal Standard

Under the caselaw of this Circuit, “vacating a rule

or action promulgated in violation of NEPA is the

standard remedy.” Humane Soc. of U.S. v. Johanns,

520 F.Supp.2d 8, 37 (D.D.C. 2007) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir.

2001)); see Reed v. Salazar, 744 F.Supp.2d 98, 118-20

(D.D.C. 2010) (finding NEPA violation and ordering

vacatur); Sierra Club v. Van Antwerp, 719 F.Supp.2d

77, 78-80 (D.D.C. 2010) (finding NEPA violation and

ordering remand with partial vacatur); Greater Yellowstone Coal. v. Kempthorne, 577 F.Supp.2d 183,

204-05, 210 (D.D.C. 2008) (finding NEPA violation

and ordering vacatur). Yet, although vacatur is the

“presumptively appropriate remedy,” it is not the only

option. See Sierra Club, 719 F.Supp.2d at 78. Instead, as equity requires, the reviewing court has discretion leave the agency action in place. See, e.g., Advocates for Hwy. & Auto Safety v. Fed. Motor Carrier

Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005)

(remanding without vacatur); Int’l Union, United

Mine Workers of Am. v. Fed. Mine Safety & Health

Admin., 920 F.2d 960, 966-67 (D.C. Cir. 1990) (same).

The test for whether or not a court should vacate

a deficient agency action during remand comes from

this Circuit’s decision in Allied-Signal v. U.S. Nuclear

Regulatory Commission, 988 F.2d 146, 150-51 (D.C.

Cir. 1993). As Allied-Signal explained, “[T]he decision

whether to vacate depends on the seriousness of the

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order’s deficiencies (and thus the extent of doubt

whether the agency chose correctly) and the disruptive consequences of an interim change that may itself

be changed.” Id. at 150-151 (internal citation omitted). Put otherwise, this Court must determine

whether there is “at least a serious possibility that the

[agency] will be able to substantiate its decision on remand,” and whether vacatur will lead to impermissibly disruptive consequences in the interim. See Nat’l

Parks Conservation Ass’n v. Jewell, 62 F.Supp.3d 7,

20 (D.D.C. 2014); Williston Basin Interstate Pipeline

Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008) (declining to vacate when “significant possibility that the

[agency] may find an adequate explanation for its actions”). The question for the Court today is thus

whether this is the “type of case that merits departure

from the presumptive remedy of vacatur.” Pub. Employees for Envtl. Responsibility v. United States Fish

& Wildlife Serv., 189 F.Supp.3d 1, 2-3 (D.D.C. 2016),

appeal dismissed, No. 16-5224, 2016 WL 6915561

(D.C. Cir. Oct. 31, 2016). It therefore examines the

two prongs of Allied-Signal separately below, bearing

in mind that “[t]here is no rule requiring either the

proponent or opponent of vacatur to prevail on both

factors.” Shands Jacksonville Med. Ctr. v. Burwell,

139 F.Supp.3d 240, 270 (D.D.C. 2015).

III. Analysis

A. Seriousness of Deficiencies

The first prong of the Allied-Signal test requires

the Court to determine the “seriousness” of the deficiencies in the underlying agency action. Here, Defendants argue that the three inadequacies identified

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by the Court—namely, the Corps’ failure to adequately address the degree to which the project’s effects are likely to be highly controversial, the impacts

of a spill on fish or game, and the environmental-justice impacts of a spill—are not significant deficiencies

in the agency’s prior analysis. See ECF No. 258

(Corps Brief). Noting that the Court previously rejected the majority of Plaintiffs’ challenges, Defendants contend that there are “only a few remaining

tasks for the Corps to complete on remand” in order to

substantiate the prior EA. See ECF No. 260 (DA

Brief) at 19. Plaintiffs, unsurprisingly, cast the

Court’s Opinion in quite a different light. The Tribes

assert that the Court granted their motion for summary judgment on “three grounds that go to the heart

of this dispute, and that are fundamental to the Tribes

and their treaty rights.” ECF No. 272 (Tribes Brief)

at 1. These issues, the Tribes contend, cast “considerable doubt” upon the Corps’ decision to forgo a full

EIS. See Tribes’ Sur-reply at 10.

Under Allied-Signal, the severity of an agency’s

errors below turns on “the extent of doubt whether [it]

chose correctly.” 988 F.2d at 150-51. The Court therefore must assess the likelihood that, on remand, the

Corps will be able to justify its prior decision to issue

an EA and FONSI, rather than preparing a full EIS.

Such assessment looks at each issue in turn.

1. Highly Controversial

The prior Opinion found that the Corps had failed

to fully consider “the degree to which [DAPL’s] effects

on the quality of the human environment are likely to

be highly controversial.” Standing Rock III, 2017 WL

2573994, at *13 (citing 40 C.F.R. § 1508.27(b)(4)).

475a

This factor must be addressed in “cases where a substantial dispute exists as to the size, nature, or effect

of the major federal action rather than to the existence

of opposition to a use.” Town of Cave Creek, Arizona

v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003). Here, the

Court found that certain of the Tribes’ expert reports

submitted after July 24, 2016, created such a controversy and thus directed the Corps to address those

“scientific critiques.” Standing Rock III, 2017 WL

2573994, at *14. Plaintiffs contend that doing so on

remand will require Defendants to “explicitly . . .

find[ ] meritless each of the many technical criticisms

and supporting data” in the expert reports. See Tribes

Brief at 19. They therefore assert that the Court’s

holding reflects not an “easily explained oversight,”

but a “substantial legal flaw.” Id. at 20. Defendants

feel differently. The Corps argues that, as noted in

the prior Opinion, the record after remand may

demonstrate that Defendants “reasonably” determined that the Tribes’ reports had “material flaws.”

Corps Brief at 10; Standing Rock III, 2017 WL

2573994, at *14. The agency asserts, moreover, that

there is a serious possibility that the 36 conditions on

the existing easement already address any of the experts’ legitimate concerns. See Corps Brief at 10-11.

The Court recognizes that the “lack of a reasoned

explanation is a serious failing in an agency’s decision,

because it leaves the Court in doubt as to whether the

agency chose correctly in making its decision.” AARP

v. United States Equal Employment Opportunity

Comm’n, 2017 WL 3614430, at *16 (D.D.C. Aug. 22,

2017) (internal citation omitted). The question with

respect to vacatur, however, is the extent of that

doubt. See Allied-Signal, 988 F.2d at 150. In this

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case, the Court did not find that the expert reports

submitted after July 25, 2016, presented an insurmountable obstacle to justifying the Corps’ prior EA.

Rather, the Opinion stated that “[i]t may well be the

case that the Corps reasonably concluded that these

expert reports were flawed or unreliable and thus did

not actually create any substantial evidence of controversial effects.” Standing Rock III, 2017 WL 2573994,

at *14. What was missing, the Court found, was that

the Corps “never said as much.” Id.

Correcting this flaw does not require that Defendants begin anew, but only that they better articulate

their reasoning below. Courts have declined to grant

vacatur in similar circumstances, finding that agencies should instead be “afford[ed] a reasonable opportunity to . . . provide a reasoned explanation” of their

choices. See Am. Radio Relay League, Inc. v. FCC, 524

F.3d 227, 242 (D.C. Cir. 2008); Heartland Reg’l Med.

Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009)

(“When an agency may be able readily to cure a defect

in its explanation of a decision, the first factor in Allied-Signal counsels remand without vacatur.”); Black

Oak Energy, LLC v. F.E.R.C., 725 F.3d 230, 244 (D.C.

Cir. 2013) (declining to vacate agency action when

“plausible that [agency] can redress its failure of explanation on remand while reaching the same result”); Williston Basin, 519 F.3d at 504 (declining to

vacate when “significant possibility that the [agency]

may find an adequate explanation for its actions”).

This Court agrees. Although the Corps must give

careful consideration to the expert critiques, it is well

positioned to provide such explanation on remand. Indeed, addressing the degree to which the project is

likely to be highly controversial fits squarely within

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the realm of those “factual disputes” committed to

agency expertise. See Wis. Valley Improvement Co. v.

FERC, 236 F.3d 738, 746 (D.C. Cir. 2001) (citation

omitted); FBME Bank Ltd. v. Lew, 209 F.Supp.3d 299,

342 (D.D.C. 2016) (finding that the “fair likelihood

that the agency will be able to make use of its expertise to justify its reliance on data and information”

counsels in favor of remand without vacatur). On remand, the Corps must exercise its judgment in analyzing Plaintiffs’ expert critiques. The Court finds a

serious possibility that, in doing so, it will be able to

substantiate the prior EA.

2. Fishing and Hunting

The second deficiency identified in the prior Opinion was the Corps’ neglecting to properly assess the

impact of an oil spill on fish and game—two resources

protected by the Tribes’ treaty rights. Standing Rock

III, 2017 WL 2573994, at *16-17. As with the first issue, Plaintiffs assert that remedying this error will

necessitate in-depth analysis through an EIS. See

Tribes Brief at 21. Defendants counter that, given the

minimal risk of an oil spill, there is a substantial possibility that DAPL will have “no significant impacts”

on the Tribes’ hunting and fishing rights. See Corps

Brief at 11. They therefore maintain that the Corps

will likely substantiate that DAPL’s effects on fishing

and hunting, if any, do not require an EIS.

On this issue, Defendants’ task on remand is a

narrow one. As the Court previously noted, the

agency did not “wholly ignore the consequences of a

possible oil spill” on the Tribes’ treaty rights. Standing Rock III, 2017 WL 2573994, at *16. The Corps’

analysis fell short, however, when it “stat[ed] simply

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that ‘[t]he primary issue related to impacts on the

aquatic environment from operation of [DAPL] would

be related to a release from the pipeline,’” without explaining “what those effects would be.” Id. at *17.

Likewise, although the agency addressed the effects of

pipeline construction on wildlife, it failed to consider

the consequences of a spill. Id. These two gaps in the

Corps’ analysis were improper under NEPA, but they

are far from incurable. Although the Tribes assert

that the record on remand will support the need for an

EIS because it “is replete with evidence of the significance of these rights to the Tribe[s],” Tribes Brief at

20, the Court already held that NEPA does not require

any such “existential-scope analysis.” Standing Rock

III, 2017 WL 2573994, at *15. While the Tribes now

reiterate that they place a “high importance . . . on

hunting and fishing,” Tribes Brief at 21, the Corps on

remand must take a “hard look” at the impact of

DAPL on only the resources themselves.

Here, the record shows that the agency is well situated to conduct such an inquiry. It has already gathered information regarding Lake Oahe’s fish and wildlife, and it has conducted a lengthy analysis of the possible toxicity arising from various spill scenarios. See

Standing Rock III, 2017 WL 2573994, at *17; ECF No.

172-1 at 58-59 (discussing wildlife near Lake Oahe);

104 (same); 101 (discussing exposure of Lake Oahe

fish to oil spill); 47-48 (same); 45-46 (discussing potential toxic effects of spill). On remand, the Corps must

simply connect the dots. This, then, is not a case in

which the agency “must redo its analysis from the

ground up.” North Carolina v. EPA, 531 F.3d 896, 929

(D.C. Cir. 2008). The agency already has the data it

needs to determine the impact of a spill on fish and

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game—indeed, it has already concluded that “under

no spill scenario would the acute toxicity threshold for

aquatic organisms be exceeded.” Standing Rock III,

2017 WL 2573994, at *17. The Corps, moreover, will

assess the significance of any consequences on fish

and game in light of its prior determination that the

risk of rupture under Lake Oahe is low. See New York

v. NRC, 681 F.3d 471, 478-79 (D.C. Cir. 2012) (holding

that agency “may find no significant impact if . . . the

combination of probability and harm is sufficiently

minimal”). The record suggests, therefore, that the

Corps “may be able readily to cure a defect in its explanation of [the prior] decision.” Heartland Reg’l

Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir.

2009). Although the agency may ultimately conclude

that this issue nonetheless requires a full EIS, the

Court finds that there is a strong likelihood that it will

instead substantiate its prior decision to issue an EA.

3. Environmental Justice

The last issue concerns the environmental-justice

impacts of the Lake Oahe crossing. The Tribes challenged the selection of that site over an alternative location upstream of Bismarck, North Dakota, arguing

that the Corps had failed to properly analyze whether

the current placement of the pipeline could disproportionately affect low-income, minority communities.

See ECF 117-19 (SRST MSJ). The Court agreed. It

held that the Corps’ “cursory” analysis did not “reasonably support the conclusion that the [Standing

Rock Sioux] Tribe will not be disproportionately affected by an oil spill in terms of adverse human health

or environmental effects.” Standing Rock III, 2017

WL 2573994, at *23. In particular, the Court cast

doubt upon the Corps’ decision to use census tracts

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upstream from the Lake Oahe site—when oil spills

flow downstream—and to consider the communities

within only a half-mile radius of the crossing, given

that the Standing Rock Reservation is located .55

miles downstream. Id. at *20-21. In light of these

flaws and the “minimal” discussion of environmental

justice in the EA, the Court concluded that the agency

“did not properly consider the environmental-justice

implications of the project.” Id. at *23.

Characterizing the Corps’ environmental-justice

assessment as “fatally flawed,” Tribes Brief at 22,

Plaintiffs contend that a valid analysis would “inevitably conclude” that the pipeline disproportionately

affects Native American and low-income populations,

and thus would “yield a different outcome on the core

question of whether an EIS is required.” Id. at 23.

Defendants, of course, disagree, rejoining that “given

the low risk of an oil spill, it is unlikely that . . . a different buffer and environmental justice analysis” will

yield a new result on remand. See Corps Brief at 10.

Although it is a closer call than the first two issues, the Court concludes that the flaws in the Corps’

environmental-justice analysis do not support vacatur. The agency’s action was not, in this case, so lacking as to cast serious doubt on its decision to issue an

EA. The prior Opinion explicitly stated that the Corps

“need not necessarily have addressed” each concern

raised by the Tribes, but only that it must “offer more

than a bare-bones conclusion that Standing Rock

would not be disproportionately harmed by a spill.”

Standing Rock III, 2017 WL 2573994, at *23; see Sierra Club v. FERC, 867 F.3d 1357, 1370 (D.C. Cir.

2017) (holding that the “goal of an environmental-justice analysis is satisfied if an agency recognizes and

481a

discusses a project’s impacts on predominantly-minority communities”); Latin Americans for Soc. & Econ.

Dev. v. Adm’r of Fed. Highway Admin., 756 F.3d 447,

477 (6th Cir. 2014) (noting that “[e]nvironmental impacts and environmental justice issues are a consideration in agency decision making, but are not controlling”). Although the Corps must provide a more robust analysis on remand, there is reason to think that,

in doing so, it has a substantial possibility of validating its prior conclusion.

Indeed, contrary to the Tribes’ statement that a

finding of a disproportionate impact would necessitate

an EIS, the relevant agency guidance expressly contemplates the use of an EA to address such concerns.

See ECF No. 117-19 (CEQ, Environmental Justice

Guidance Under the National Environmental Policy

Act, Dec. 10, 1997) at 15 (“Where a potential environmental justice issue has been identified by an agency,

the agency should state clearly in the EIS or EA

whether, in light of all the facts and circumstances, a

disproportionately high and adverse human health or

environmental impact on . . . Indian tribe[s] is likely

to result from the proposed action.”) (emphasis

added). As a result, even if Defendants did conclude

on remand that a crossing at the Lake Oahe site may

disproportionately affect minority or tribal populations, such an outcome would not compel the Corps to

alter its prior decision to issue an EA and FONSI.

Additionally, multiple aspects of the record suggest that the Corps is likely to justify issuing an EA,

rather than completing an EIS. First, as with the

hunting-and-fishing analysis, the minimal risk of an

oil spill under Lake Oahe reduces the likelihood that

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the project will have a significant impact on the surrounding communities. See Sierra Club, 867 F.3d at

1369 (upholding environmental-justice analysis when

agency concluded, in part, that “the project would not

have a ‘high and adverse’ impact on any population,

meaning, in the agency’s view, that it could not have

a ‘disproportionately high and adverse’ impact on any

population, marginalized or otherwise”); Allen v. Nat’l

Institutes of Health, 974 F.Supp.2d 18, 47 (D. Mass.

2013) (upholding environmental-justice analysis

when project was located in area with larger low-income and minority populations, but agency concluded

that “the likelihood of [adverse effects] is extremely

low”).

Second, the impact of any such spill, if it were to

occur, is in part mitigated by the relocation of the

Standing Rock water-intake structure. The new

structure is situated approximately 50 miles further

downstream from the Lake Oahe crossing than the old

site, and it is outside even the furthest radius suggested by Standing Rock as appropriate for evaluating

the environmental-justice impacts of the pipeline. See

Standing Rock III, 2017 WL 2573994, at *19; ECF No.

117-24 (Memorandum from David Cooper, Chief

Counsel, Corps, Oct. 20, 2016) at 19. Plaintiffs assert

that the old intake structure is still in operation, see

ECF No. 272-3 (Third Decl. of Dave Archambault, II),

¶ 10, but they cannot dispute that the new site will

mitigate at least some of their concerns regarding the

relative impact of a spill on the Tribes’ drinking water.

Finally, the Corps’ already-conducted assessment

of the alternative pipeline route through Bismarck increases the likelihood that the agency will find that

DAPL’s environmental-justice impacts do not require

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an EIS. Under NEPA, the consideration of such alternative routes is relevant to the Corps’ environmentaljustice review on remand, as the statute requires only

that the agency “grapple[ ] with the disparate impacts

of the various possible pipeline routes.” Sierra Club,

867 F.3d at 1369. As the CEQ guidance states, “The

identification of a disproportionately high and adverse

human health or environmental effect on a[n] . . . Indian tribe does not preclude a proposed agency action

from going forward, nor does it necessarily compel a

conclusion that a proposed action is environmentally

unsatisfactory.” CEQ at 10. “Rather, the identification of such an effect should,” inter alia, “heighten

agency attention to alternatives (including alternative sites).” Id.

As the prior Opinion discussed, the alternative

Bismarck crossing would pass much closer to a drinking-water intake than the Lake Oahe location does.

See Standing Rock III, 2017 WL 2573994, at *18-19;

ECF No. 209-16 at 5 (Memorandum from Tom Siguaw, Dakota Access, & Steve Rove, HDR Engineering,

Apr. 12, 2016). The two water intakes downstream

from the Bismarck site serve 84,504 people, while

those downstream from the Oahe intakes serve 8,037.

See Standing Rock III, 2017 WL 2573994, at *18-19.

Risks presented to this tenfold increase in population

must, of course, be considered when the Corps evaluates the environmental-justice impacts, if any, of the

Lake Oahe crossing. See Sierra Club, 867 F.3d at

1371 (noting that, in conducting its environmentaljustice analysis, agency “also considered four route alternatives . . . but rejected them all, mainly on the

ground that they would have had a greater overall im-

484a

pact on residences and populated areas”); Latin Americans for Soc. & Econ. Dev., 756 F.3d at 477 (finding

that agency took requisite hard look at environmental-justice issues when it considered alternatives to

avoid or minimize disproportionately high adverse impacts and “reasonably determined its priorities based

on all the comparative information available”). Under

NEPA, an agency is “not required to select the course

of action that best serves environmental justice, only

to take a ‘hard look’ at environmental justice issues.”

Sierra Club, 867 F.3d at 1368; see Latin Americans

for Soc. & Econ. Dev., 756 F.3d at 476 (“Just as the

[agency] is not required to select an alternative with

the least environmental impact under NEPA, the

[agency] is not required to select an alternative with

the least environmental justice impact.”). The Court

finds that there is a substantial possibility that the

Corps will meet this standard on remand and will substantiate its prior decision to proceed with the Lake

Oahe crossing without an EIS.

In reaching this decision, however, the Court does

not seek to minimize the importance of the Tribes’ environmental-justice concerns. The purpose of this

analysis under NEPA is to ensure that the government properly accounts for the “interrelated cultural,

social, occupational, historical, or economic factors

that may amplify the natural and physical environmental effects” of agency actions. See CEQ Guidance

at 9. There is no doubt that our nation’s history is

replete with examples of Native American tribes bearing the brunt of government action. See ECF No. 2701 (Brief of Amici Curiae Great Plains Tribal Chairmen’s Association, et al.) at 6-8. And Chairman

Archambault is eloquent on why the Tribes believe

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that this pipeline embodies another transgression.

See Archambault Decl., ¶¶ 12-20. Yet the Court’s role

here is not to determine the wisdom of agency action

or to opine on its substantive effects. See Robertson,

490 U.S. at 351 (holding that “NEPA merely prohibits

uninformed—rather than unwise—agency action”).

Instead, it must consider only the Corps’ likelihood on

remand of fulfilling NEPA’s procedural environmental-justice requirements and justifying its prior decision.

In cases in which the agency’s reasoning is “so

crippled as to be unlawful,” vacatur is generally the

appropriate remedy. See Radio-Television News Directors Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir.

1999). If, however, the action is “potentially lawful

but insufficiently or inappropriately explained,” remand without vacatur may instead be imposed. Id.

As is evident from the discussion above, this case falls

within the latter category. Here, the Corps’ decision

to produce only an EA, rather than an EIS, is “potentially lawful.” The errors below were substantial, but

they do not present fundamental flaws in Defendants’

reasoning. Although Plaintiffs contend that the issues on remand go to the “heart” of their opposition to

this project, see Tribes Brief at 1, the question for vacatur is not the importance of the issue, but the extent

of the error. Here, the Court cannot say that the deficiencies in the prior EA and FONSI are “crippling”

flaws in the Corps’ analysis. The Court previously

found that the Corps “largely complied” with NEPA’s

requirements, and it granted remand on only a narrow subset of the Tribes’ NEPA claims. See Standing

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Rock III, 2017 WL 2573994, at *28. The lengthy procedural history of this case shows, moreover, that

there has been nothing hasty about the Corps’ decisionmaking thus far. There is no reason to think that

it will be any less thorough in analyzing the three deficiencies on remand. In light of the agency’s substantial compliance with NEPA, the Court finds that the

Corps has a significant likelihood of being able to substantiate its prior conclusions and determines that

the first prong of the Allied-Signal framework thus

counsels in favor of remand without vacatur.

B. Disruptive Consequences

The second consideration in determining whether

to remand without vacatur is “the disruptive consequences of an interim change that may itself be

changed.” Allied-Signal, 988 F.2d at 150-51; see Conservation Law Found. v. Pritzker, 37 F.Supp.3d 254,

271 (D.D.C. 2014). On this issue, the parties have

much to say about the disruption, or lack thereof, that

will result if the Court vacates the Corps’ prior decisions. As discussed below, the Court concludes that

this factor weighs only slightly in favor of remand

without vacatur.

1. Direct Disruption

Defendants and their amici spend much of their

briefing spelling out what they believe are potentially

dire economic consequences of vacatur. Dakota Access, for example, asserts that if the pipeline is

paused, North Dakota’s oil producers will face severe

costs and delays. See DA Brief at 14; ECF No. 279

(Amici Curiae Brief of American Fuel and Petrochemical Manufacturers) at 6 (stating that “direct financial

487a

impact” of taking DAPL out of service “would be staggering”). The company contends that other pipelines,

refineries, and downstream users of the oil currently

transported in DAPL would also “suffer greatly” and

would be forced into “emergency arrangements” to

compensate for the shutdown. See DA Brief at 14.

The impact of vacatur, Dakota Access posits, would

place in peril the jobs of all those currently involved

in DAPL’s operations and would prevent Dakota Access from being able to perform the contracts it has

entered into with producers. Id. at 18. Defendants

assert that such a halt in pipeline operations would

also deprive state and local governments of millions of

dollars in tax revenue and would undermine new industries that support DAPL operations. See Brief of

American Fuel Manufacturers, et al. at 8, 10. Finally,

Defendants argue that these effects would be passed

on to consumers, claiming that the disruptive market

effects of vacatur would have “significant ripple effects.” DA Brief at 15. In total, Dakota Access declares that issuing vacatur in this case would incur

costs of hundreds of millions of dollars. Id. at 18.

The Tribes contest both the accuracy and the relevance of Defendants’ economic concerns. As to the

former, Plaintiffs have submitted declarations asserting that “DAPL revenues” are likely “substantially

less than indicated” by Defendants and stating that a

DAPL shutdown “will not result in the severe disruptions claimed by the Corps and Dakota Access.” ECF

No. 272-5 (Declaration of Ian Goodman), ¶¶ 41, 43.

They therefore argue that the company’s claims “regarding loss of revenues and other potential impacts

of a DAPL shutdown should not be relied upon to determine the likely impacts” of vacatur. Id., ¶ 41. As

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to the latter, the Tribes question whether “financial

impacts” carry “much or even any weight” when evaluating the second Allied-Signal factor in NEPA cases.

See Tribes’ Brief at 25.

As an initial matter, the Court rejects Plaintiffs’

suggestion that it should wholly disregard the potential for financial disruption. Although this perspective has been suggested in at least one district court

decision, see Ctr. for Food Safety v. Vilsack, 734

F.Supp.2d 948, 953 (N.D. Cal. 2010), it is clear that

courts in this Circuit have repeatedly considered the

economic implications of vacatur—including in cases

addressing environmental harms. See Am. Water

Works Ass’n v. EPA, 40 F.3d 1266, 1273 (D.C. Cir.

1994) (declining to vacate rule addressing lead in

drinking water in part because “vacatur would be unnecessarily disruptive to the [affected] industries”);

Sierra Club v. U.S. Dep’t of Agric., Rural Utilities

Serv., 841 F.Supp.2d 349, 363 (D.D.C. 2012) (NEPA

decision considering potential “substantial financial

loss if the Court were to vacate” under second AlliedSignal prong); Friends of the Capital Crescent Trail v.

Fed. Transit Admin., 218 F.Supp.3d 53, 60 (D.D.C.

2016) (acknowledging that “delay in [agency] project

could impose significant financial costs”); see also California Communities Against Toxics v. U.S. EPA, 688

F.3d 989, 993-94 (9th Cir. 2012) (declining to vacate

in part because stopping construction of power plant

would be “economically disastrous”).

That the Court will consider Defendant’s allegations of financial harm does not, however, mean that

it will necessarily give determinative effect to such

claims. Defendants’ cri de coeur over lost profits and

industrial inconvenience is not fully convincing. Such

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is the nature of doing business, especially in an area

fraught with bureaucracy and litigation. Dakota Access began pumping oil into the pipeline with full

knowledge that Plaintiffs were contesting the easement allowing them to do so. By nonetheless proceeding with its venture, the company assumed some risk

of economic disruption. See ECF No. 259-2 (Declaration of David Murk), ¶ 8 (stating that impact of vacatur would not have been severe “had DAPL not begun

operations in June 2017”).

There is, moreover, some cause for skepticism regarding Dakota Access’s predictions of economic devastation. This is not the first time the company has

staked out this position—it previously claimed that

delays in the pipeline would have disastrous economic

effects. During the first preliminary-injunction briefing, the company warned that contracts for DAPL

could be canceled if it was not able to start delivering

oil by January 1, 2017. See ECF No. 22-1 (Declaration

of Joey Mahmoud, Aug. 18, 2016), ¶¶ 69-70. Yet the

pipeline did not come on line until June, and no apparent calamity ensued. See ECF 277-12 (Second

Declaration of Lee Hanse), ¶ 4 (stating that “no contracts have been renegotiated or terminated”). The

Court thus cannot conclude that, in the case of a halt

in DAPL operations, the company would have no alternative option.

The empirical basis for Defendants’ assertion that

vacatur would have catastrophic economic effects is,

additionally, sharply contested by the Tribes. See

Goodman Decl., ¶¶ 43-48, 75 (asserting that impacts

to energy systems and market due to vacatur would

likely be “small to very small”). Indeed, it is unclear

from the current record how much oil is even flowing

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through the pipeline at this time. Compare id., ¶¶ 1925 (stating that DAPL appears to be operating at partial capacity) with DA Brief at 13 (claiming that DAPL

carries equivalent of 500,000 barrels per day) with DA

Reply at 6 (citing figure of 300,000 barrels per day).

The parties ask the Court to wade into this war of the

crude-oil experts. Yet, because it declines to rely

heavily on economic impact as a justification for issuing vacatur, the Court need not resolve this factual

dispute. See Pub. Employees for Envtl. Responsibility, 189 F.Supp.3d at 3 (stating that “absent a strong

showing . . . that vacatur will unduly harm economic

interests . . . [,] the Court is reluctant to rely on economic disruption” in denying vacatur).

Beyond the data, there are broader concerns with

Defendants’ economic claims. Dakota Access and its

amici focus almost exclusively on the financial and industrial implications of a temporary DAPL shutdown.

In doing so, they address the “potentially disruptive

effects of vacatur as if they occur in a vacuum,” thus

giving short shrift to the “potentially disruptive effects that could flow from remand without vacatur.”

Friends of the Capital Crescent Trail v. Fed. Transit

Admin., 218 F.Supp.3d 53, 60 (D.D.C. 2016). Here,

there is no doubt that allowing oil to flow through the

pipeline during remand risks the potentially disruptive effect about which the Tribes are most concerned—a spill under Lake Oahe. The likelihood of

any such rupture may be low, but pausing the operation of the pipeline would mitigate even this small

risk. By emphasizing the financial impacts of vacatur,

Defendants ignore the “devastating” consequences

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that the Tribes allege could result from remand without such a remedy in place. See Archambault Decl.,

¶ 10-11.

This economic myopia ignores the fact that the

possible effects of an oil spill on the Tribes’ treaty

rights and communities were at the center of this

Court’s prior Opinion. See Standing Rock III, 2017

WL 2573994, at *10. Defendants unfairly downplay

these concerns. Indeed, the Corps alleges that “loss of

life is notably absent from Plaintiffs’ discussion of potential worse-case spills.” Corps Reply at 8. Yet one

need only refer to the Tribes’ declarations to see that

they do, in fact, assert that such drastic harms could

flow from a spill under Lake Oahe. See ECF Nos. 11716 (Declaration of Jeff Kelly), ¶¶ 5-9 (stating that

many Tribal members rely on hunting and fishing to

survive); 272-3, Exh. B (Letter from Dave Archambault to Acting Assistant Sec. Lamont and Colonel

Henderson) at 4 (discussing serious, life-threatening

health and safety consequences of potential oil spill);

131-4 (Declaration of Harold Frazier) (stating that

water shortage on reservation previously caused

“death of four children in a house fire” due to insufficient water supply for firefighting). Although the

Court acknowledges the potential for economic disruption, these interests do not inherently trump the

risk of environmental disruption if vacatur is withheld. See Pub. Employees for Envtl. Responsibility,

189 F.Supp.3d at 3 (stating that it is “not clear that

economic concerns are as relevant in an environmental case”) (emphasis added).

The Court notes, moreover, that denying vacatur

on the basis of alleged economic harm risks creating

undesirable incentives for future agency actions. If

492a

projections of financial distress are sufficient to prevent vacatur, the Court fears that agencies and third

parties may choose to devote as many resources as

early as possible to a challenged project—and then

claim disruption in light of such investments. Such a

strategy is contrary to the purpose of NEPA, which

seeks to ensure that the government “looks before it

leaps.” ECF No. 269-1 (Brief of Amici Curiae of Law

Professors and Practitioners) at 5. Finding that vacatur’s alleged financial harms are dispositive under the

second prong of Allied-Signal may encourage agencies

to instead act first and ask later. In sum, although

the Court concludes that there is likely to be some economic disruption from vacatur, this factor does not

weigh heavily in Defendants’ favor under the AlliedSignal test.

2. Alternative Transport

In addition to asserting that vacatur would have

devastating economic effects, Defendants also argue

that such a remedy would not, in fact, ameliorate

Plaintiffs’ concerns during the remand period. Dakota

Access contends that, if vacatur is granted, the oil currently flowing through the pipeline will be re-routed

onto trains. See DA Brief at 15-16. The company

states that this form of transport involves a greater

risk of accidents and thus argues that vacatur would

put the Tribes in more environmental peril than the

current status quo. Id. Plaintiffs dispute both the

facts and the premise of this position. The Tribes contend that there is little data supporting the proposition that train transport would be used in lieu of

DAPL. They point instead to expert reports stating

that, if DAPL were shut down, “much of” the crude

currently flowing under Lake Oahe would “shift back

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to . . . other pipelines, rather than to rail.” Goodman

Decl., ¶ 62. The Tribes also contest the relative safety

of the two modes of transport, referring to their expert’s conclusion that it is “incorrect to state that pipelines are ‘undeniably safer’ than rail,” and that pipelines such as DAPL are “capable of releasing substantially more oil than trains.” Id., ¶¶ 87-88. Examining

the respective routes and capacities of train lines and

DAPL, the report concludes that, for the Tribes,

“DAPL has [a] . . . much greater risk than does crude

by rail.” Id., ¶ 114. Finally, the Tribes contend that

Defendants miss the mark by relying upon the overall

risks presented by train transport versus pipelines.

Instead, Plaintiffs contend that the Court should concern itself solely with the risk to the Tribes from

DAPL and its current crossing at Lake Oahe. See

Tribes’ Sur-reply at 15.

In considering the transport question, both parties acknowledge that this Circuit has “previously remanded without vacatur . . . if vacating ‘would at least

temporarily defeat . . . the enhanced protection of the

environmental values covered by [the statute at issue].’” Ctr. for Biological Diversity v. Envtl. Prot.

Agency, 861 F.3d 174, 188 (D.C. Cir. 2017). In Davis

Cty. Solid Waste Mgmt. v. U.S. E.P.A., 108 F.3d 1454

(D.C. Cir. 1997), for instance, this Circuit found emissions guidelines to be legally inadequate, but declined

to vacate them during the remand process because

“greater pollution emissions would occur” without

leaving the guidelines in place. Id. at 1459-60. Similarly, in American Farm Bureau Federation v. EPA,

559 F.3d 512 (D.C. Cir. 2009), the court remanded but

did not vacate a deficient agency standard governing

494a

air pollutants, reasoning that “vacating a standard because it may be insufficiently protective would . . .

mak[e] the best an enemy of the good.” Id. at 528. Put

otherwise, this Circuit has recognized that, at times,

a flawed agency action is better than no action at all.

Yet this is not such a case. On this record, Defendants have failed to persuade the Court that

transport by train is significantly more dangerous

than allowing oil to continue to flow beneath Lake

Oahe. The record contains no concrete figures or substantiated studies regarding the risks presented by

rail transportation versus DAPL’s Lake Oahe crossing. Instead, the Court is left with vague projections

such as Defendants’ assertion that vacatur “could result in at least some portion” of the oil being moved

via train and their broad claim that rail transport

“poses a higher accident risk” than the use of pipelines. See Corps Brief at 13 (emphasis added). These

forecasts do little to assure the Court that vacatur

would in fact put the environment in any greater peril.

See Pub. Employees for Envtl. Responsibility, 189

F.Supp.3d at 3-4 (granting vacatur when agency’s

forecasted harms were imprecise or speculative).

Plaintiffs and one amicus for Defendants, moreover,

cast doubt on whether the oil currently flowing

through the pipeline would, in fact, be re-routed onto

rail. See Brief of Am. Fuel Manufacturers, et al. at 10;

Goodman Decl., ¶ 62 (stating that most oil would be

transferred to other pipelines). Given that it is not

“guaranteed that . . . producers or shippers would

choose in the near term to ship oil on transportation

modes other than DAPL,” Defendant’s argument is

speculative at best. See Brief of Am. Fuel Manufacturers, et al. at 10.

495a

What is clear is that accidents and spills, however

they may occur, have the potential to wreak havoc on

nearby communities and ecosystems. The effects that

concern the Court today are not general environmental ones throughout the Midwest, but those that may

result from this pipeline in this location at Lake Oahe.

Those are the impacts that the Court found were insufficiently addressed by the Corps, and those are the

impacts that Plaintiffs fear during the remand period.

For this reason, and because the Court does not find

that alternative modes of transport required by vacatur, if any, will necessarily increase the risk of an oil

spill, it rejects this argument against vacatur.

3. Other Considerations

The Corps also attempts to argue that vacatur

here would “have greater disruptive consequences

than in the typical NEPA case” because the pipeline

has already been completed. See Corps Brief at 12.

The agency contends that vacatur is the standard

remedy in NEPA cases only when it would affect the

“prospective application of rules or agency actions,”

rather than situations in which the challenged outcome has already gone into effect. Id. Plaintiffs counter that this distinction finds little footing in the facts

of the case. See Tribes Sur-reply at 5-6.

The Tribes have the better of this dispute. Although construction is complete and oil is flowing,

Plaintiffs are not asking for the pipeline itself, or for

any existing infrastructure, to be dismantled. Id. at

2. Instead, their concerns in this case, and the deficiencies identified in the prior Opinion, involve the

risks presented by the continued passage of oil under

the Lake. This is clearly an ongoing, and prospective,

496a

event. This is thus not a case in which “[t]he egg has

been scrambled and there is no apparent way to restore the status quo ante.” Sugar Cane Growers Coop.

v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (remanding in lieu of vacating agency action where agency had

already administered program disbursing large quantities of sugar to farmers who had already plowed under their crops). The oil may currently be flowing, but

Defendants do not dispute that it could be stopped.

Although courts have declined to vacate improper

agency actions when doing so would be an “invitation

to chaos,” id. at 97, in this case vacatur would be, at

most, an invitation to substantial inconvenience.

Contracts may have to be renegotiated and alternative modes of transportation found, but there is no indication in the record that Defendants’ actions under

the improper EA cannot be undone.

Finally, the Corps’ assertions regarding the timing of the remand process are also relevant to analyzing the disruption in this case. The agency now states

that it anticipates completing its independent review

and analysis of the remand issues by April 2018,

which is several months after its initial estimate. See

ECF No. 281 (Notice of Revised Schedule); Corps Brief

at 1. This timeline aids both parties’ positions with

respect to the impact of vacatur. On one hand, the

multiple-month period of review increases the risk

that a spill will occur prior to the new analysis and

thus strengthens the Tribes’ assertion that such an incident could occur during the remand process. On the

other hand, this timing also supports Defendants’ position that vacatur would have severe disruptive effects. To vacate the easement during the remand process would stop oil from flowing under Lake Oahe for

497a

at least six months—an interruption that could cause

significant harms to numerous people and entities.

The remand period thus supports both sides’ arguments regarding the real-world impact of the Court’s

choice today, but does not dictate the outcome either

way.

The second prong of Allied-Signal, consequently,

does not counsel strongly in favor of remand without

vacatur. It is undeniable that stopping the flow of oil

beneath Lake Oahe will have some disruptive effect,

but all the considerations on this prong tip only narrowly in favor of Defendants. Because the Court has

concluded that the Corps’ errors are likely to be cured

under the first prong, it need not define the precise

scale of the potential disruption. This is because in

circumstances in which the first prong of Allied-Signal

supports remand without vacatur, the second prong

“is only barely relevant.” Fox Television Stations, Inc.

v. FCC, 280 F.3d 1027, 1049 (D.C. Cir. 2002), opinion

modified on reh’g, 293 F.3d 537 (D.C. Cir. 2002). In

those instances, “though the disruptive consequences

of vacatur might not be great, the probability that the

[agency] will be able to justify retaining [its prior decision] is sufficiently high that vacatur . . . is not appropriate.” Id. This is such a case. The Court therefore need not rely upon disruption in deciding that vacatur is not the appropriate outcome.

C. Other Relief

In their briefing the Tribes request that, if the

Court declines to vacate, it instead impose a series of

conditions on the continued operation of DAPL under

498a

Lake Oahe. Defendants, in their response, do not address the merits of these proposed remedies; rather,

they assert only that the Court lacks jurisdiction to

enter such an order. See Corps Brief at 4. This is not

so. A reviewing court may craft relief as equity requires. W. Oil & Gas Ass’n v. EPA, 633 F.2d 803, 813

(9th Cir. 1980) (“[A] reviewing court has discretion to

shape an equitable remedy.”); Montana Wilderness

Ass’n v. Fry, 408 F.Supp.2d 1032, 1034 (D. Mont.

2006) (“The district court’s equitable powers are

broad, and it is within the court’s authority to fashion

a remedy that fits the particular facts of the case before it.”); Sierra Forest Legacy v. Sherman, 951

F.Supp.2d 1100, 1106 (E.D. Cal. 2013) (“Vacatur is

clearly a form of equitable relief that the Court may

award, withhold, and craft to fit the circumstances of

the case before it.”) (emphasis added); Conservation

Cong. v. United States Forest Serv., 2017 U.S. Dist.

LEXIS 82440, at *9 (E.D. Cal. May 26, 2017) (finding

NEPA violation, declining to vacate agency decision,

but enjoining Defendants from “removing any trees

with 20 inches [diameter at breast height] or greater

in implementing the Project”).

Because Defendants should have an opportunity

to express their views on the substance of Plaintiffs’

requests, the Court will permit abbreviated further

briefing on this issue.

IV. Conclusion

In light of the “serious possibility” that the Corps

will be able to substantiate its prior conclusions, the

Court finds that vacatur is not the appropriate remedy in this case. That determination does not, how-

499a

ever, excuse Defendants from giving serious consideration to the errors identified in this Court’s prior

Opinion. Compliance with NEPA cannot be reduced

to a bureaucratic formality, and the Court expects the

Corps not to treat remand as an exercise in filling out

the proper paperwork post hoc. After the agency’s further work on remand, the parties may well disagree

over the sufficiency of its conclusion. If and when such

a dispute arises, they will again have the opportunity

to address whether Defendants have in fact fulfilled

their statutory obligations.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: October 11, 2017

500a

____________________

APPENDIX E

____________________

DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS, OMAHA DISTRICT

1616 CAPITOL AVENUE

OMAHA NE 68102-4901

REPLY TO

ATTENTION

CENWO-OC

31 August 2018

MEMORANDUM FOR RECORD

SUBJECT: Consideration of the Issues Remanded by

the U.S. District Court for the District of Columbia related to the Dakota Access Pipeline Crossing at Lake

Oahe, North Dakota

1. The purpose of this memorandum and enclosure is to respond to the issues remanded back to the

U.S. Army Corps of Engineers for additional analysis

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

See Standing Rock Sioux Tribe v. U.S. Army Corps of

Eng’rs, No. 16-1534, Memorandum Opinion (D. D.C.

June 14, 2017)(ECF No. 239). On remand, the Corps

was directed to “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.” Memorandum Opinion at 2.

2. To address these three issues, the Corps

sought input from Energy Transfer Partners, the

Standing Rock Sioux Tribe, the Cheyenne River Sioux

501a

Tribe, the Oglala Sioux Tribe, and the Yankton Sioux

Tribe. In addition, the Corps conducted its own analysis of available information and considered materials

in the administrative record and has fully considered

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.” The Corps’ review on remand did not reveal “significant new circumstance[s] or information

relevant to environmental concerns.” 40 C.F.R. §

1502.9(c). Therefore, the Corps concludes that a formal reconsideration of the July 2016 Final Environmental Assessment and Finding of No Significant Impact or the preparation of supplemental National Environmental Policy Act documentation is not required.

With respect to each of the remand issues, the Corps

finds:

a. The Corps’ review on remand of the potential impacts of an oil spill to hunting and fishing resources did not reveal any significant impacts because

the risk of an incident is low and any impacts to hunting and fishing resource will be of limited scope and

duration.

b. With respect to Environmental Justice,

the Corps finds that granting Section 408 permission

and conveying a right-of-way to Energy Transfer Partners to construct and operate a portion of the DAPL

under federally-owned Corps-managed land does not

result in disproportionately high and adverse human

health or environmental effects on minority populations, including Tribes, and low-income populations.

Further NEPA analysis or any new mitigation beyond

the EA/FONSI and the February 8, 2017 Easement

conditions is not required.

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c. The Corps considered the comments and

concerns expressed by the Tribes regarding the data

and methodologies used by the Corps. While the

Tribes opposed the Corps’ authorizations for the pipeline’s Lake Oahe crossing, they did not provide information that demonstrated that a substantial dispute

exists as to the size, nature, or effect of the federal action. Accordingly, the Corps finds that the effects of

the federal action here are not “likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4).

3. The Corps has outlined the rationale supporting these findings in the enclosed document and in the

Administrative Record.

Encl

JOHN L. HUDSON, P.E.

Colonel, EN

Commanding

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____________________

APPENDIX F

____________________

Review and Analysis of Tribes’ Submissions

August 31, 2018

The Corps reviewed the Tribal documents expressing issues of concern. The Corps characterizes

the comments and presents the issues raised within

each of the documents as comment excerpts (hereafter

referred to as “comments”). The letter identifies the

document in accordance with the ID column in Table

III-1. The number following the letter is the comment

number. The number following the period is the page

number of the document. For example, A1.3 represents the first characterized comment from the EarthFax Letter, which can be found on page 3 of the EarthFax Letter. The Corps’ responses to comments with

similar subject matter were grouped together to reduce redundancy in the response process. For comments with similar subject matter, the Corps provided

a comprehensive response the first time the issue is

addressed and the related comments are identified in

association with the first Comment ID for that comment topic.

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Document A: Review of the Dakota Access

Pipeline Project

Letter to President John Yellow Bird Steele

and Members of the Tribal Council Oglala

Sioux Tribe, Richard White, PE; Earthfax

Engineering Group

A1.3 “[T]he EA should have considered spill volumes well in excess of 100 bbl as a reasonable incident

scenario rather than implying that a 4 bbl spill is the

norm.”

RESPONSE: EarthFax estimates the total volume of oil available for release in the event of a pipeline rupture at the 24” pipeline crossing of the Missouri River, and the 30” crossing of Lake Oahe. EarthFax desktop estimation methodology started by determining the volume of oil that would pass a given point

per unit of time based on the pipelines proposed

570,000 barrels/day (bbls/day) capacity. EarthFax

then used estimates for average releases in the United

States to assume a 3-minute response time to a release on the DAPL line. EarthFax then added to that

quantity the volume of oil contained in a 24” or 30”

diameter cylinder, respectively, that spans the length

of the water body from estimated valve to valve. The

second column of Table Al shows the EarthFax results

as compared to the results of the initial DAPL spill

modeling as reported in the May 2016 North Dakota

Lake Oahe Crossing Spill Model Discussion (“Lake

Oahe Crossing Report”).

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preparation of the Facility Response Plan (FRP). Accordingly, ETP performed modeling in order to develop the theoretical worst-case release volumes so

that the response equipment and response team can

be sized accordingly in compliance with 49 CFR §

194.105.

The predicted spills generated by the model take

a very conservative approach. Lake Oahe Crossing

Report at 13. Using this approach, the predicted

spills are larger and therefore overestimate the majority of spills seen in actual releases. This is due to

a number of factors such as:



Most releases are not caused by full ruptures

of the pipeline.

 Due to anti-siphoning effects, a full gravity

drain-down rarely occurs

 The spill model assumes the pipeline is lying

directly on top of the ground. In reality, the

compacted back-fill over a buried pipeline restricts the volume that could be released during a spill and restricts the affected area.

 At water crossings, the spill model assumes

that the pipeline is lying directly on top of

the water. Because of the Horizontal Directionally Drilled (HDD) crossing of the waterway, the overburden over the installed pipeline at least 92 feet below the lake restricts

the spill volume that could be released and

restricts the affected area.

To summarize, the Corps considered spill volumes

well in excess of 100 bbls in the EA, consistent with

EarthFax’s suggestion. ETP calculated a worst-case

scenario specific to Lake Oahe following guidance in

49 CFR § 194.105. Final EA at 91. ETP estimated

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potential release volumes that are

% larger for the

Lake Oahe crossing than the 4,620 bbls for a 30” pipe

with a 3-minute response time that Earthfax indicated was realistic. Spill Model Report at iii.

Furthermore, some commenters asserted that a

lack of specific information in publicly available documents about the calculation of the worst-case release

values means that the estimates of potential spill volumes used for spill planning were unrealistically low.

The calculation of the worst-case release values have

been available to the Tribes and their experts as part

of the administrative record in the district court proceeding. USACE DAPL72253.

As detailed above, the Corps considered the appropriate diameter of the pipeline in accordance with

EarthFax’s comment. Therefore, this comment does

not show that substantial dispute exists as to the size,

nature, or effect of the major federal action because

the comment does not show flaws in the methods or

data the Corps actually relied on here.

See also A6, B8, B9, E13, F3, F4, F18, G4, G10,

J18, Li, L7, L9, L13, L23, L26, L46, L30, L42, L61

A2. 4 “[T]he effects of dilution in the water were

based on average annual discharge rates of the Missouri River at nearby gaging stations rather than relying on conservatively lower discharge rates. At a minimum, the lowest mean daily discharge rates for the

periods of record at the nearby gaging stations should

have been used in the analysis . . . . Using these more

conservative discharge rates, the estimated benzene

concentrations provided in Table 3-7 of the EA would

have been substantially higher at each crossing than

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indicated (up to approximately twice as high as presented for the Missouri River crossing).”

RESPONSE: EarthFax asserts that using more conservative river-flow rates would result in substantially

higher estimated benzene concentrations at each crossing. But EarthFax did not provide any scientific evidence or studies specific to discharge rates and benzene

concentrations that would cause the Corps to doubt its

previous methodologies and data supporting the Corps’

reliance on ETP’s low-flow discharge rates instead of the

lowest mean daily discharge rate for the periods of record. Therefore, this comment does not show that a substantial dispute exists as to the size, nature, or effect of

the major Federal action.

For further explanation, the lowest mean daily discharge rates for the period of record is the discharge rate

for the one where the average flow rate was the lowest

among all days considered. Even if the Corps used the

lowest mean daily discharge rates in the calculations,

the individual cells with exceedances for the individual

categories within Table 3-7 of the EA would not have

changed. Therefore, the use of lowest mean daily discharge rates would have no material impact on the assessment based on Table 3-7. Low flow rates are the appropriate unit of measurement instead of the lowest

mean daily discharge rates for the period of record because the lowest mean daily discharge rates for the period of record is an absolute lowest value and may be an

extreme outlier and not genuinely representative of conditions.

ETP performed additional spill modeling that includes low flow rates for Lake Oahe. In the Spill Model

Report, the low flow condition was defined as being the

5 percentile daily flow rate for the 50-year period of recffi

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ord. Spill Model Report at 69. This provided for a statistical low flow over a wide range of flow rates without

potentially introducing extreme outliers. The results

are presented in the Spill Model Report. Spill Model Report at70-73.