Amicus Curiae Brief — Dakota Access, LLC, Petitioner v. Standing Rock Sioux Tribe, et al.

No. 21-560

In the

Supreme Court of the United States

DAKOTA ACCESS, LLC,

Petitioner,

v.

STANDING ROCK SIOUX TRIBE, et al.,

Respondents.

On Petition for a Writ of Certiorari to the U.S. Court

of A ppeals for the District of Columbia Circuit

BRIEF OF THE AMERICAN FUEL &

PETROCHEMICAL MANUFACTURERS, AMERICAN

PETROLEUM INSTITUTE, ASSOCIATION OF OIL

PIPE LINES AND NATIONAL ASSOCIATION OF

CONVENIENCE STORES AS AMICI CURIAE IN

SUPPORT OF PETITIONER DAKOTA ACCESS, LLC

David H. Coburn

Counsel of Record

Joshua H. Runyan

Cynthia L. Taub

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

(202) 429-3000

dcoburn@steptoe.com

Counsel for Amici Curiae

308701

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..................................................... 4

ARGUMENT ............................................................... 6

I.

II.

THIS COURT SHOULD REVIEW THE D.C. CIRCUIT’S

HEIGHTENED NEPA STANDARD ......................... 6

A.

The D.C. Circuit’s Requirement that the

Corps Must “Convince the Court”

Conflicts with Precedent of this Court

and Other Circuits ................................. 7

B.

The D.C. Circuit Erred in Ordering the

Corps to Prepare an EIS Based on the

Court’s Finding of Controversy ........... 10

THE QUESTIONS PRESENTED IN THIS CASE ARE

EXCEPTIONALLY IMPORTANT FOR INDUSTRY .... 13

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

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

465 F.3d 215 (5th Cir. 2006) ................................ 11

Dep’t of Transp. v. Public Citizen,

541 U.S. 752 (2004) .................................... 9, 10, 12

Hillsdale Envtl. Loss Prevention, Inc. v.

U.S. Army Corps of Eng’rs,

702 F.3d 1156 (10th Cir. 2012) .................. 9, 10, 13

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

325 F.3d 851 (7th Cir. 2003) ............................ 9, 11

Kleppe v. Sierra Club,

427 U.S. 390 (1976) ................................................ 8

Marsh v. Oregon Natural Resources

Council,

490 U.S. 360 (1989) .................................... 8, 10, 11

McGuinness v. U.S. Forest Serv.,

741 F. App’x 915 (4th Cir. 2018).......................... 10

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

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .................................................. 8

Nat’l Parks Conservation Ass’n v.

Semonite,

916 F.3d 1075 (D.C. Cir. 2019) ...................... 11, 12

iii

North Carolina v. FAA,

957 F.2d 1125 (4th Cir. 1992) ................................ 9

Save Our Cumberland Mountains v.

Kempthorne,

453 F.3d 334 (6th Cir. 2006) .................................. 9

Sierra Club v. Clinton,

746 F. Supp.2d 1025 (D. Minn. 2010) ................. 18

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

828 F.3d 402 (6th Cir. 2016) ................................ 11

Soc’y Hill Towers Owners’ Ass’n v.

Rendell,

210 F.3d 168 (3d Cir. 2000) ................................. 10

Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs,

255 F. Supp. 3d 101 (D.D.C. 2017) ...................... 18

Standing Rock Sioux Tribe v. U.S. Army

Corps of Eng’rs,

282 F. Supp. 3d 91 (D.D.C. 2017) ........................ 12

Town of Marshfield v. FAA,

552 F.3d 1 (1st Cir. 2008) .................................... 10

Wetlands Action Network v. U.S. Army

Corps of Engineers,

222 F.3d 1105 (9th Cir. 2000) .............................. 11

Wild Wilderness v. Allen,

871 F.3d 719, 729 (9th Cir. 2017) ........................ 13

iv

WildEarth Guardians v. Conner,

920 F.3d 1245 (10th Cir. 2019) .............................. 9

Statutes

33 U.S.C. §§ 1321(j)(5)(D)(iii)-(iv) ............................. 17

49 U.S.C. § 60102(a)(1) ............................................. 17

49 U.S.C. § 60121(a) .................................................. 19

Council on Environmental Quality, The

Fourth Report on Cooperating

Agencies in Implementing the

Procedural Requirements of the

National Environmental Policy Act,

Attachment A (Oct. 4, 2016),

https://ceq.doe.gov/docs/ceqreports/Attachment-A-FourthCooperating-AgencyReport_Oct2016.pdf ............................................. 15

Pipeline Safety Act, 49 U.S.C. §§ 60101,

et seq. ...................................................................... 5

Other Authorities

40 C.F.R. § 1508.27 ..................................................... 6

40 C.F.R. §§ 1508.27(b)(1)–(10)................................. 10

40 C.F.R. § 1508.27(b)(4) ....................................... 6, 13

49 C.F.R. Parts 194-195 ............................................ 17

49 C.F.R. § 194.105 ................................................... 17

v

49 C.F.R. § 195.452 ................................................... 17

49 C.F.R. § 195.452(i)(3)............................................ 17

51 Fed. Reg. 15,618 (Apr. 25, 1986) .......................... 13

85 Fed. Reg. 43,304 (July 16, 202 ....................... 14, 15

Council on Environmental Quality,

Environmental Impact Statement

Timelines (2010-2018) (June 12,

2020), https://ceq.doe.gov/docs/nepapractice/CEQ_EIS_Timeline_Report_

2020-6-12.pdf ........................................................ 15

Exec. Order No. 13,990, 86 Fed. Reg.

7,037 (Jan. 25, 2021) ............................................ 16

INTEREST OF AMICUS CURIAE1

Amici are trade associations whose members have

a significant interest in the reliable and consistent

application of the National Environmental Policy Act

(“NEPA”) to assess impacts resulting from pipeline

and other infrastructure projects advanced by Amici’s

members. Collectively, Amici represent entities that

account for, among other things, the vast majority of

petroleum

products

that

are

transported,

manufactured, and sold in the United States,

including crude oil and other hydrocarbons that are

transported by pipelines and other modes in

interstate and foreign commerce.

The

American

Fuel

&

Petrochemical

Manufacturers (“AFPM”) is a national trade

association representing most U.S. refining and

petrochemical manufacturing capacity.

AFPM’s

member refineries and petrochemical facilities receive

crude oil and other liquids products via the midstream

sector, which includes pipelines, rail roads, barges,

tankers, and trucks. AFPM’s member companies

have an interest in ensuring that they consistently

and reliably receive the North American crude oil

1 Amici provided timely notice of their intention to file this

brief to the parties, each of which consented. No counsel for

either party authored this brief in whole or in part, nor did any

party or other person or entity other than amicus curiae, its

members, and its counsel make a monetary contribution

intended to fund its preparation or submission. Petitioner

Dakota Access, LLC’s parent company, Energy Transfer, is a

member of AOPL and API, but apart from the dues it pays as a

member, did not contribute money intended to fund preparation

or submission of this brief.

2

volumes that are necessary to meet U.S. energy

consumption demand.

The American Petroleum Institute (“API”) is a

national trade association that represents all aspects

of America’s oil and natural gas industry. API’s

approximately 600 corporate members, from the

largest major oil companies to the smallest of

independents, come from all segments of the industry.

They are producers, refiners, suppliers, marketers,

pipeline operators, and marine transporters, as well

as service and supply companies that support the

industry.

The Association of Oil Pipe Lines (“AOPL”) is a

nonprofit national trade association that represents

the interests of oil pipeline owners and operators

before the United States Congress, regulatory

agencies, and the judiciary. AOPL’s members operate

pipelines that carry approximately 97% of the crude

oil and petroleum products moved by pipeline in the

United States, extending over 225,000 miles in total

length.

These pipelines safely, efficiently, and

reliably deliver more than 22 billion barrels of crude

oil and petroleum product each year, consistent with

safety regulations implemented by the Pipeline and

Hazardous

Materials

Safety

Administration

(“PHMSA”).

Founded in 1961, the National Association of

Convenience Stores (“NACS”) is a non-profit trade

association representing more than 1,900 retail and

1,800 supplier company members in the United States

and abroad. NACS is the pre-eminent representative

of the interests of convenience store operators. In

2019, the convenience and fuel retailing industry

3

employed approximately 2.46 million workers and

generated $647.8 billion in total sales, representing

approximately 3 percent of U.S. Gross Domestic

Product. Of those sales, approximately $395.9 billion

came from fuel sales alone.

The issues addressed in the Petition reach well

beyond this particular case. The decision here affects

the ability of Amici’s members, from a timing,

business, and cost perspective, to reliably construct

and operate new and replacement pipeline (or other)

energy-related projects. The unpredictable “convince

the court” standard applied by the D.C. Circuit could

thwart companies’ potential to secure necessary

project approvals and funding. It may also subject

them to untenable costs and risks, harming not only

Amici’s members, but also third-parties and

consumers that rely on the petroleum and other

energy products that are transported by pipelines

throughout the United States.

The fundamental question here is whether the

extensive environmental analyses set forth in an

agency’s Environmental Assessment (“EA”) should be

deemed insufficient, and an Environmental Impact

Statement (“EIS”) ordered, because a so-called

“controversy” has not been fully resolved to the

satisfaction of a reviewing court. Such “controversy”

may have no bearing on reasonably-foreseeable

environmental impacts, and may be manufactured by

commenters with the sole intent of stopping a pipeline

or other infrastructure project through delay or

otherwise. Pipelines are critical to our nation’s energy

security and provide products vital to the public and

consumers.

The safety of pipelines, including

4

measures to prevent spills, are extensively and

exhaustively regulated by PHMSA. Yet, the D.C.

Circuit’s decision can be wielded as a weapon to stop

pipeline and any major energy or other infrastructure

projects in their tracks. Because the consequences are

so far reaching through the industry and this nation,

this Court should grant the Petition to review the

judgment below.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici Curiae the AFPM, API, AOPL, and NACS

(together, the “Amici”), representing the interests of

pipelines, petroleum product manufacturers/refiners,

retailers, and other companies participating in all

sectors of the economy, submit this Amicus Brief in

support of Petitioner, Dakota Access, LLC (“Dakota

Access”).

Amici agree that this Court should grant the

Petition to address important questions of NEPA law

that the D.C. Circuit erroneously decided, to resolve a

conflict of law among the lower courts, and to

harmonize a body of NEPA law that lower courts have

struggled to consistently apply. The decision below is

manifestly wrong on a legal issue of substantial public

importance. The U.S. Army Corps of Engineers

(“Corps”), the expert agency charged by Congress to

evaluate the environmental impacts resulting from

the construction and operation of the Dakota Access

Pipeline (“DAPL”), reasonably concluded, based on a

full assessment of impacts in its initial and

supplemental EAs, that DAPL’s construction and

operation will not result in significant environmental

impacts sufficient to warrant the preparation of an

5

EIS. Yet, instead of deferring to the agency’s factfinding, the DC Circuit broke with at least six other

Circuit Courts by imposing a heightened standard,

requiring that the Corps resolve so-called

“controversy” to the court’s satisfaction.

This

“convince the court” standard contradicts this Court’s

precedents under which courts apply an “arbitrary

and capricious” standard to determine whether an

agency took a “hard look” at potential impacts,

deferring to the informed discretion of the agency

regarding whether impacts may be significant.

Further, in failing here to accord appropriate

deference to the Corps, the D.C. Circuit erroneously

elevated to dispositive status one of the ten intensity

factors used to determine whether an EIS is necessary

when it found that the presence of controversy alone

is sufficient to warrant an EIS.

The issues here are also important to the industry.

The decision will cause considerable uncertainty with

respect to the ability of Amici’s members to pursue,

finance, and timely and successfully complete new

and replacement pipeline (or other) projects. The

holding below invites uncertainty over when a NEPA

review may be deemed to be complete and whether a

project that is fully-constructed and has already been

subjected to years of environmental review can

lawfully continue to operate. Importantly, for all

pipeline environmental reviews, the so-called

“controversy” regarding spill risk is un-controversially

answered and governed by the Pipeline Safety Act, 49

U.S.C. §§ 60101, et seq., and the regulations

implementing that statute administered by PHMSA,

the expert federal agency on pipeline safety. A more

searching environmental review will not change the

6

regulatory framework in which pipelines safely

operate on a daily basis to prevent spills; it will only

add pointless delay.

This Court should grant certiorari.

ARGUMENT

I.

THIS COURT SHOULD REVIEW THE D.C.

CIRCUIT’S HEIGHTENED NEPA STANDARD

In determining whether a federal action will

“significantly affec[t]” the “human environment”—

thereby potentially triggering an EIS under NEPA, 42

U.S.C. § 4332(C)—agencies must consider ten

“intensity” factors.” 40 C.F.R. § 1508.27. In this case,

the D.C. Circuit Court of Appeals required an EIS

based on just one of those intensity factors—whether

the action’s environmental effects “are likely to be

highly controversial,” id. § 1508.27(b)(4)—because the

court was not “convinced” that the Corps successfully

resolved the project opponents’ critiques.

The D.C. Circuit’s approach conflicts with

established precedent of this Court and multiple

circuits on two fundamental points:

•

First, the D.C. Circuit judged the

Corps’ conclusions not under the

“arbitrary and capricious” standard,

but instead by whether the Corps had

succeeded in “convincing” the court

that the agency had resolved the

points of controversy.

•

Second, the D.C. Circuit held that an

EIS was required because the court

found that the effects of the action

7

were “highly controversial,” even

though the degree of controversy is

only one of ten factors to make a

finding

of

significance.

By

transforming this factor from one of

many the agency considers into a

dispositive factor that the court

decides, the court usurped the

responsibility assigned to the Corps

under NEPA.

As noted in the Petition, the D.C. Circuit’s

heightened standard and its application of the highly

controversial factor has created a split with at least

six other circuits. Petition at 25-27. The D.C.

Circuit’s decision imposes a heightened standard that

will be challenging for agencies to meet as they assess

vital infrastructure projects like pipelines. This

standard will make the D.C. Circuit the “go to” court

for project opponents who will use the Circuit’s less

deferential standard to force agencies into preparing

time-consuming EISs based only on opponents’ ability

to articulate continued “controversy” around the

project at issue.

A.

The D.C. Circuit’s Requirement that the

Corps Must “Convince the Court”

Conflicts with Precedent of this Court

and Other Circuits

1. The D.C. Circuit held that the operative

standard in this case was whether the Corps had

“convinced the court” that the agency had “resolved”

the objections to its NEPA analysis. App. 15a-16a.

Requiring an agency to “convinc[e] the court” conflicts

with the deferential review this Court requires.

8

Under Marsh and its progeny, “as long as the Corps’

decision [whether to prepare an EIS] was not

‘arbitrary and capricious,’ it should not be set aside.”

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

360, 375-78 (1989). It is well-established that under

the arbitrary and capricious standard, a court is

barred 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).

Yet that is exactly what occurred in this case – the

D.C. Circuit “delve[d] into the details” of the technical

pipeline safety issues raised by the opponents to

decide for itself whether those issues “presented an

unresolved controversy” and required an EIS. App.

16a. By failing to apply the “arbitrary and capricious”

standard, the D.C. Circuit “substituted its judgment”

for that of the Corps, violating basic tenets of

administrative law and creating a split with other

circuits.

The court’s limited role under NEPA “is to insure

that the agency has taken a ‘hard look’ at

environmental consequences.” Kleppe v. Sierra Club,

427 U.S. 390, 410 n.21 (1976). Under the APA’s

“arbitrary and capricious” standard, when “specialists

express conflicting views, an agency must have

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.” Marsh,

490 U.S. at 378. Yet now the D.C. Circuit has set that

limited role aside, instead requiring the Corps to

“convince[] the court” it has not only addressed, but

also has “resolved,” all material objections. App. 15a16a.

9

2. There is no requirement to “convince” the court

under this Court’s precedent or that of other circuits.

Indeed, as set forth in the Petition, the D.C. Circuit’s

requirement creates a serious split with other circuits.

See, e.g., Ind. Forest All., Inc. v. U.S. Forest Serv., 325

F.3d 851, 857, 860-61 (7th Cir. 2003) (recognizing that

the “highly controversial” intensity factor calls for the

limited “hard look” review); Hillsdale Envtl. Loss

Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d

1156, 1182 (10th Cir. 2012) (“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); Save Our Cumberland Mountains v.

Kempthorne, 453 F.3d 334, 339 (6th Cir. 2006)

(Sutton, J.) (courts will not “‘substitute [their]

judgment . . . for the judgment of the agency.”). The

D.C. Circuit’s requirement that the Corps “convince

the court” it has resolved all Plaintiffs’ critiques

conflicts with these decisions, as well as this Court’s

direction that the deferential arbitrary and capricious

standard applies. See Dep’t of Transp. v. Public

Citizen, 541 U.S. 752, 763 (2004).

The problem with the D.C. Circuit’s heightened

standard is clear from the opinion below, as the nondeferential standard led the court “to delve into the

details” of the technical pipeline safety issues raised

by Plaintiffs and decide for itself whether those issues

“presented an unresolved controversy” and required

an EIS. App. 16a.

10

B.

The D.C. Circuit Erred in Ordering the

Corps to Prepare an EIS Based on the

Court’s Finding of Controversy

1. This Court has held that agencies, rather than

courts, must determine whether to prepare an EIS.

Public Citizen, 541 U.S. at 767. Courts, in turn, must

“defer to ‘the informed discretion of the responsible

federal agencies’” on whether to prepare an EIS, so

long as the agencies “‘consider[ed] . . . the relevant

factors’” and did not commit “‘a clear error of

judgment.’” Marsh, 490 U.S. at 377-78. The degree of

controversy is one of ten factors that agencies weigh,

in context, to determine whether the effects of their

actions are “significant.” 40 C.F.R. §§ 1508.27(b)(1)–

(10). The D.C. Circuit replaced this established

framework with a new standard: under the D.C.

Circuit’s rendering, a court’s finding on a single

intensity factor can require an EIS.

The D.C. Circuit’s approach conflicts with that of

other circuits, which instead have held that the

controversy factor by itself is not determinative. As

noted in the Petition, the D.C. Circuit’s application of

the highly controversial factor has created a split with

at least six other circuits. Petition at 25-27. See Town

of Marshfield v. FAA, 552 F.3d 1, 5 (1st Cir. 2008)

(“[C]ontroversy is not decisive but is merely to be

weighed in deciding what documents to prepare.”);

Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d

168, 184 (3d Cir. 2000) (similar); McGuinness v. U.S.

Forest Serv., 741 F. App’x 915, 927 (4th Cir. 2018)

(similar); Hillsdale Envtl. Loss Prevention, Inc., 702

F.3d at 1181 (even when “a project is controversial,”

that “does not mean the Corps must prepare an

11

EIS”);Coliseum Square Ass’n, Inc. v. Jackson, 465

F.3d 215, 233-34 (5th Cir. 2006) (intensity factors are

not “categorical rules that determine by themselves

whether an impact is significant”);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.”).

Even assuming the record contains evidence

“supporting a different scientific opinion[, that] does

not render the agency’s decision arbitrary and

capricious.” Wetlands Action Network v. U.S. Army

Corps of Engineers, 222 F.3d 1105, 1120-21 (9th Cir.

2000). Instead, if there is “a substantial dispute

concerning the specific environmental effects of the

action,” the agency must “come forward with a ‘wellreasoned explanation’ demonstrating why” the effects

of its action are not “highly controversial.” Ind. Forest

All., Inc., 325 F.3d at 857-858. This is especially true

where, as here, the issues raised by Plaintiffs “require

a high level of technical expertise.” Marsh, 490 U.S.

at 374, 377-78.

2. The D.C. Circuit failed to apply this standard.

By requiring the Corps not only to respond to

Plaintiffs’ objections, but also to “convince the court”

the Corps has “successfully resolved” them, the court

imposed on the agency a more burdensome standard

of its own creation. The court crafted this standard

largely based on Nat’l Parks Conservation Ass’n v.

Semonite, 916 F.3d 1075 (D.C. Cir. 2019), in which the

court opined that the “question is not whether the

Corps attempted to resolve the controversy, but

whether it succeeded.” Id. at 1085-86. But what the

Corps had to do to “succeed” in “resolving the

12

controversy” was to assess the issues and explain

whether they raised a level of controversy that

triggered an EIS. Unlike in Semonite, the Corps in

this case fully considered the issues raised by

Plaintiffs and explained why the effects of its action

were not “highly controversial.” In addition, the low

probability of an oil spill or release was a critical factor

here that was not present in Semonite, where the

aesthetic impacts of the project were undisputed. The

D.C. Circuit’s decision thus undermines the statutory

standard by requiring an EIS even though the Corps

found that the effects purportedly generating

controversy are too unlikely to be “significant.”

This is a critical point. Anyone can spin disaster

scenarios to drum up “controversy” regarding a project

or agency action. But such scenarios do not trigger

additional NEPA analysis if they are highly

improbable. This is a core tenet of NEPA’s “rule of

reason.” Public Citizen, 541 U.S. at 763. Otherwise,

every NEPA review would devolve into extensive

modeling of unlikely scenarios that yield little

practical information to aid the agency decisionmaking process. In this case the Corps’ expert

analysis on the highly technical issues of pipeline

safety found the spill risks raised by Plaintiffs were

too unlikely to trigger an EIS. See, e.g., Standing Rock

Sioux Tribe v. U.S. Army Corps of Eng’rs, 282 F. Supp.

3d 91, 101, 105 (D.D.C. 2017) (referencing “low”

likelihood and “minimal risk” of oil spill under Lake

Oahe). The court erred, and created a conflict with

other circuits, by dismissing the Corps’ analysis and

making its own finding of significance.

13

3. Finally, even if the D.C. Circuit were correct

and the effects of the Corps’ action are “highly

controversial,” that does not necessarily mean an EIS

is required. Controversy is only one of ten factors that

agencies must consider when deciding whether to

prepare an EIS. 40 C.F.R. § 1508.27(b)(4). “The

presence of one factor does not necessarily [trigger an

EIS].” Wild Wilderness v. Allen, 871 F.3d 719, 729

(9th Cir. 2017). Thus, “if a project is controversial,

this does not mean the Corps must prepare an EIS,

although it would weigh in favor of an EIS.” Hillsdale,

702 F.3d at 1181; see also 51 Fed. Reg. 15,618, 15,622

(Apr. 25, 1986) (“controversy does not, alone, require

preparation of an EIS; rather, it is one of many factors

which the responsible official must bear in mind”).

The NEPA regulations assign the consideration of

these factors to the agency. Once the D.C. Circuit

found that the Corps had failed to adequately explain

why this factor did not trigger an EIS, the D.C. Circuit

should have remanded the case to the Corps to allow

the agency to make a new finding in light of the court’s

decision. The D.C. Circuit erred in short-circuiting

that process and ordering the Corps to prepare an

EIS.

II.

THE QUESTIONS PRESENTED IN THIS CASE ARE

EXCEPTIONALLY IMPORTANT FOR INDUSTRY

Certiorari is further warranted because this case

has significant and long-term ramifications for Amici

and their members.

1. The D.C. Circuit’s decision harms the ability of

Amici’s members to pursue new or replacement

pipeline (or other energy) projects and threatens the

operation of approved, fully-constructed projects. A

14

primary impediment to advancing projects is the

delay, uncertainty, and increased costs resulting from

the time necessary to obtain permits for project

construction.

This uncertainty and risk is

compounded by the D.C. Circuit’s holding that the

federal approval for a fully-constructed and

operational project can be vacated, at a much later

date, if additional environmental review is ordered by

a court.

2. In an attempt to provide some certainty under

NEPA for project proponents, “Presidents have issued

directives, and Congress has enacted legislation to

reduce delays and expedite the implementation of

NEPA and the CEQ regulations, including for

transportation, water, and other types of

infrastructure projects.” 85 Fed. Reg. 43,304, 43,305

(July 16, 2020). Yet, “[d]espite these efforts, the

NEPA process continues to slow or prevent the

development of important infrastructure and other

projects that require Federal permits or approvals, as

well as rulemakings and other proposed actions.” Id.

The holding below exacerbates this problem. Namely,

should the “convince the court” standard remain,

requiring an EIS will become the failsafe option,

resulting

in

significant,

and

perhaps

unsurmountable, project delay.

3. NEPA provides that a federal agency may

prepare an EA to document the environmental

impacts resulting from a proposed project. If, in that

EA, the agency reasonably concludes “that the action’s

effects would not be significant, the agency documents

its reasoning in a FONSI, which completes the NEPA

process.” 85 Fed. Reg. at 43,323. In satisfaction of

15

their

NEPA

obligations,

the

Council

on

Environmental Quality (“CEQ”) estimates that, in

2015, federal agencies prepared 11,353 EAs, as

compared to only 261 EISs.2

The D.C. Circuit’s decision (ordering an EIS based

on a “convince the court” standard) will result in

agencies having to prepare more EISs than have

historically been required, substantially extending

the environmental review period. CEQ estimates that

“across all Federal agencies, the average (i.e., mean)

EIS completion time (from NOI to ROD) was 4.5

years.”3

CEQ calculates that the average EIS

completion time for the Corps is even longer, taking

on average 6.04 years to complete. Id. If an agency

must prepare an EA, and despite that EA being

acceptable to the federal agency, a reviewing court

then orders the agency to prepare an EIS to resolve

“controversy” to its satisfaction, this could lead to

years of delay.

Over

that

time

period,

Presidential

administrations and agency heads could change with

dissonant views towards pipelines and fossil fuels,

2 Council on Environmental Quality, The Fourth Report

on Cooperating Agencies in Implementing the Procedural

Requirements of the National Environmental Policy Act,

Attachment A (Oct. 4, 2016), https://ceq.doe.gov/docs/ceqreports/Attachment-A-Fourth-Cooperating-AgencyReport_Oct2016.pdf at 1.

3 See Council on Environmental Quality, Environmental

Impact Statement Timelines (2010-2018) (June 12, 2020),

https://ceq.doe.gov/docs/nepapractice/CEQ_EIS_Timeline_Report_2020-6-12.pdf.

16

further compounding uncertainty relative to the

successful completion of a pipeline project. This

increased political risk is real and harms Amici’s

members, as illustrated by President Biden’s aboutface to revoke the Presidential Permit for the

Keystone XL Pipeline that was previously granted by

President Trump.4

4. To ensure the ability to fund, construct, and

operate a pipeline project with any degree of certainty,

there must be a reasonable finishing line under

NEPA; fully resolving “controversy” to the satisfaction

of the reviewing court is not it. The standard imposed

by the D.C. Circuit gives traction to any so-called

“controversy,” irrespective of whether it materially or

accurately calls into question the significance of

impacts resulting from a proposed activity.

This is illustrated by the “controversy” that the

court below found to be unresolved so as to warrant

preparation of an EIS. For example, the spill risk here

was undisputedly “extremely low” given “the

engineering

design,

proposed

installation

methodology, quality of material selected, operations

measures and response plans.” Petition at 7. Yet, the

court below found that the Corps failed to fully resolve

controversy with respect to environmental impacts

and response preparedness resulting from this highlyremote possibility of release.

Further, the significance (or lack thereof) of

impacts resulting from any pipeline release is

4 See Exec. Order No. 13,990, 86 Fed. Reg. 7,037 (Jan. 25,

2021).

17

necessarily constrained by the highly-regulated

setting in which pipelines like DAPL are constructed

and operate. Specifically, the Pipeline Safety Act, 49

U.S.C. §§ 60101, et seq., and Clean Water Act, along

with regulations implementing these statutes at 49

C.F.R. Parts 194-195, govern every aspect of the leak

detection/spill issues that the court found to be

unresolved.

See, e.g., 49 C.F.R. § 195.452

(establishing comprehensive integrity management

requirements, including that “[a]n operator must have

a means to detect leaks on its pipeline system.”); 49

C.F.R. § 195.452(i)(3) (requiring an operator to have a

leak detection system and provides that “[a]n

operator’s evaluation [of the capability of its leak

detection system] must, at least, consider . . . leak

history,” among other factors); 33 U.S.C. §§

1321(j)(5)(D)(iii)-(iv) (requiring operators to have an

approved emergency response plan in place to ensure

the removal, to the maximum extent practicable, of

the largest foreseeable discharge in adverse weather

conditions, and to mitigate or prevent a substantial

threat of the largest foreseeable discharge in adverse

weather conditions.); 49 C.F.R. § 194.105

(establishing the precise methodology for calculating

the worst-case discharge for a pipeline, which is based

on the largest volume that could be released between

valve-to-valve segments). Such safety standards are

precisely designed to provide “adequate protection

against risks to life and property posed by pipeline

transportation.” 49 U.S.C. § 60102(a)(1).

The Corps reasonably relied on PHMSA’s

regulations in its EA to conclude that operational

impacts from DAPL would not be significant. Yet,

18

notwithstanding

PHMSA’s

extensive

safety

regulations and well-established framework under

which all interstate liquid pipeline operators assess,

prevent and respond to releases from their pipelines,

the court below ordered an EIS to further study spill

risk impacts for the DAPL pipeline. This is despite

the fact that the District Court below expressly

acknowledged that “[o]ther courts, including this

Circuit, have favorably viewed similar agency reliance

on applicable regulatory standards when assessing

impacts as part of a NEPA-required analysis.”

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

Eng’rs, 255 F. Supp. 3d 101, 126 (D.D.C. 2017) (citing

EarthReports, Inc. v. FERC, 828 F.3d 949, 957 (D.C.

Cir. 2016)) (holding agency fulfilled its NEPA

obligations to evaluate ballast-water impacts by, inter

alia, noting requirements of applicable regulatory

agencies)); Sierra Club v. Clinton, 746 F. Supp.2d

1025, 1047 (D. Minn. 2010) (holding agency properly

considered impacts of pipeline abandonment by

referencing PHMSA regulations).

5. Beyond the implications for the DAPL project,

the D.C. Circuit’s decision creates a clear roadmap for

future pipeline opponents to generate “controversy” in

an effort to prevent or delay a new or replacement

pipeline or other energy infrastructure or disrupt

their operation post-construction. Opponents need

only identify an alternative way, regardless of how

reasonable, accurate, or nuanced, to perform a

calculation to ensure that a reviewing court will find

their so-called “controversy” to not be fully resolved.

Where an agency implements NEPA as extensively as

the Corps did here, a reviewing court should not be

revisiting each and every calculation, methodology, or

19

piece of data raised in comments by a pipeline

opponent. This is particularly true here, where

PHMSA regulations provide a reasonable basis on

which to conclude spill-related impacts from a

pipeline will not be significant. In fact, DAPL will in

all cases be subject to extensive regulations designed

to reduce spill risk.

Leak detection and leak

sensitivity are highly-technical issues within the

purview of PHMSA. Prolonging the NEPA process in

this setting based on comments from entities that

possess no technical knowledge of pipeline leak

detection or prevention will not yield a safer pipeline.

It will only yield pointless delay.

If those commenters have concerns about the

safety of a pipeline, including spill risk, there are

established processes under PHMSA regulations for

prompting an investigation or initiating a private

action to force an operator to come into compliance

with applicable PHMSA requirements.5 Also, if

PHMSA believes that there is any risk of release, the

Agency would be required to take action pursuant to

its extensive injunctive authority under the Pipeline

Safety Act. Demanding an EIS to study these risks

will not change the bottom line that PHMSA

regulation effectively reduces spill risks to a level far

below that of significant impacts that might justify an

EIS.

6. If the D.C. Circuit’s decision were to stand,

Amici’s members will suffer harm in the form of

increased costs and project-completion risks. Such

costs and risks become heightened where the

5 See, e.g., 49 U.S.C. § 60121(a).

20

“convince the court” standard will frequently result in

the need for a lengthy and uncertain EIS process.

Pipeline projects take years of planning and cost

hundreds of millions to billions of dollars to complete.

Pipeline companies must typically finance project

costs through one or more credit facilities or loans that

are secured through private banks; or by issuing

bonds sold to investors. Such credit facilities, loans,

and bonds are critical to provide pipeline companies

with sufficient liquidity to fund the project during

project design, construction, and operation. From

underwriting to lending, a new pipeline project would

not happen without the support of the private sector.

But, in order for a bank to provide funding, banks

must first have a reasonable assurance that a

proposed pipeline project will be completed in a

predictable timeframe, and once completed, the

pipeline will be allowed to continue its operation even

if further environmental review is required.

The holding below has caused and will continue to

cause doubt to ripple throughout the banking and

investment community about the viability of new

pipeline projects. Financing simply does not exist – or

at least does not exist on commercially reasonable

terms – for a pipeline project that may never be

started due to never-ending environmental review.

Importantly, this impacts not only Amici members’

ability to fund new projects like DAPL, but also

replacements of, or upgrades to, existing critical

pipeline infrastructure, the continued need for which

has been firmly demonstrated. Even assuming that

funding can be secured for a project, the holding below

will also subject project proponents to heightened risk

21

and potentially uncapped costs if – as a result of the

“convince the court” standard – an agency’s permit

can be vacated and the pipeline’s operations delayed

pending lengthy additional reviews. These uncertain

and added costs come at the expense of Amici’s

members without any meaningful benefit in terms of

environmental review.

7. This uncertainty is not only detrimental to

Amici and their members, but also third-parties,

consumers, and the nation as a whole. As PHMSA has

stated:

The arteries of the Nation’s energy

infrastructure, as well as one of the safest

and least costly ways to transport energy

products, our oil and gas pipelines provide

the resources needed for national defense,

heat and cool our homes, generate power for

business and fuel an unparalleled

transportation system. . . . The nation's more

than 2.6 million miles of pipelines safely

deliver trillions of cubic feet of natural gas

and hundreds of billions of ton/miles of

liquid petroleum products each year. They

are essential: the volumes of energy products

they move are well beyond the capacity of

other forms of transportation. . . . Pipeline

systems are the safest means to move these

products.6

Vacatur of an agency’s approval(s) and ordering an

operating pipeline to cease on the basis of a “convince

6 https://www.phmsa.dot.gov/faqs/general-pipeline-faqs.

22

the court standard” would have serious adverse

economic consequences.

Pipelines like DAPL

typically transport a significant percentage of regional

petroleum supplies to specific refiners. Abruptly

cutting off the supply of petroleum products

transported by pipelines once their operations have

begun

causes

immediate,

and

sometimes

irreplaceable, shortages. Refineries may be required

to reduce production, lay-off employees, and/or close if

volumes cannot be secured through alternative means

of transportation.

Alternatives to an operating

pipeline, however, may not be available, or may not be

available

without

significant

infrastructure

development and investment, which may take years.

If a pipeline is shut down, the economic principle

of supply and demand points to increased costs up and

down the supply chain. Also, if a pipeline is not

operating, producers may be required to shut in wells

if there is a lack of available transportation. As a

result, a shutdown of a pipeline and shutting in

production could lead to lost tax revenue for the

states, counties, and local communities, with such tax

revenue typically being significant, amounting to tens

or hundreds of millions of dollars (inclusive of taxes

on production).

These consequences lead to economic disruption

throughout the supply chain, potentially amounting

to business closures and higher unemployment, while

eroding our nation’s energy security and

independence. All because, under the “convince the

court” standard, a reviewing court has determined

that an EIS is needed to resolve “controversy”

generated by commenters regarding the highly

23

remote possibility of a release from a newlyconstructed pipeline.

8. For the foregoing reasons, Amici agree with

the Petition that this Court should intervene to

eliminate this uncertainty created by the D.C.

Circuit’s departure from this Court’s standard of

review.

24

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition.

Respectfully submitted,

DAVID H. COBURN

Counsel of Record

JOSHUA H. RUNYAN

CYNTHIA L. TAUB

STEPTOE & JOHNSON LLP

1330 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 429-3000

dcoburn@steptoe.com

Counsel for Amicus Curiae

November 17, 2021