Army Corp of Engineers defends Dakota Access permitting in appeals court

A federal judge misapplied environmental law, misread a court precedent, and invented his own impractical legal standards when he ordered more study of the Dakota Access Pipeline and vacated a permit for the line, according to the US Army Corps of Engineers.

The Corps of Engineers filed a brief Aug. 26 in the US Court of Appeals for the District of Columbia Circuit to argue a district court’s judgment should be overturned.

The district court in March ordered an extensive additional study in the form of an environmental impact statement (EIS). Then in July the court vacated an easement allowing the crude oil pipeline to pass under the Missouri River at Lake Oahe and ordered a shutdown of the line. The appellate court stayed the shutdown order (OGJ Online, Aug. 6, 2020).

The case, Standing Rock Sioux Tribe v. US Army Corp of Engineers, centers on interpretation of the National Environmental Policy Act (NEPA). The act provides that if an agency conducts an environmental assessment of a proposed action and concludes it could have a significant environmental impact, a lengthier EIS must be developed.

The Corps concluded there would not be a significant impact from the easement for the river crossing, so it did not develop an EIS. Significance is determined by many factors, including whether the action is “highly controversial” not in terms of loud opposition but in terms of technical details.

Horizontal drilling was used to allow the pipeline to pass 92 ft beneath the river at Lake Oahe in North Dakota. It began operation in spring of 2017.

A new standard alleged

Judge James Boasberg of the district court ruled the Corps’ granting of the easement was highly controversial because of the consistent and strenuous opposition of the plaintiffs’ experts, the Corps told the appellate court. Such a ruling renders the environmental assessment process meaningless, the Corps said.

Boasberg misread a 2019 decision by the DC Circuit to mean that an agency must succeed in resolving a disagreement, no matter how unrelentingly the plaintiffs disagree, the Corps said.

That misreading of the precedent resulted in the judge creating “a new, heightened standard of judicial review that will be impossible for agencies to meet,” the Corps said.

The Corps said it had done a clear, detailed, adequate job of explaining to the plaintiffs why their concerns about the pipeline were excessive, and those explanations in combination with the environmental assessment allowed the agency, under NEPA, to conclude an EIS was not needed.

By wholly ignoring the Corps’ reasoning on the question of an EIS, the judge “violated basic principles of administrative law,” the Corps said.

Calculations of difficulties

The plaintiffs also argued that the Corps should provide a “quantitative evaluation” of the difficulties that might be involved in responding to an oil spill amid winter ice. Boasberg agreed and held that the Corps needed to develop a quantitative model that predicts “how exactly winter conditions would delay response efforts,” as the Corps explained it to the appellate court.

“That, too, is error: NEPA does not require the Corps to develop new science or to predict the future with perfect accuracy,” the Corps said. The agency explained that no one has identified any way to calculate exactly how much more difficult a winter spill response will be.

Energy Transfer LP operates the line through its unit Dakota Access LLC. The line carries 570,000 b/d of crude oil more than 1,000 miles from North Dakota to a pipeline hub at Patoka, Ill. Connections there take the oil as far as the Gulf Coast.

The plaintiffs led by the Standing Rock Sioux have until Sept. 16 to file a brief defending the district court’s decisions.