Dakota Access Pipeline foes win a court victory, but its significance is far from clear

The Standing Rock and Cheyenne River tribes have won a round in court for a change  — a  judge’s finding that the U.S. Army Corps of Engineers was deficient in its environmental review before giving the Dakota Access Pipeline’s owners a permit to pump oil beneath Lake Oahe, as they have been doing since June 1.

I suppose it is possible that this may prove to be the “major victory” for pipeline challengers that Dave Archambault, the Standing Rock tribal chairman, is proclaiming. Conceivably history may see it as the “important turning point” that the tribes’ lawyer, Jan Hasselman of Earthjustice, is asserting.

We’ll know more about that next week, after the litigants meet with U.S. District Judge James Boasberg in Washington to discuss next steps, which conceivably could include lifting the permit and shutting off the oil flow.

But, people, don’t get your hopes up.

I will admit I let mine rise a bit after seeing Boasberg’s ruling described as a “stunning decision” by Ellen Gilmer of E&E News, who has been covering DAPL with distinction for a long time and does not impress me as one who is easily stunned.

Then I read Boasberg’s 91-page document, which in general has a tone of weary acknowledgement that Corps did not, in fact, get every last nitpicky detail right in a process that many others  — including senior officials of the Corps and the Department of the Interior  — have acknowledged was consistently and substantially flawed.

Here’s a representative sample (citations omitted):

The Tribes have since mounted two substantial legal challenges to DAPL, neither of which yielded success. The first contended that the grading and clearing of land for the pipeline threatened sites of cultural and historical significance, and that the U.S. Army Corps of  Engineers had flouted its duty to engage in tribal consultations pursuant to the National Historic Preservation Act. The second maintained that the presence of oil in the  pipeline under Lake Oahe would desecrate sacred waters and make it impossible for the Tribes to freely exercise their religious beliefs, thus violating the Religious Freedom Restoration Act.

Now that the Court has rejected these two lines of attack, Standing Rock and Cheyenne River here take their third shot, this time zeroing in DAPL’s environmental impact…. In particular, the Tribes believe that the Corps did not sufficiently consider the pipeline’s environmental effects before granting permits to Dakota Access to construct and operate DAPL under Lake Oahe, a federally regulated waterway. This volley meets with some degree of success. Although the Corps substantially complied with  NEPA in many areas, the Court agrees that it did not adequately 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.

Early reports miss mark

Boasberg’s ruling became public early Wednesday evening and it’s possible that timing accounts for some fairly loose characterization of its contents in the initial news accounts.

In empathy for reporters who had to digest the document more hurriedly than yours truly, I’ll not link here to the stories stating that Boasberg was ordering the Corps to undertake a new environmental review of DAPL, or that its decision to grant the Oahe crossing permit “violated the law,” or even that the Trump administration acted illegally in its peremptory reversal of the Obama White House’s decision to pause and undertake a better evaluation of the tribes’ objections.

Rather than a do-over of its deficient review of impacts on hunting and fishing rights and environmental justice, Boasberg concludes only that “the Corps will have to reconsider those sections of its environmental analysis” (emphasis added).

As for the argument that the Trump administration’s reversal was improper, Boasberg writes  — and the tone here strikes me as notable  — “As we all know, elections have consequences, and the government’s position on the easement shifted significantly once President Trump assumed office.”

Here’s how he puts the central question:

Because the Corps “failed to address, let alone provide a reasoned explanation for, abandoning the determinations undergirding its December 4 decision to require an [Environmental Impact Statement],” the Tribe contends, its action was arbitrary and capricious.

The legal arguments over that, and Boasberg’s analysis of them, involve a fairly intricate discussion of what’s required under the Administrative Policy Act, as interpreted by the courts. But Boasberg’s conclusion is plain: “The Corps did enough to satisfy the APA’s requirements regarding policy reversals.”

As for the redress he might possibly order, Boasberg notes that the “standard remedy” under the National Environmental Policy Act is that a court “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” …

In other words, the Court would vacate DAPL’s permits and easement, thus forcing it to cease operations until the Corps fully complied with the aforementioned NEPA requirements. 

Such a move, of course, would carry serious consequences that a court should not lightly impose. In fact, courts have discretion to depart from that presumptive remedy and decide not to vacate ….

[T]he Court will order the litigants to submit briefing on whether [vacating the approval actions]  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.

Big lift for Corps, or not?

That’s what will be discussed in the meetings Boasberg has convened for next week  — and in at least one informed viewpoint, the Corps’ burden of correcting its deficiencies may not be especially heavy. Speaking to E&E’s Gilmer, analyst Christi Tezak of ClearView Energy Partners offered this assessment:

We think that the Corps may be able to persuade the court to allow Dakota Access to continue operating while the omissions are addressed and the court reviews them for adequacy. We base this view on our expectation that the Corps will argue at the upcoming status conference that it has the information required to address the omissions in the [environmental assessment], and that it can provide the missing analysis….

Ultimately, it seems to me, the practical upshot of Boasberg’s ruling may be that the Corps gets another shot at repairing its record of decision-making on DAPL before heading, inevitably, to the appeals courts.

You can read his ruling here [PDF].