Attorney: Dakota Access Pipeline legal issues aren’t over

By Staff | October 12, 2017

U.S. District Judge James Boasberg ruled last week that oil could continue flowing through the Dakota Access Pipeline (DAPL) while the Army Corps of Engineers completes work on an environmental review it expects to finish next spring.

While the ruling is considered a victory for DAPL, which carries half of North Dakota’s crude production to a hub in Patoka, Illinois, the legal issues surrounding the 1,172-mile-long, $3.8 billion pipeline aren’t over, according to Troy A. Eid, a former U.S. attorney who’s now with Greenberg Traurig LLP in Denver.

He told North American Shale Magazine that the Standing Rock and Cheyenne River Sioux tribes will continue to oppose Corps of Engineers actions and that Boasberg will continue to give serious consideration to the tribes’ arguments. The tribes are being represented by the environmental organization Earth Justice.

“This pipeline represents a threat to the livelihoods and health of our nation every day it is operational,” said Mike Faith, Standing Rock Sioux chairman, after Boasberg’s ruling. “From the very beginning of our lawsuit, what we have wanted is for the threat this pipeline poses to the people of Standing Rock Indian Reservation to be acknowledged. Today, our concerns have not been heard and the threat persists.”

Eid, who mediates high-profile disputes between energy companies and Indian tribes across the country, discussed the legal ramifications of Boasberg’s most recent decision and what it means for DAPL going forward.

What is the legal concept of vacatur and what laws and legal precedents guided Judge Boasberg's decision?

"Vacatur" is a legal remedy in which the prior decision of a governmental agency—in this case, the U.S. Army Corps of Engineers—is vacated or removed from the record, as if it never existed. Vacatur essentially means, "Throw it out and do it over."  In reviewing the Corps' compliance with the National Environmental Policy Act (NEPA), a federal procedural review statute, Judge Boasberg found that the Corps made several errors in assessing potential impacts of DAPL. However, the court also concluded that there is a "serious possibility" that the Corps will still be able to substantiate its prior decisions regardless of those particular errors. Consequently, Judge Boasberg "remanded" or handed back the matter to the Corps for additional review related to its decision rather than throwing out what the Corps had already done. The distinction is important because vacatur might have conceivably required the pipeline to shut down as the plaintiffs requested.

The judge’s opinion didn't seem kind to industry's data or legal arguments on the potential economic and environmental impacts of shutting down DAPL. What were your impressions? What message does this send to the oil and gas industry?

The court's ruling makes very clear that the Corps made significant errors in how it assessed environmental impacts related to the DAPL project. Recall that those errors related to the three deficiencies previously identified by the court: 1. The degree to which the project's effects on the quality of the human environment were "likely to be highly controversial"; 2. The impacts of an oil spill on fish and game protected by the tribes' treaty rights; and 3. Environmental-justice impacts of a spill.  NEPA requires agencies to make reasoned interpretations as to each, which the Corps failed to do here, according to the court. However, Judge Boasberg also noted that correcting such flaws does not require the Corps to start over, but rather to better articulate the reasoning for its decision-making.

Remember, NEPA is a procedural review statute only. The court was scrutinizing the Corps' process for making decisions, not the merits of those decisions.

Given that Judge Boasberg seemed sympathetic to the tribes' arguments, were you surprised that he decided vacatur wasn't the appropriate remedy?

It would be a mistake to read too much into Judge Boasberg's ruling, which was purely procedural. This is not to say that the tribes failed to advocate effectively. They surely did. They called out the Corps' mistakes in failing to consider these issues and the judge agreed.

Yet not following the procedural review process correctly isn't the same thing as saying the court liked or didn't like the merits of the tribes' arguments or, for that matter, the defendants' arguments. By definition, NEPA is just a procedural review statute. The statute doesn't allow courts to opine on the merits of the litigants' arguments.

It is still notable that the court is saying the Corps' review of the project was seriously flawed. That's important because the tribes have been insisting that the Corps didn't give them a meaningful opportunity to participate in the Corps' decision-making process. On these three issues, the court agreed.

While Judge Boasberg didn't vacate the Corps' decisions, he did demand that the Corps must give "serious consideration to the errors identified" now that he has remanded the ruling. By handing the matter back to the Corps, the judge said he "expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc." He also stressed that the parties will have another chance to argue about the sufficiency of the Corps' decision-making once its remand is completed.

Is the last real legal threat to the Dakota Access Pipeline gone? Is it possible Judge Boasberg might impose conditions on Energy Transfer Partners or the Corps while the Corps is completing its work? What might those be?

If the court were to find that the Corps cannot justify its decisions on those three particular issues, Judge Boasberg would indeed be in a position to fashion a remedy to address those concerns and/or to order the Corps to do so. Given the tribes' commitment to keep litigating, and the national scope of the controversy, it ain't over until it's over.

How likely is it that we'll see any additional legal developments before the Corps finishes its work, which the agency now says probably won't be done until April?

The risk of shutting down the oil flow was reduced greatly when the court found that NEPA was substantially complied with by the Corps and other federal agencies. For now, the expectation is that DAPL, which already transports half of North Dakota's daily crude oil production, will continue delivering product for the foreseeable future.