United States: Court Declines To Vacate Environmental Assessment Of Dakota Access Pipeline, Operations To Continue

The U.S. District Court for the District of Columbia declined to vacate the U.S. Army Corps of Engineers' ("Corps") Environmental Assessment ("EA") of the Dakota Access Pipeline while the Corps addresses, on remand, deficiencies in the EA identified in a June 14, 2017 ruling. In accordance with the decision, the pipeline will be able to continue to operate during remand.

As explained more fully in a Cadwalader memorandum, the decision not to vacate was reached based on consideration of two factors: (i) the seriousness of the EA's deficiencies, and the likelihood that the Corps could substantiate its prior conclusions on remand, and (ii) the disruptive consequences of vacating the EA. In the June ruling, the Court largely upheld the EA, but found that the agency failed to adequately address the (i) degree to which the project's effects are likely to be highly controversial, (ii) effects of an oil spill on fishing and game, and (iii) environmental justice impacts.

With respect to the seriousness of the EA's deficiencies, the Court concluded that it was substantially likely that the Corps would be able to justify its previous determinations on remand. According to the Court, the deficiencies that must be addressed by the Corps are not "fundamental flaws"; rather, there is a significant possibility that the prior conclusions will be upheld. As for "disruptive consequences," the Court said that this prong "weighed only narrowly" in favor of the defendants.

The memorandum was authored by Mark Haskell and Lamiya Rahman.

Commentary / Mark R. Haskell

Plaintiffs alternatively requested that the Court impose conditions on the continued operation of the pipeline in the event it declines to vacate the EA. The October 11 opinion does not decide this issue, but gives defendants the opportunity to submit further abbreviated briefing to address the plaintiffs' alternative request.

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