Environmental Law Problem

1. Issue? Identify the legal question that the case is trying to resolve. State the issue as a question. There is at least one legal issue in every case, and it should include a reference to a rule of law. The legal issue is different from a fact; for example, it is not enough to determine whether or not the defendant ran the red light (fact), but the court also must decide whether running the red light caused the accident (law).
2. Rule? This is a statement of the law. The rule does NOT contain information about this specific case. It is the rule that applies to ANY case of this kind, which the judge uses to decide this particular case.

STANDING ROCK SIOUX TRIBE, et al., v. U.S. ARMY CORPS OF ENGINEERS, et al. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 255 F. Supp. 3d 101, 147 (Dist. D.C. 2017). Note: Please brief this 2017 judicial opinion because it focuses on the environmental justice review under NEPA. At the end of this opinion, I have added an excerpt from the most recent decision in 2020 by Judge Boasberg so that you have the most recent developments in the case. You do not have to include that in your brief, but you may write about it in your opinion section. Opinion by: JAMES E. BOASBERG, United States District Judge I. Background A. NEPA The National Environmental Policy Act, the statute under which the majority of the Tribes' claims are brought, has two aims: it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action," and "it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." ... To determine whether an agency must prepare an EIS, it first drafts an Environmental Assessment. An EA is a "concise public document" that "[briefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." The EA must discuss the need for the proposal, the alternatives, the environmental impacts of the proposed action and alternatives, and the agencies and persons consulted. ... As will be explained below, the Corps here prepared an EA and a Mitigated FONSI. The central question this Opinion answers is whether that was sufficient. B. Factual History As those who have followed this litigation and the concomitant public debate well know, DAPL [Dakota Access Pipeline] is a nearly 1,200-mile pipeline designed to move more than half a million gallons of crude oil from North Dakota to Illinois every day. Although no government approval is necessary for oil pipelines traversing private lands, it is required for those segments that cross federally regulated waters. DAPL crosses such waterways at hundreds of discrete places along its route, including, most prominently, at Lake Oahe. Created by the Corps in 1958 via a dam constructed on the Missouri River, Lake Oahe is a reservoir that spans North and South Dakota and borders the Standing Rock and Cheyenne River Sioux Reservations to the east. ...Today, Standing Rock members rely on Lake Oahe's waters to service "homes, a hospital, clinics, schools, businesses and government buildings throughout the Reservation" and to support agriculture and industrial activities. The Lake is also the primary source of water for the Cheyenne River Reservation. ... Dakota Access notified the Corps of its intent to construct a portion of DAPL under Lake Oahe in June 2014. Specifically, the Company needed three authorizations from the Corps: (1) verification that its activities satisfied the terms and conditions of [Clean Water Act] Nationwide Permit 12; (2) permission under the Rivers and Harbors Act; and (3) a real-estate easement under the Mineral Leasing Act. In December 2015, the Corps published and sought public comment on a Draft Environmental Assessment that evaluated the environmental effects of DAPL's proposed crossing of Lake Oahe and concluded that "construction of the proposed Project [was] not expected to have any significant direct, indirect, or cumulative impacts on the environment." Standing Rock promptly submitted comments touching on a range of concerns, ...Other federal agencies also weighed in on the Draft EA. Like the Tribes, the Department of the Interior requested that the Corps prepare an Els, a step it believed necessary given DAPL's "potential impact on trust resources" ... The Environmental Protection Agency similarly expressed concern.... After "becoming] aware of the proximity" of DAPL to Standing Rock's Reservation, the EPA [ ] recommended that the Corps revise the Draft EA and provide a second public-comment period "to assess potential impacts to drinking water and the Standing Rock Sioux Tribe," as well as "additional concems regarding environmental justice and emergency response actions to spills/leaks." ...Finally, the EPA urged the Corps to expand its analysis for purposes of assessing environmental-justice considerations from "the area of construction disturbance" to "the impacts of the proposed project,"and to look at route alternatives On July 25, 2016, about eight months after releasing the Draft EA, the Corps published its Final EA and a Mitigated Finding of No Significant Impact (FONSI). The Final EA - like the Draft EA - was prepared by Dakota Access with involvement from the Corps, as is permitted [by CEQ regulations as long as the agency independently evaluates the information submitted, "make[s] its own evaluation of the environmental issues[,] and take[s] responsibility for the scope and content of the environmental assessment," including its accuracy.] The Mitigated FONSI explained that the Corps had "coordinated closely with Dakota Access to avoid, mitigate and minimize potential impacts of the Proposed Action" - largely via horizontal directional drilling (HDD) technology - and that the Company was required to comply with a set of mitigation measures set out in the EA.... C. Litigation 1. Filing of Suit [Two days after the release of the EA on July 25, 2016, Standing Rock filed this suit against the Corps for declaratory and injunctionelief pursuant to the National Historic Preservation Act, National Environmental Policy Act, Clean Water Act, and the Rivers and Harbors Act. Cheyenne River then filed its own Complaint.... On November 14, 2016, ... the Army... "concluded that its previous decisions comported with legal requirements." Nonetheless, in light of the United States' history with the Great Sioux Nation, ... "the Army determined that additional discussion with the Standing Rock Sioux Tribe and analysis [were] warranted." ... On December 4, ... Assistant Secretary Darcy issued a memorandum [explaining that] the Army would "not grant an easement to cross Lake Oahe at the proposed location based on the current record." ... Darcy emphasized, though, that her "policy decision" did "not alter the Army's position that the Corps' prior reviews and actions have comported with legal requirements." On January 18, 2017, Darcy followed up by publishing in the Federal Register a notice of intent to prepare an EIS.... 3. A New Administration As we all know, elections have consequences, and the government's position on the easement shifted significantly once President Trump assumed office on January 20, 2017. A Presidential Memorandum issued on January 24 directed the Secretary of the Army to instruct the Assistant Secretary of the Army for Civil Works and the Corps "to take all actions necessary and appropriate to ... review and approve ...requests for approvals to construct and operate the DAPL, including easements or rights-of-way" and to "consider, ...whether to rescind or modify" the December 4 memorandum and the Notice of Intent to Prepare an EIS. The Army completed a technical and legal review on February 3 and determined that the Final EA and FONSI "satisfied] the NEPA requirements for evaluating the easement required for the DAPL to cross Corps-managed federal lands at Lake Oahe" and "support[ed] a decision to grant an 2easement." ... The final easement contains 36 conditions intended to mitigate the risk of rupture at Lake Oahe and otherwise address the Tribe's concerns. .... Having finally been given the green light, Dakota Access, by late March, completed construction of this last segment beneath Lake Oahe and began placing oil in the pipeline. DAPL became fully operational on June 1, 2017. Ill. Analysis of Standing Rock's Claims Standing Rock seeks summary judgment on three claims: (1) The Corps' July 25, 2016, and February 8, 2017, conclusions that the Oahe crossing did not warrant an EIS violated NEPA because the agency did not make a convincing case that no significant impacts would result and failed to take a hard look at the project's effects on Treaty rights and environmental-justice considerations; (2) The Corps' February 8, 2017, decision to grant the easement was arbitrary, capricious, and contrary to law because the Corps reversed a prior policy without reasoned justification ...; and (3) The Corps wrongfully concluded on July 25, 2016, that the pipeline activities satisfied the terms and conditions of [Clean Water Act Nationwide Permit] 12 /discussion of claim 3 omitted by editor]. A. Decision Not to Prepare EIS In reviewing an agency's decision not to issue an EIS, the Court's role is a "limited' one, designed primarily to ensure 'that no arguably significant consequences have been ignored." An agency's decision to issue a FONSI and thus not to prepare an EIS will be overturned only "if the decision was arbitrary, capricious, or an abuse of discretion." ...[The Tribe argues that the Corps did not take a hard look at or make a convincing case that the Lake Oahe crossing will have no significant environmental impact, and that it did not sufficiently consider route alternatives or environmental-justice implications...Pursuant to NEPA's "hard look" requirement, the agency must ensure that "the adverse environmental effects of the proposed action are adequately identified and evaluated."... 3. Environmental Justice Standing Rock [ ] contends that the Corps' environmental-justice analysis was arbitrary and capricious. A 1994 Executive Order requires that, "[to the greatest extent practicable and permitted by law," federal agencies "shall make achieving environmental justice part of [their] mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations." Exec. Order 12,898. The Order expressly states that it does not create a private right to judicial review, but the D.C. Circuit has permitted challenges to environmental-justice analyses under NEPA and the APA. As the EA acknowledges, the Council on Environmental Quality developed guidance to assist federal agencies in ensuring that environmental-justice concerns "are effectively identified and addressed." That guidance instructs that agencies "should consider the composition of the affected area, to determine whether minority populations, low-income populations, or Indian tribes are present in the area affected by the proposed action, and if so whether there may be disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, or Indian tribes": "should recognize the interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects of the proposed agency action"; and should recognize that the impacts within ... Indian tribes may be different from impacts on the general population due to a community's distinct cultural practices.""Where environments of Indian tribes may be affected," CEQ advises, "agencies must consider pertinent treaty, statutory, or executive order rights and consult with tribal goverments in a manner consistent with the government-to-government relationship." Finally, the "unit of geographic analysis" for the environmental-justice assessment should "be chosen so as not to artificially dilute or inflate the affected minority population." 3Here, the Corps defined the unit of geographic analysis for its environmental-justice assessment as a 0.5-mile radius around the crossing, yielding a focus on the two census tracts in which the HDD boreholes would be drilled - i.e., the places on either side of Lake Oahe at which the pipeline would enter the ground to pass under the water. Those two census tracts were in Morton County and Emmons County; they did not include Sioux County, where the Reservation is located. To identify the impact of the project on the populations in the chosen census tracts, the Corps compared the average demographic data from the two census tracts to that of "counties in the general vicinity" of the Oahe crossing - Emmons, Morton, and Sioux Counties - and to that of North Dakota generally. ... The Tribe challenges the Corps' decision to use a 0.5-mile buffer and the resulting analysis as arbitrary and capricious gerrymandering. The Standing Rock Reservation is 0.55 miles - or 80 yards beyond the 0.5-mile limit - downstream of the HDD site, and the Tribe contends that there was no principled basis on which to narrowly exclude it from the bounds of the Corps' analysis. It also notes that the two census tracts selected as the "affected area" are "mostly upstream of the crossing site" with a 98% white population. By comparing these tracts to a baseline of three counties that included Sioux County, Standing Rock argues, the EA "compar[ed] an area that will be almost entirely unaffected by a spill from the pipeline, and where few Tribal members live, against a baseline that included a significant portion of the Reservation." "Unsurprisingly," the Tribe observes, the "affected area' did not have a higher population of minority and low-income people than the claimed baseline, allowing the Corps to dismiss environmental justice concerns." Although "[the 'identification of the geographic area' within which a project's impacts on the environmental resources may occur 'is a task assigned to the special competency of the appropriate agencies," the Court is hard pressed to conclude that the Corps' selection of a 0.5- mile buffer was reasonable. ... Standing Rock is not the only entity to criticize the 0.5-mile-buffer choice. In its comments on the Draft EA, the EPA advised the Corps that "the area of analysis to assess potential impacts to EJ communities should correspond to the impacts of the proposed project instead of only the area of construction disturbance." "For oil pipeline projects, potential impacts to EJ communities would include the effects of leaks and spills to downstream water supplies (both drinking water quality, agricultural uses, and costs) and aquatic resources such as fish and riparian vegetation used by EJ populations." Even the Corps' Chief Counsel expressed concern about the agency's geographic selection when reviewing the EA's legal sufficiency. ... The Corps argues that the Court need not confine its analysis to the use of a 0.5-mile buffer, however, because the EA also devoted a separate section to environmentaljustice impacts on the Standing Rock Sioux Reservation. That additional section, as it turns out, does not yield the Corps a full reprieve. ... It first discusses impacts from the project's construction and anticipated operation, and it explains that: the crossing will be installed via HDD on private lands adjacent to Corps-owned land, HDD drilling has no anticipated environmental effects, the pipeline's route "maintain[s] a minimum distance of 0.5 mile[s] from Tribal land," and the closest residence on the Reservation to the Oahe crossing is more than 1.5 miles away. "As a result of this routing criteria, the nature of the action (construction associated with laying an underground oil pipeline), the short- term duration of effects, construction and operation on private lands, the concurrent reclamation activities, state of the art construction techniques, [and] use of high quality materials and standards that meet or exceed federal standards," the EA concludes, "there will be no direct or indirect effects to the Standing Rock Sioux Tribe. This includes a lack of impact to its lands, cultural artifacts, water quality or quantity, treaty hunting and fishing rights, environmental quality, or socio-economic status." Given the absence of impacts, it continues, "there is no resulting adverse or disproportionate impacts of the Proposed Action with respect to Environmental Justice considerations."The problem here, as the Tribe points out, is that this analysis covers only construction impacts, not spill impacts. As to the effects from a spill (as distinct from the risk of a spill occurring), the EA's discussion is minimal: ... Given the engineering design, proposed installation methodology, quality of material selected, operations measures and response plans ,] the risk of an inadvertent release in, or reaching, Lake Oahe is extremely low. ...[There are private and/or non-tribal intakes closer to the Lake Oahe crossing than any intakes owned by the tribe; further demonstrating the lack of disproportionate impacts of an inadvertent release to the Tribe and the reservation.... The siting and construction of oil pipelines upstream of drinking water intakes is not uncommon throughout the United States and is not considered an Environmental Justice issue. In the unlikely event of a release, sufficient time exists to close the nearest intake valve to avoid human impact. This limited analysis, the Court believes, is not enough to discharge the Corps' environmental- justice responsibilities under NEPA. "The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations." The EA takes some steps toward satisfying this purpose. ... But these statements are not enough to reasonably support the conclusion that the Tribe will not be disproportionately affected by an oil spill in terms of adverse human health or environmental effects. The EA is silent, for instance, on the distinct cultural practices of the Tribe and the social and economic factors that might amplify its experience of the environmental effects of an oil spill. Standing Rock provides one such example in its briefing: many of its members fish, hunt, and gather for subsistence. Losing the ability to do so could seriously and disproportionately harm those individuals relative to those in nearby non-tribal communities. The Corps need not necessarily have addressed that particular issue, but it needed to offer more than a bare-bones conclusion that Standing Rock would not be disproportionately harmed by a spill. Given the cursory nature of this aspect of the EA's analysis, the Court agrees with the Tribe that the Corps did not properly consider the environmental-justice implications of the project and thus failed to take a hard look at its environmental consequences.... B. Decision to Grant the Easement The Tribe's second set of arguments centers around the Corps' February 8, 2017, decision to grant an easement to Dakota Access to construct and operate DAPL under Lake Oahe. As a reminder, the Corps had previously said, in a memo issued on December 4, 2016, that it would not grant such an easement based on the current record and would undertake additional analysis before making a final decision. Standing Rock contends that the Corps' February 2017 easement decision was an arbitrary and capricious reversal of its previous position. ... 1. Policy Change When an agency action changes or reverses a prior policy, it must "display awareness that it is changing position"; it may not, e.g., "depart from a prior policy sub silentio." ... To satisfy the APA's procedural-correctness requirements, it is sufficient "that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates." Sometimes, though, more is required. ... The agency need not, though, "refute the factual underpinnings of its prior policy with new factual data." It is enough that it offer a "reasoned explanation ... for disregarding facts and circumstances that underlay ... the prior policy." ... First, the Corps displayed "awareness that it [was] changing position." The February 3, 2017, memo ... that recommended granting the easement ... explained that, "[after reviewing the record in its entirety and giving further consideration to the input received over the past four months, ... the Corps finds that the Final EA concerning the crossing of the DAPL at Lake Oahe is sufficient 5and does not need further supplementation." Second, the Corps provided a reasoned explanation for its new policy. ..."[The Corps' prior reviews and actions" - including the EA and FONSI - "comported with legal requirements"... [and] the proposed action described in the EA did not change between July 2016 and February 2017.... [The Corps did enough to satisfy the APA's requirements regarding policy reversals. D. Remedy So where does that leave us? The Court turns now to the question of remedy. ... In this Circuit, vacatur is the "standard remedy" for a NEPA violation. 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. [The Court will order the litigants to submit briefing on whether remand with or without vacatur 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. [Subsequent developments: October 11, 2017: Judge Boasberg denied an injunction that would shut down the pipeline while the EJ and other factors are considered in a new EA. The decision to not issue an injunction was not appealable to the DC Circuit Court of Appeals because the EA had been remanded to the ACOE after this lawsuit to determine whether an EIS is required, and that process must finish before appeals. February 2019: ACOE completed its revised EA as ordered in the 2017 opinion, finding no significant impact. All parties asked this court to resolve whether the EA was sufficient to satisfy the ACOE's NEPA requirements. The following is an excerpt from the March 25, 2020 decision on that matter. You do not have to brief this 2020 decision, but it is instructive to see how the court handled the arguments and see the outcome.]