{"id":10685,"date":"2017-11-03T20:21:13","date_gmt":"2017-11-04T00:21:13","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10685"},"modified":"2017-11-04T10:09:11","modified_gmt":"2017-11-04T14:09:11","slug":"victory-without-a-remedy-update-on-the-long-fight-against-dapl","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/victory-without-a-remedy-update-on-the-long-fight-against-dapl\/","title":{"rendered":"Victory Without a Remedy: Update on the Long Fight Against DAPL"},"content":{"rendered":"

In November 2016, the United States District Court for the District of Oregon handed down an extraordinary decision in a case called Juliana v. United States<\/em>.[1]<\/a> Plaintiffs\u2013\u2013a group of children\u2013\u2013challenged the \u201cpolicies, acts, and omissions\u201d of the President of the United States and several federal agencies with respect to regulations of CO2<\/sub> emissions from power plants, motor vehicles, and other areas of industry.[2]<\/a> Plaintiffs alleged that defendants\u2019 decisions substantially caused global warming and thus violated plaintiffs\u2019 right to \u201ca stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO2<\/sub>.\u201d[3]<\/a> Under Substantive Due Process, the government cannot \u201c\u2018infringe [on] certain \u2018fundamental\u2019 liberty interests\u00a0. . .<\/em> unless the infringement is narrowly tailored to serve a compelling\u00a0state interest.\u2019\u201d[4]<\/a> As a remedy, the plaintiffs asked the court to state that the federal government\u2019s environmental policy violated their fundamental rights, \u201cdirect the agencies to conduct a consumption-based inventory of United States CO2<\/sub>\u00a0emissions,\u201d and use the inventory to create a national plan to eventually eliminate fossil fuel emissions.[5]<\/a><\/p>\n

The district court held for the plaintiffs, stating that the \u201cright to a climate system capable of sustaining human life is fundamental to a free and ordered society,\u201d akin to other fundamental rights, such as the right to marriage.[6]<\/a> The holding is unique in declaring that a livable environment constitutes a fundamental right and giving weight to injuries that will take place far in the future.[7]<\/a> Juliana <\/em>also raises interesting questions about legal remedies. After all, it seems unlikely that one district court can change the entire federal environmental regulatory scheme. Fashioning a remedy that would require massive changes to the status quo is difficult. In particular, status quo bias seems to factor in heavily in cases that weigh future rights again present (often financial) interests. This is an important lens through which to view the continued legal saga against the Dakota Access Pipeline (DAPL).<\/p>\n

DAPL was built to transport oil from the Bakkan oil fields in North Dakota to storage facilities in Southern Illinois. The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe have repeatedly sued the U.S. Army Corps of Engineers for permitting construction of the pipeline. The Tribes first challenged the Corps on the grounds that clearing the land needed for DAPL threatened significant cultural and historical sites, and the Corps failed to consult with the Tribes before moving forward.[8]<\/a> The Tribes next argued that building the pipeline under Lake Oahe would \u201cdesecrate sacred waters and make it impossible for the Tribes to freely exercise their religious beliefs\u201d in violation of the Religious Freedom Restoration Act (RFRA).[9]<\/a> The Tribes were not successful in either of these challenges. In their third attempt to stop the construction of the pipeline, the Tribes challenged the Corps\u2019 decision to grant permits to Dakota Access to build the pipeline under Lake Ohae. The Tribes argued that the Corps\u2019 did not meet its obligation under the National Environmental Policy Act (NEPA) to consider the environmental impacts of the pipeline.<\/p>\n

Under NEPA, federal agencies must prepare an environmental impact statement (EIS) on major federal actions that significantly affect the quality of the environment.[10]<\/a> The statement must include a detailed summary of the environmental impacts, alternatives to the proposed action, and any \u201cirreversible and irretrievable commitments of resources\u201d involved if the agency implements the proposed action.[11]<\/a> To determine whether it is necessary to prepare an EIS, the agency first prepares an environmental assessment (EA), which is essentially a mini-EIS.[12]<\/a> The agency can avoid preparing a full EIS if the EA makes a finding of no significant impact on the environment. In December 2015, the Corps published a preliminary EA and requested public comment. In the EA, the Corps concluded that the construction of DAPL was \u201cnot expected to have any significant direct, indirect, or cumulative impacts on the environment.\u201d[13]<\/a> The Tribes submitted comments asking the Corps to complete an EIS to address the pipeline\u2019s potential impact on the lake water, the likelihood of oil spills, and its proximity to the Reservation. [14]<\/a> The Tribes also requested that the Corps look into environmental justice concerns.[15]<\/a> Other federal agencies, such as the Department of the Interior and the Environmental Protection Agency, suggested that the Corps prepare an EIS. The Corps, however, eventually published a final EA with a \u201cMitigated Finding of No Significant Impact\u201d on the environment. The Corps did not prepare an EIS.<\/p>\n

On June 14, 2017, the District Court for the District of Columbia reviewed the Corps\u2019 decision not to prepare a full EIS and found three discrepancies in the Corps\u2019 reasoning. The court stated that, although the Corps did comply with its NEPA obligations in many areas, \u201cit 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\u2019s effects are likely to be highly controversial.\u201d[16]<\/a> The holding should have been a victory for the Tribes. After all, the Corps was now required to go back and prepare a full EIS and thoroughly evaluate potential environmental harms from the construction of the pipeline. There was one problem though: Dakota Access had already constructed the pipeline. The Tribes\u2019 attempts to gain injunctive relief to halt construction during litigation had repeatedly failed.<\/p>\n

In August of 2016, the Tribes had requested a preliminary injunction grounded in the argument that, under the National Historic Preservation Act, \u201cthe clearing and grading of land along the pipeline route\u201d destroyed sacred sites.[17]<\/a> The D.C. district court denied the preliminary injunction,[18]<\/a> and construction of the pipeline continued. On February 8, 2017, the Corps granted Dakota Access an easement to cross Lake Oahe and finish construction of the pipeline. In response, Cheyenne River filed a motion for a preliminary injunction and an application for a temporary restraining order (TRO) (both were based on the tribes claims under RFRA).[19]<\/a> Standing Rock joined the application for a TRO. On March 7, 2017, the court denied both the TRO and the preliminary injunction, stating that \u201c[a]t this point . . . the Corps has granted the permits and easement, and DAPL\u2019s construction under Lake Oahe is days from completion.\u201d[20]<\/a> The court concluded that the equitable doctrine of laches (i.e. that a party diligently and timely file a claim) and the Tribes\u2019 unlikelihood of success on the merits weighed against stopping construction of the pipeline.[21]<\/a> Thus, Dakota Access finished construction of the pipeline as the Tribes continued litigation to halt it.<\/p>\n

Previous denials of TROs and preliminary injunctions made remedy a difficult question for the court in its June 14 decision. As a result, the court delayed making a decision on remedy and asked the parties to further brief the issue.[22]<\/a> The Tribes had won the June 14 case. But should the court vacate the Corps\u2019 EA, as well as the easement the Corps granted to Dakota Access (without which oil could not flow in the pipeline)? This question brings us to the court\u2019s most recent decision in a long line of litigation over construction of DAPL. On October 11, 2017, the court decided not to vacate the EA and the easement based on the \u201c\u2018serious possibility\u2019 that the Corps will be able to substantiate its prior conclusions.\u201d[23]<\/a> The court noted that if the Tribes wished to challenge whether the Corps met its NEPA obligations on remand, they would be free to do so. Unfortunately, it seems that the Tribes\u2019 chance at success significantly diminished with each denial of a TRO or preliminary injunction. Without halting the project early on, vacating a completed pipeline likely seemed too harsh. Of course, with construction done and oil flowing through, it is unlikely that any future challenges will be met with much success. This seems to go against one of the purposes of obligating agencies to assess environmental impacts in the first place: that, if the agency finds that a project might have deleterious impacts, the agency may choose not to move forward. The Tribes will get an EIS; but the pipeline is not going anywhere.<\/p>\n

This most recent decision in the long process of litigation against DAPL illustrates the difficulties in the crafting remedies for plaintiffs facing environmental hazards. The interests the Tribes sought to protect in this litigation (the right to a clean, livable environment) bump up against other interests (construction of a pipeline) that are not easily undone. The status quo bias exists when it comes to dealing with environmental problems. Once industry pollutes, it is hard to see how the pollution affects other rights (i.e., future rights), but it is easy to see how certain regulations will impact industry. The same problem appeared to play out in the DAPL litigation, and it will likely affect litigation going forward in Juliana<\/em>. Once Dakota Access built the pipeline, it was difficult for courts to take it away. Taking it away would mean extensive construction, financial resources, and hard work would go to waste. Of course, this means that Tribal rights are not given the concern they deserve. But, like future rights or rights to a clean environment, these are likely harder for courts to quantify and weigh against other, more present and demanding interests.<\/p>\n

 <\/p>\n

[1]<\/a> Juliana v. United States<\/em>, 217 F. Supp. 3d 1224 (D. Or. 2016),\u00a0motion to certify appeal denied,<\/em>\u00a0No. 6:15-CV-01517-TC, 2017 WL 2483705 (D. Or. June 8, 2017).<\/p>\n

[2]<\/a> Id.<\/em> at 1234.<\/p>\n

[3]<\/a> Kelsey Cascadia Rose JULIANA; Xiuhtezcatl Tonatiuh M., through his Guardian Tamara Roske-Martinez; Alexander Loznak; Jacob Lebel; Zealand B., through his Guardian Kimberly Pash-Bell; Avery M., through her Guardian Holly McRae; Sahara V., through her Guardian Tona Aguilar; Kiran Isaac Oommen; Tia Marie Hatton; Isaac V., through his Guardian Pamela Vergun; Miko V., through her Guardian Pamela Vergun; Hazel V., through her Guardian Margo Van Ummersen; Sophie K., through, 2015 WL 4747094 (D.Or.).<\/p>\n

[4]<\/a> Juliana<\/em>, 217 F. Supp. at 1248\u201349 (quoting Reno v. Flores<\/em>, 507 U.S. 292, 302, (1993)).<\/p>\n

[5]<\/a> Id.<\/em> at 1239.<\/p>\n

[6]<\/a> Id.<\/em> at 1250.<\/p>\n

[7]<\/a> Id. <\/em>at 1244.<\/p>\n

[8]<\/a> See<\/em>\u00a0Standing Rock Sioux Tribe v. U.S. Army Corps of <\/em>Engineers<\/em>, 205 F.Supp.3d 4, 7 (D.D.C. 2016).<\/p>\n

[9]<\/a> Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers<\/em>, No. CV 16-1534 (JEB), 2017 WL 2573994, at *1 (D.D.C. June 14, 2017) (citing Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs<\/em>\u00a0(Standing Rock II), No.\u00a016-1534, \u2013\u2013\u2013 F.Supp.3d \u2013\u2013\u2013\u2013, \u2013\u2013\u2013\u2013, 2017 WL 908538, at *1 (D.D.C. Mar. 7, 2017)).<\/p>\n

[10]<\/a> 42 U.S.C.A. \u00a7 4332 (NEPA \u00a7 102(2)(C)).<\/p>\n

[11]<\/a> Id.<\/em><\/p>\n

[12]<\/a> 40 C.F.R. \u00a7 1501.4.<\/p>\n

[13]<\/a> Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers<\/em>, No. CV 16-1534 (JEB), 2017 WL 2573994, at *4 (D.D.C. June 14, 2017) (citing ECF No. 6\u201319 (Draft EA) at 1).<\/p>\n

[14]<\/a> Id.<\/em><\/p>\n

[15]<\/a> Id.\u00a0<\/em>The Environmental Justice movement focuses on assuring that marginalized communities receive an equitable distribution of environmental benefits and harms, as compared to society writ large.<\/p>\n

[16]<\/a> Id.<\/em> at *1.<\/p>\n

[17]<\/a> Id. <\/em>at *5.<\/p>\n

[18]<\/a> Standing Rock Sioux Tribe<\/em>\u00a0v.\u00a0U.S. Army Corps of Engineers<\/em>, 205 F. Supp. 3d 4, 37 (D.D.C. 2016).<\/p>\n

[19]<\/a> Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers<\/em>, No. CV 16-1534 (JEB), 2017 WL 2573994, at *7 (D.D.C. June 14, 2017) (citing ECF Nos. 98, 99;\u00a0Standing Rock II<\/em>, \u2013\u2013\u2013 F.Supp.3d at \u2013\u2013\u2013\u2013, 2017 WL 908538, at *3).<\/p>\n

[20]<\/a> Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers<\/em>, 239 F. Supp. 3d 77, 87 (D.D.C. 2017),\u00a0appeal dismissed sub nom.<\/em>\u00a0Standing Rock Sioux Tribe v. United States Army Corps of Engineers<\/em>, No. 17-5043, 2017 WL 4071136 (D.C. Cir. May 15, 2017). See also <\/em>https:\/\/www.nbcnews.com\/storyline\/dakota-pipeline-protests\/judge-tosses-dakota-pipeline-motion-seeking-block-construction-n730271.<\/p>\n

[21]<\/a> Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers<\/em>, No. CV 16-1534 (JEB), 2017 WL 2573994, at *7 (D.D.C. June 14, 2017).<\/p>\n

[22]<\/a> Id.<\/em> at *1.<\/p>\n

[23]<\/a> Standing Rock Sioux Tribe\u00a0v.\u00a0U.S. Army Corps of Engineers<\/em>, D.D.C., No. CV 16-1534 (JEB) (Oct. 11, 2017)<\/p>\n","protected":false},"excerpt":{"rendered":"

In November 2016, the United States District Court for the District of Oregon handed down an extraordinary decision in a 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