ELR Citation: 51 ELR 20014
No(s). 20-5197 (D.C. Cir. Jan 26, 2021)

The D.C. Circuit affirmed in part and reversed in part a lower court order vacating a Mineral Leasing Act easement issued by the Army Corps of Engineers for the Dakota Access Pipeline and directing the pipeline to be shut down. Native American tribes argued the Corps' issuance of the easement without preparing an EIS violated NEPA. The district court had concluded that the effects of the Corps' easement decision were "likely to be highly controversial" under NEPA, and thus vacated the easement while the Corps prepared an EIS and ordered the pipeline to be shut down. The appellate court agreed that several serious scientific disputes—the effectiveness of the pipeline's leak detection system, the Corps' reliance on general pipeline safety rather than the operator's specific safety record in conducting its risk analysis, the degree to which the Corps considered the challenges of addressing oil spills in winter conditions, and the sufficiency of the agency's analysis of the impacts of a worst-case discharge—meant that the effects of the Corps' decision were likely to be highly controversial; but it concluded the district court could not order the pipeline to be shut down without making the findings necessary for injunctive relief. It affirmed the order vacating the easement and directing the Corps to prepare an EIS, but reversed the order directing the pipeline to be shut down and emptied.