ADMINISTRATIVE LAW - ENVIRONMENTAL LAW - REMEDIES - D.C. CIRCUIT UPHOLDS VACATUR AND REMAND OF DAKOTA ACCESS PIPELINE EASEMENT, REVERSES DISTRICT COURT ORDER TO CEASE PIPELINE OPERATIONS - Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers.

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Date: Apr. 2022
From: Harvard Law Review(Vol. 135, Issue 6)
Publisher: Harvard Law Review Association
Document Type: Case note
Length: 3,781 words
Lexile Measure: 1880L

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Administrative law has a remedy problem. Careful attention to procedural safeguards and standards of review in administrative cases often leaves remedial options undertheorized both in court opinions and in scholarly commentary. (1) Recently, in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (2) the D.C. Circuit upheld the vacatur of an easement to construct a major pipeline system known as the Dakota Access Pipeline (DAPL). (3) In conducting its vacatur analysis, the Standing Rock court drew a key distinction: the vacatur inquiry looks to whether the agency could justify its procedural actions on remand, not whether it could justify its final decision. This approach is controversial (4) but should become the new canon in vacatur analyses. By preserving the remand without vacatur remedy, but cabining its applicability, the Standing Rock rule helps align judicial practice with the twin mandates of the Administrative Procedure Act (5) (APA), that a reviewing court "shall ... set aside" flawed agency action while taking "due account" of "prejudicial error." (6) The Standing Rock decision also comes at an opportune time. With the Supreme Court yet to articulate its view on remand without vacatur, Standing Rock both fills the space left by the Court's silence and offers a compelling analytic model for the Court should it seek to clarify the doctrine in this important area of administrative law.

In June 2014, Dakota Access Pipeline, LLC (Dakota Access) applied to the U.S. Army Corps of Engineers for an easement to construct an oil pipeline across the federally regulated waters of Lake Oahe in the Dakotas. (7) The long, narrow lake--formed by an Army Corps dam in the 1950s--provides crucial water resources to the Standing Rock Sioux Tribe and other members of the Great Sioux Nation that have lands in the region. (8) Dakota Access sought to transport oil from North Dakota to Illinois and selected a route that required the pipeline to pass underneath the lake on its way south. (9) Crossing the lake required an Army Corps easement. To issue the easement, the Corps had to comply with the National Environmental Policy Act of 1969 (10) (NEPA), which requires preparation of an Environmental Impact Statement (EIS) for any federal action likely to have a significant adverse effect on the environment. (11) Instead of a full EIS, the Corps issued an Environmental Assessment (EA) and a mitigated Finding of No Significant Impact (FONSI). (12) No EIS was necessary, the Corps argued, because the underground pipeline crossing of Lake Oahe would not "significantly affect the quality of the human environment." (13) Objecting to the Corps's NEPA analysis, the Standing Rock and Cheyenne River Sioux Tribes sought a preliminary injunction against the Corps in federal court. (14) Although the court denied the request for an injunction, the Departments of Justice, the Interior, and the Army issued a joint statement indicating that the Corps would reconsider its decision not to conduct an EIS. (15) On January 18, 2017, the Assistant Secretary of the Army for Civil Works published...

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Gale Document Number: GALE|A702381258