Hi
Thanks for linking the Corps' responses.
Wonder how those good faith discussions are going (;>)
(Maysonnett's filing went to the higher court, the "good faith" quip is, of course, from Judge B)
Bloomberg
Law has the filing online - so I'm going to wade thru it and take some
notes along the way. No need to respond - this is just a way to sort.
We both know that we want the permit affirmed and I have no idea what
point of law will be the hingepin.
Some background before starting:
Maysonnett
was lead attorney on a couple cases where the US prevailed over
enviros. In 2017, there was a dispute over a Florida Bridge, in 2016
there was an objection to a road being built thru a Colorado ski area.
Didn't spend any time looking at either case, but it was heartening to
see that he had that prior experience and result.
The Semonite case is mentioned as a game changer. I don't know much about the case, but, here's a quickish romp thru:
- Opinion written by Circuit Judge David Tatel - Clinton appointee - born in 1942, legally blind since 1972. (Tatel had opined in the MAZAR's case that Trump's tax records had to be turned over to the House of Representatives by accountants. That was overturned by the Supreme Court.)
- Semonite (head of the Corps) was sued by some enviro/historical groups over some electrical towers crossing the James River. The utility company (Dominion) had agreed to pay $90 million to the groups. I don't know if they cashed the checks, or if these were other groups, but the lawsuit starts sounding familiar in that the permit was issued without a full EIS, and construction completed. It was Tatel's opinion that the permit could be retroactively cancelled...that's a first.
- One lawfirm's subsequent recap (not a solicitation of business - ha!) said that although the 26-page ruling contained only "exactly 1 sentence" mentioning Native American Tribes, that it could have profound impact on their disputes - further noting that there had recently been 6 "new" tribes IN VIRGINIA recognized since the lawsuit.
- I get confused as to which DC court is which. The court Tatel serves on is this one:
The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate courts, and covers only one district court: the U.S. District Court for the District of Columbia. It meets at the E. Barrett Prettyman United States Courthouse, near Judiciary Square, Washington, D.C.
The D.C. Circuit's prominence and prestige among American courts is second only to the U.S. Supreme Court because its jurisdiction contains the U.S. Congress and many of the U.S. government agencies, and therefore it is the main appellate court for many issues of American administrative law and constitutional law.[1] Four of the current nine justices on the Supreme Court were previously judges on the D.C. Circuit: Chief Justice John Roberts and Associate Justices Clarence Thomas, Ruth Bader Ginsburg, and Brett Kavanaugh.
- Interestingly enough, Merrick Garland is still on that court (;>)
- I don't know what Dominion is doing since their permit has been pulled - and really have to put that aside to get to the DAPL issue - but here's their local editorial backing the project. https://www.pilotonline.com/opinion/vp-ed-editorial-peninsula-power-0617-20200617-5fx3oftbrvhcrhsfssiu4mrweq-story.html
- And, quite sickeningly, the court that Tatel and Garland serve on is the court that's hearing DAPL'S appeal on Boasberg's ruling.
......................
from the 8/26/20 Maysonnett filing (over 50 pages - I've really tried to shorten it)
....
The Corps found that the risk of an oil spill is low and that its
effects would be limited—not only because the pipeline was built with an array
of safety features, but also because it is buried deep beneath the lake bed, such
that 92 feet of clay create a physical barrier between the pipeline and Lake
Oahe’s waters. Based on that, and the rest of the analysis in its environmental
assessment (“EA”), the Corps concluded that the effects of its action here are
not “significant” and do not require the preparation of a more detailed
“environmental impact statement” (“EIS”).
The Tribes oppose the pipeline. Their experts argue that a catastrophic
oil spill could be larger than the Corps estimated. But they have ignored that
the risks of these more extreme spills—which could result only from a “perfect
storm” of malfunctions and operator errors—are not just low, but remote and
speculative. And they have ignored that the pipeline is buried deep beneath the
lakebed, which makes many of these scenarios not just unlikely, but physically
impossible. Nevertheless, the Corps carefully reviewed the Tribes’ criticisms
and rationally concluded that they did not render the effects of its action
“highly controversial.”
For its part, the district court decided that the Corps’ analysis was
irrelevant: even if the Corps’ conclusions were rational, the effects of its action
were rendered “highly controversial” by the mere existence of “consistent and
strenuous opposition” by the Tribes. This was error: the law requires the court
to review the Corps’ reasoned analysis, not merely whether opposition exists.
Because the Corps’ conclusions are rational and are supported by the
administrative record, the court should have entered judgment on these claims
for the Corps. The district court also erred in ordering the Corps to prepare an
EIS, vacating the easement granted by the Corps, and enjoining the operation
of the pipeline without making the findings required by law.
....The opposition of the Tribes’ experts, by itself, is not sufficient to show
that the effects of the Corps’ action are “highly controversial.” As documented
by the record, the Corps analyzed their criticisms and nonetheless rationally
concluded that the effects of its action are not “highly controversial.” Perhaps
most significantly, while the Tribes and the district court both focused on the
potential consequences of a catastrophic oil spill, they failed to discount those
consequences by the very low risk that such a spill will ever occur.
....
The risk of a spill is low. This pipeline has been built to meet or exceed
all industry and regulatory standards. 3 J.A. 540. It has many safety features
designed to minimize the risk of spills.....
The pipeline is equipped with an array of sensors that report pipeline
conditions every six seconds, allowing a real-time model of pipeline flow to be
updated every thirty seconds....
The operator has a detailed
plan, approved by the federal Pipeline and Hazardous Materials Safety
Administration (“PHMSA”), to respond to any spills. 3 J.A. 546. These safety
features are not optional: the Corps mandated their use by including them as
conditions on the right-of-way.....
The pipeline is, in total, nearly 1,200 miles long; about a mile of it runs
beneath Lake Oahe. 3 J.A. 469. One of the pipeline’s most important safety
features is the fact that it was buried 92 feet below the bed of Lake Oahe using
“horizontal directional drilling” (“HDD”) technology, along the same route
but below an existing natural gas pipeline. 3 J.A. 494, 469. If the pipeline
somehow spilled oil at those depths, 92 feet of clay and “low permeability
alluvium and glacial deposits” (known as “overburden”) would form a physical
barrier separating the spill from the lake. 8 J.A. 1830, 1839. This depth was
chosen after a geotechnical survey to ensure that the overburden will act as a
barrier. 8 J.A. 2024. The weight and pressure of that material will “restrict the
volume of oil spilled” and “virtually eliminate” the risk that a spill can reach
the waters of Lake Oahe, 8 J.A. 1830. If the pipeline did leak, that oil would
not enter the lake, but would likely travel up the pipeline’s borehole and spill
onto the land where the pipeline enters the ground, either from the
western shore or from the eastern shore. Id.; 10 J.A. 2502.
The consequences of a spill—even a large spill—would be temporary
and limited.
....
The models show that the consequences of even a catastrophic spill
would be temporary and limited. For example, the spill would not be likely
to contaminate drinking water intakes. 8 J.A. 1879–82, 1908–10.
Even ten
days after a catastrophic and unmitigated spill, the oil would still be
at least (redacted) upstream from the Standing Rock Sioux Tribe’s water
intake and
about (redacted) upstream of the Cheyenne River Sioux Tribe’s water
intake.
8 J.A. 1877. Moreover, in the event of a catastrophic spill, the operator would
be required to take steps to protect these water intakes within hours and long
before ten days had elapsed. 3 J.A. 490–91, 495. If the operator failed to do so,
the federal government is authorized to take the steps necessary to protect the
Tribes (and to bill the operator for response costs). See, e.g., 33 U.S.C. § 1321.
And even if the spill were somehow allowed to continue unmitigated, the
models show that by the time the oil reached the Tribes’ intakes, the levels of
contamination would be diluted below regulatory thresholds. 8 J.A. 1910.
The Tribes’ criticisms do not show that the effects of this action are
“highly controversial.”
On remand, the Corps reviewed and considered 339
comments submitted by the Tribes. 8 J.A. 1819, 1927. The Corps responded to
all of the Tribes’ comments, but it identified only 28 as providing the kind of
criticism that could conceivably show that the effects of this action are “highly
controversial.” 8 J.A. 1927. The Corps responded to those 28 comments in
greater detail. 8 J.A. 1927–57.
Ultimately, the Corps concluded that none of the Tribes’ comments
showed that “a substantial dispute exists as to the size, nature, or effect of the
major federal action,” and thus the effects of the Corps’ action are not “highly
controversial.” 8 J.A. 1927, 1956–57. Although
the Tribes had, for example,
criticized the oil spill modeling used by the Corps, none of the Tribes
provided the results of their own preferred spill models for the Corps
to consider. 8 J.A.
1831. And while “there may be other methods for predicting oil spill effects,”
the Corps found that “it is not likely that employing further methods will result
in substantively different views or information that is more comprehensive than
what the Corps has considered here.” 8 J.A. 1956–57.
B. The district court erred in granting summary judgment to
the Tribes on these NEPA claims.
In its earlier decisions, the district court “largely upheld” the Corps’
NEPA analysis, but remanded certain specific issues back to the Corps for
further explanation. 1 J.A. 102. But after the Corps completed that remand,
this Court decided National Parks Conservation Ass’n v. Semonite, 916 F.3d 1075
(D.C. Cir.), amended on reh’g, 925 F.3d 500 (D.C. Cir. 2019) (“Semonite”), and
the district court concluded that Semonite had announced a sea change in the
law. See 1 J.A. 109. The court decided that the question was no longer whether
the Corps had rationally concluded that the effects of its actions were not
“highly controversial”; instead, the question was whether the Corps had
“succeeded” in resolving its controversy with the Tribes. 1 J.A. 110. Based on
this misreading of Semonite, the court held that the Corps’ extensive review
was irrelevant and the effects of its action were rendered “highly controversial”
merely by “the existence of ‘consistent and strenuous opposition’” by the Tribes’
experts. 1 J.A. 112 (emphasis in original).
The district court applied the wrong legal standard. It ruled against
the Corps even though the record shows that the Corps analyzed the Tribes’
criticisms and rationally concluded that the effects of its action are not “highly
controversial” or significant. The court ignored the fact that the risk of any
oil spill reaching the waters of Lake Oahe is extremely low—a critical factor
in the Corps’ analysis—and that the consequences of such a spill must be
“discount[ed]” “by the improbability of [its] occurrence.” New York, 681 F.3d
at 479. The court also assumed, without explanation, that because it had found
that the effects of the action are “highly controversial,” they must also be
“significant,” even though the degree of controversy is only one of ten factors
that the Corps weighs in context to make a finding of significance. We discuss
each of the district court’s errors in detail below.
1. The district court applied the wrong legal standard.
The NEPA regulations that apply here advise agencies to consider the
“degree to which the effects [of the agency’s action] . . . are likely to be highly
15
controversial.” 40 C.F.R. § 1508.27(b)(4).2
“Highly controversial” is a term of
art under these regulations that refers to “a substantial dispute” about “the size,
nature, or effect of the major federal action.” Town of Cave Creek v. FAA, 325
F.3d 320, 331 (D.C. Cir. 2003). Controversy does not refer to the “existence of
opposition to a use.” Id. It is not “whether or how passionately people oppose”
a project, but rather a dispute “over the size or effect of the action itself.” Wild
Wilderness v. Allen, 871 F.3d 719, 728 (9th Cir. 2017).
This factor does not create a “heckler’s veto.”
....
Finally, the degree of controversy is only one of ten factors that agencies
weigh, in context, to determine whether the effects of their actions are
“significant.” 40 C.F.R. § 1508.27(b)(1)–(10). By itself, controversy is not
necessarily dispositive of whether an EIS is required. Town of Marshfield v.
FAA, 552 F.3d 1, 5 (1st Cir. 2008); Hillsdale Environmental Loss Prevention, Inc.
v. U.S. Army Corps of Engineers, 702 F.3d 1156, 1181 (10th Cir. 2012).
.....
Bruce
- there's some more good stuff here, but to simplify reading, from here
on out, I'm going to remove their legal citations and just substitute
"cite"
Scientific
disputes are
“part of the everyday existence” of agencies like the Corps, and NEPA
does
not demand “scientific unanimity in order to support a FONSI.” (cite).
These basic principles of administrative law have led the courts to
reject
the notion that “an EIS must be prepared whenever qualified experts
disagree.(cite). If disagreement of this kind “were all that was
necessary to mandate an EIS, the environmental
assessment process would be meaningless.” Id. An agency’s “careful
evaluation
of the impact of its proposed action. . . and its reasoned conclusions”
would
all be “for naught” if a litigant could “create a controversy
necessitating an
EIS” “by simply filing suit and supplying an affidavit by a hired
expert.....
The district court failed to apply this standard. Instead, it held that the
“highly controversial” factor was triggered by the mere “existence of ‘consistent
and strenuous opposition’ ” by the Tribes’ experts. cite). Moreover, the court held that the Corps’ reasoning and conclusions
were irrelevant in light of the Tribes’ opposition. Id. And when the court
did review the Corps’ findings, it did not apply the APA’s “arbitrary and
capricious” standard; instead, it rejected the Corps’ conclusions on the grounds
that the Corps’ had not “succeeded” in persuading the Tribes, a party to the
dispute.....
No part of this is consistent with the law. By wholly ignoring the Corps’
reasoning and by failing to apply the “arbitrary and capricious” standard, the
district court violated basic principles of administrative law. By elevating the
Tribes’ opposition over the Corps’ reasoned analysis, the court gave the Tribes
the very “heckler’s veto” rejected by every other court. By requiring the Corps
not only to respond to the Tribes’ objections, but also to “successfully resolve”
them, the district court impermissibly imposed on the agency extra-statutory
duties of its own creation....
This
Court’s decision in Semonite does not require otherwise. Semonite
concluded that a project to run power line towers across the James River
near
historic Jamestown was “highly controversial.” (cite). The project
had been met by “consistent and strenuous opposition” by “highly
specialized
governmental agencies and organizations.” (cite) Those criticisms,
the Court found, had identified flaws in the agency’s methods. (cite) In
response to the criticisms, the Corps directed the project proponent to
revise
its “photo simulations,”-efforts that Semonite later deemed
“superficial and inadequate.” (cite) The Corps then dismissed the
controversy as “inherently subjective.” Id. This Court ruled against the
Corps, finding that the agency had “failed to make a ‘convincing case’
that an EIS is unnecessary.” Importantly, it was not the mere existence
of opposition that rendered the Corps’ decision in Semonite “arbitrary
and
capricious”—it was that opposition combined with the agency’s failure to
come forward with a “well-reasoned explanation” showing that the effects
of
its action were not “highly controversial.” (cite) The district court built its new standard on a single paragraph from
Semonite, in which this Court opined that the “question is not whether the
Corps attempted to resolve the controversy, but whether it succeeded.” But what the Corps had to do to “succeed” in “resolving the
controversy” was not to convince the Tribes and their experts, but rather to
analyze the issues and reach a rational conclusion on whether a controversy
existed. Controversy requires more than just people who are “willing to go to
court over the matter.” (cite) The Court did
not overturn that principle in Semonite: it simply confirmed that, on the facts
presented, the Corps had not rationally concluded that the effects of its action
were not “highly controversial.”
....the
Corps’ efforts to respond to the Tribes’ criticisms were not
“superficial.” The Corps required the operator to complete extensive new
studies to address the Tribes’ concerns.(cite) The Corps solicited new
criticism from the Tribes and their experts, and responded to those
criticisms
in detail.(cite) The Corps closely analyzed these disputes and
concluded that the effects of its action—given the low risk of an oil
spill, and the limited and temporary consequences of even a severe
spill—were not
“highly controversial” or “significant.” The Corps has made the “convincing
case” that it failed to make in Semonite.
Moreover, unlike Semonite, opposition here has come from the Tribes
and their consultants, not from disinterested public officials; the expert agency,
PHMSA, did not object to the Corps’ analysis. (cite) Perhaps most
significantly, the low risk of an oil spill was a “critical factor” here that was
not present in Semonite; in that case, there was no question of risk because it
was undisputed that the towers would harm the views around Jamestown.
If not corrected, the district court’s decision will create a new, heightened
standard of judicial review that will be impossible for agencies to meet as they
consider vital infrastructure projects that excite opposition from some sector of
society. No part of this is compelled by Semonite or consistent with the law.
II. The district court abused its discretion in vacating the easement.
The district
court should not have vacated the easement granted by the
Corps. (cite) The factors set out in Allied-Signal, Inc. v. NRC, (cite),
do not support vacatur. The first AlliedSignal factor—“the seriousness
of the order’s deficiencies”—weighs against
vacatur because the thoroughness of the Corps’ analysis and the narrow
errors
identified by the district court do not create significant doubt about
whether
the Corps “chose correctly.” The second Allied-Signal factor—the
“disruptive
34
consequences” of vacatur—also weighs against vacatur: if one assumes
that
vacating the easement means enjoining the operation of the pipeline, it
will
cause profound economic harm; and, if not, vacatur does nothing more
than
render unenforceable the conditions that the Corps placed on this
easement to
ensure its safe operation.
III. The district court erred in enjoining operation of the pipeline.
The district court also enjoined the operator to “shut down the
pipeline
and empty it of oil by August 5, 2020.” (cite)To grant this injunction,
the
district court had to find not only that the Tribes had succeeded on the
merits,
but that the continued operation of the pipeline is likely to cause
irreparable
injury to the Tribes, that the economic harm done by shutting the
pipeline
down is outweighed by the likely injury to the Tribes, and that the
public
interest will not be disserved. (multiple cites).
The district court made none of these findings, and instead mistakenly
held the Allied-Signal test for vacatur replaces the four-factor test
for injunctive
relief. As this Court has already held, the district court erred because
it “did
not make the findings necessary for injunctive relief.” Order (Aug. 5,
2020).
Most importantly, the court did not find that the Tribes are likely to
suffer
irreparable injury without an injunction. (cite). There is no evidence
of likely irreparable injury here because
the Corps rationally concluded that the risk of a spill is low, and the
pipeline
has operated safely for three years, confirming the Corps’ conclusions.
The district court did not find likely irreparable injury; instead, it
agreed that the
risk an oil spill was small and but concluded that the injunction “would
mitigate even this small risk.” Injunctions, however, are not tools
for mitigating small risks, and nothing less than a finding of irreparable injury
can sustain one. (cite). Nor did the court
balance the “small” risk faced by the Tribes against the immediate and
irreparable economic harm that shutting this pipeline down will cause.
In addition, once the easement was vacated, the district court should
have left any further steps (at least in the first instance) to the Corps, which is
administratively reviewing how to address the encroachment of this pipeline on
federal property. Please note that the Corps expects to complete the initial stage
of its review by October 10, 2020 (and, pursuant to this Court’s order, expects
to clarify the status of its review concerning the continued operation of the
pipeline to the district court at that time). But the district court should not have
directed the outcome of that process by ordering the pipeline to be shut down. (cite)
In conclusion - request reversal.
............................
Boy - did the DAPL case take a nasty turn after Semonite. Aren't you glad you went to med school instead of law school?
This
really blew my mind. It'll take me awhile to digest. But, there'll be
intermittant drama I'm sure. The best news in this is that Tatel was
recently overturned by the SCOTUS. That, coupled with California's
failure to provide "clean green" energy may be enough to tip rational
minds in favor of reliable energy.
............................
I
may heartily disagree with Tatel's conclusions - but what an incredible
amount of work for a blind person. Count my blessings.
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