1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff,
and CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor,
v. Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-1769 and 16-267) U.S. ARMY CORPS OF ENGINEERS, Defendant,
and DAKOTA ACCESS, LLC,
Defendant-Intervenor and Cross- Claimant.

MEMORANDUM OPINION The dispute over the Dakota Acce ss Pipeline has now taken nearl y as many twists and turns as the 1,200-mile pipeline itself. On June 14, 2017, in its third Opinion on the case, this Court held that the U.S. Army C orps of Engineers had failed to fully follow the National Environmental Protection Act whe n it determined that the pipeli ne would not have a significant environmental impact. Although t he Court found that the agencyhad “substantially complied” with the statute, the Opinion ide ntified three di screte deficie ncies in the Corps’ analysis and2 remanded the matter to the agency for further evaluation. In d oing so, the Court asked the parties to submit further br iefing on the question such an acti on raised: what is the proper remedy during this remand period? Specifi cally, the Court must determ ine whether or not to vacate the Corps’ environmental assessment, as well as the easement grante d to Dakota Access in reliance on that determination. Without such an easement, the oil canno t flow through the pipeline. The propriety of vacatur during remand is determined by a two-p rong test that requires the Court to consider (1) the s eriousness of the deficiencies i n the agency action and (2) the disruptive consequences of vacati ng that prior approval. As to the first, the Court ultimately concludes that the three errors identified in the prior Opinion are not fundamental or incurable flaws in the Corps’ original ana lysis; rather, the agency has asignificant possibility of justifying its prior determinations on rem and. Although the Court finds t hat the equities of disruption do not tip sharply in Defendants’ favor on the second factor, prev ailing on the first is enough here for them to avoid vacatur. I. Procedural History The lengthy factual history of thi s case is set forth in this C ourt’s prior Opinion, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 2017 WL 2573994 (D.D.C. June 14, 2017), and need not be repeated here. Su ffice it to say that Plaintif fs, the Standing Rock and Cheyenne River Sioux Tribes (and other interv enors and consolidated Plaintiffs), strongly oppose the current route of the Dakota Ac cess Pipeline (DAPL), a nearly 1,200-mile domestic pipeline running from North Dakota to Illin ois. In particular, the Tribes protest DAPL’s crossing at Lake O ahe, a federally regulated body of water that borders their reservations. Creat ed by the Corps in 1958 via a dam construct ed on the Missouri River, the3 Lake is a primary source of water for the Tribes, and it is con sidered sacred to their spiritual practices. Id. at * 3.
A. History of Litigation For the past fourteen months, the Tribes have attempted to prev ent oil from flowing under Lake Oahe. The instant case began on July 25, 2016, when Standing Rock filed its Complaint against the Corps fo r declaratory and injunctive reli ef pursuant to the National Historic Preservation Act, Nati onal Environmental Policy Act, C lean Water Act, and the River and Harbors Act. See ECF No. 1 ( SRST Complaint), ¶¶ 128-212. The following month, Dakota Access LLC successfully moved to i ntervene in support of the Co rps, see ECF No. 7, and the Cheyenne River Sioux Tribe inter vened as a Plaintiff, subsequen tly filing its own Complaint. See ECF No. 11-12 (CRST Complaint) . The Tribes’ first pass at preventing the pipeline was a motion for a preliminary injuncti on based solely on the NHPA, a sserting that the ongoing clearing and grading of the land a long DAPL’s route disrupted s acred Tribal sites. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock I), 205 F. Supp. 3d 4, 8–9 (D.D.C. 2016). On September 9, 2016, the Court deni ed emergency relief, and co nstruction proceeded. Id. at 37. On February 8, 2017, the Corps fin ally granted Dakota Access aneasement pursuant to the Mineral Leasing Act, author izing it to cross federal lands at Lake Oahe and complete the pipeline. See ECF No. 172-11 (Ea sement). The next day, Cheyen ne River filed a motion for preliminary injunction and an appl ication for a temporary restr aining order, this time alleging violations of RFRA. See ECF Nos. 98, 99; Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock II), 239 F. Supp. 3d 77, 81 (D.D.C. 20 17), appeal dismissed, No. 17- 5043, 2017 WL 4071136 (D.C. Cir. May 15, 2017). Believing thes e religious-freedom claims4 unlikely to succeed, the Court issued a second Opinion denying the preliminary injunction. See Standing Rock II, 239 F. Supp. 3d at 80. B. Motions for Summary Judgment As these emergency motions wer e ongoing, the parties filed cros s-motions for summary judgment. See ECF Nos. 117 (SR ST MSJ); 131 (CRST MSJ); 172 (Co rps MSJ); 185 (DA MSJ). Now focusing on their environmenta l claims, the Tribes challeng ed the Corps’ decision to issue the easement on the basis of its July 25, 2016, Environmental A ssessment (EA) and Mitigated Finding of No Significant Impact ( FONSI), asserting that the ag ency had violated NEPA by failing to complete an Environmental Impact Statement (EIS). N EPA requires that federal agencies evaluate the environm ental effects of major government actions, but it does not “mandate particular results.” Robertson v. Methow Valley Citiz ens Council, 490 U.S. 332, 350 (1989). Instead, the statute “im poses only procedural requirem ents.” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004). If a project will “significantly” affect the “quality of the human environment,” NEPA require s that the agency complete a de tailed EIS. See 42 U.S.C. § 4332(C). To determine whether or n ot there will be such signif icant effects, however, the agency first prepares a shorter EA. This “concise public document” di scusses the need for the proposal, the alternatives, the environm ental impacts of the proposed act ion, and the agencies and persons consulted. See 40 C.F.R. § 1508.9(b). If the EA concludes tha t there will be no significant environmental impact, the agenc y may forgo completing a full EI S. This was the route chosen by the Corps in this case. See ECF N os. 172-1, 172-2 (EA and FONSI). The agency’s EA and FON SI explained that, given the pr oposed mitigation measures and Defendants’ assessment of DAPL’s “anticipated environmental , economic, cultural . . . social[, and] cumulative effect s,” the pipeline’s crossing at L ake Oahe would not “significantly5 affect the quality of the huma n environment.” FONSI at 6. The Tribes argued in their briefing that “[t]he Corps’ conclusion t hat the Oahe crossing was not si gnificant enough to warrant an EIS” was “arbitrary, capricious, a nd contrary to law.” SRST MS J at 17. C. Prior Opinion and Remand On June 14, 2017, two weeks after DA PL became fully operational , the Court granted in part and denied in part the partie s’ motions and remanded certa in issues to the Corps. See Standing Rock III, 2017 WL 2573994, at *40. It rejected Plaintiffs’ mo tion with respect to their claims under the Clean Water Act and the Mineral Leasing Act, a nd it also upheld the majority of the Corps’ determinations under NEPA – including the agency’ s “top-line conclusion” that the risk of an oil spill was sufficiently low so as to not require an EIS. Id. at *12, 16. It granted the Tribes’ motion, however, with resp ect to three discrete flaws i n the Corps’ environmental analysis. The Court held that th e Corps had insufficiently add ressed: (1) the degree to which the project’s effects are likely t o be highly controversial; (2) th e consequences of a spill for the Tribes’ fishing and hunting rights; and (3) the environmental-j ustice impacts of the project. Id. at *1. Although the Court remanded t hese issues to the Corps f or further analysis, it did not decide whether the easement should be vacated pending such rema nd. Instead, it ordered the parties to submit briefing on “ whether remand with or without v acatur is appropriate in light of the deficiencies herein identif ied and any disruptive consequen ces that would result given the current stage of the pipeline's operation.” Id. at *29. This briefing is now complete, and the Court must determine whe ther or not oil may continue to flow under Lake Oah e. Although the parties dispute what, precisely, vacatur would entail, see ECF Nos. 277 (DA Re ply) at 1 n.1; 276 (Corps Reply) at 9; 280 (Tribes Sur-reply) at 1, the prior Opinion clearly state d that vacatur would require that DAPL “cease operations”6 during remand. Standing Rock III at *28. The Court therefore assumes at this stage that such a remedy would vacate the Corps’ prior EA and FONSI, as well as t he easement it granted to Dakota Access in reliance on the se determinations. Without thi s authorization, DAPL cannot lawfully continue to operate t he pipeline on federal land. II. Legal Standard Under the caselaw of this Circ uit, “vacating a rule or action p romulgated in violation of NEPA is the standard remedy.” Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001)); see Reed v. Salazar, 744 F. Supp. 2d 98, 118–20 (D.D.C. 2010) (find ing NEPA violation and ordering vacatur); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78–80 (D.D.C. 2010) (finding NEPA violation and orde ring remand with partial vacatur); Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183, 204–05, 210 (D.D.C. 2008) ( finding NEPA violation and ordering vacatur). Yet, although vaca tur is the “presumptively appropriate remedy,” it is not the only option. See Sierra Club, 719 F. Supp. 2d at 78. Instead, as equity requires, the reviewing court has discretion leave the agency action in place. See, e. g., Advocates for Hwy. & Auto Safety v. Fed. Motor Ca rrier Safety Admin ., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (remanding without vacatur); Int’l Union, Un ited Mine Workers of Am. v. Fe d. Mine Safety & Health Admin., 920 F.2d 960, 966-67 (D.C. C ir. 1990) (same). The test for whether or not a c ourt should vacate a deficient a gency action during remand comes from this Circuit’s decision in Allied-Signal v. U.S. Nuc lear Regulatory Commission, 988 F.2d 146, 150–51 (D.C. Cir. 1993). As Allied-Signal explained, “[T]he decision whether to vacate depends on the seriousness of the order’s deficiencies ( and thus the extent of doubt whether the agency chose correct ly) and the disruptive conseque nces of an interim change that7 may itself be changed.” Id. a t 150-151 (internal citation omit ted). Put otherwise, this Court must determine whether there is “at l east a serious possibility that the [agency] will be able to substantiate its deci sion on remand,” and whether vacatur will lead to impermissibly disruptive consequences in the interim. See Nat'l Parks Conservation Ass' n v. Jewell, 62 F. Supp. 3d 7, 20 (D.D.C. 2014); Williston Basin Interstate Pipeline Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008) (declining to vacate when “si gnificant possibility that t he [agency] may find an adequate explanation for its actions”) . The question for the Court today is thus whether this is the “type of case that merits departure from the presumptive remedy of vacat ur.” Pub. Employees for Envtl. Responsibility v. United States Fish & Wildlife Serv., 189 F. S upp. 3d 1, 2–3 (D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 6915561 (D.C. Cir. Oct. 31, 2016). It therefore examines the two prongs of Allied-Signal separately below, bear ing in mind that “ [t]here is no rule requiring either the pr oponent or opponent of vacatur to p revail on both factors.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 270 (D. D.C. 2015). III. Analysis A. Seriousness of Deficiencies The first prong of the Allied-Signal test requires the Court to d etermine the “seriousness” of the deficiencies in the underl ying agency action. Here, Def endants argue that the three inadequacies identified by the Court – namely, the Corps’ failu re to adequately address the degree to which the project’s e ffects are likely to be highly c ontroversial, the impacts of a spill on fish or game, and the environmental-justice impacts of a spi ll – are not signifi cant deficiencies in the agency’s prior analys is. See ECF No. 258 (Corps Brief). Noting that the Court previously rejected the majority of Plainti ffs’ challenges, Defendants con tend that there are “only a few remaining tasks for the Corps t o complete on remand” in order t o substantiate the prior EA. See8 ECF No. 260 (DA Brief) at 19. Pla intiffs, unsurprisingly, cast the Court’s Opinion in quite a different light. The Tribes asse rt that the Court granted thei r motion for summary judgment on “three grounds that go to the hear t of this dispute, and that a re fundamental to the Tribes and their treaty rights.” ECF N o. 272 (Tribes Brief) at 1. These issues, the Tribes contend, cast “considerable doubt” upon the Corps ’ decision to forgo a full E IS. See Tribes’ Sur-reply at 10. Under Allied-Signal, the severit y of an agency’s errors below turns on “the extent of doubt whether [it] chose corre ctly.” 988 F.2d at 150-51. The Court therefore must assess the likelihood that, on remand, the Corps will be able to justify i ts prior decision to issue an EA and FONSI, rather than preparing afull EIS. Such assessment looks at each issue in turn.
1. Highly Controversial The prior Opinion found that the Corps had failed to fully cons ider “the degree to which [DAPL’s] effects on the qualit y of the human environment are li kely to be highly controversial.” Standing Rock III, 2017 WL 2573994, at *13-14 (citing 40 C.F.R. § 1508.27(b)(4)). This factor must be addressed in “cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposi tion to a use.” Town of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003). Her e, the Court found that certain of the Tribes’ expert reports submitted after July 24, 2016, cr eated such a controversy and thus directed the Corps to a ddress those “scientific critiques.” St anding Rock III, 2017 WL 2573994, at *14. Plaintiffs contend that doing so on remand will requir e Defendants to “explicitly . . . find[] meritless each of the ma ny technical criticisms and supp orting data” in the expert reports. See Tribes Brief at 19. They the refore assert that the Court’s holding reflects not an “easily explained oversight,” but a “ substantial legal flaw.” Id

. at 20. Defendants feel differently. The Corps argues that, as noted in the prior Opinion, the record af ter remand may demonstrate that9 Defendants “reasonably” determin ed that the Trib es’ reports had “material flaws.” Corps Brief at 10; Standing Rock III, 2017 WL 2573994, at *14. The agency asserts, moreover, that there is a serious possibility that the 36 conditions on the existing ea sement already address any of the experts’ legitimate concerns. See Corps Brief at 10-11. The Court recognizes that the “l ack of a reasoned explanation i s a serious failing in an agency’s decision, because it l eaves the Court in doubt as to w hether the agency chose correctly in making its decision.” AARP v. United States Equal Employmen t Opportunity Comm’n, 2017 WL 3614430, at *16 (D.D.C. Aug. 22, 2017) (internal citation om itted). The question with respect to vacatur, however, is the extent of that doubt. See Allied–Signal , 988 F.2d at 150. In this case, the Court did not fi nd that the expert reports submi tted after July 25, 2016, presented an insurmountable obstacle to ju stifying the Corps’ prior EA. Rather, the Opinion stated that “[i]t may well be the case that the Corps reasonably concluded that these expert reports were flawed or unreliable and thus di d not actually cre ate any subst antial evidence of controversial effects.” Standing Rock III, 2017 WL 2573994, at *14. What wa s missing, the Court found, was that the Corps “never said as much.” Id. Correcting this flaw does not req uire that Defendants begin ane w, but only that they better articulate th eir reasoning below. Courts have declined to grant vacatur in similar circumstances, finding that agen cies should instead be “afford[ ed] a reasonable opportunity to . . . provide a reasoned explanation” of their choices. See Am. Ra dio Relay League, Inc. v. FCC, 524 F.3d 227, 242 (D.C. Cir. 2008); Heartland Reg’l Med. Ctr. v . Sebelius , 566 F.3d 193, 198 (D.C. Cir. 2009) (“When an agency may be able r eadily to cure a defect in its e xplanation of a decision, the first factor in Allied

– Signal counsels remand without vacatur.”); Black Oak Energy, LLC v. FERC., 725 F.3d 230, 244 (D.C. C ir. 2013) (declining to vacate agency action when10 “plausible that [agency] can r edress its failure of explanationon remand while reaching the same result”); Williston Basin, 519 F.3d at 504 (declining to vacate when “significant possibility that the [agency] may find an adequate explanation for its actions”) . This Court agrees. Although the Corps must give careful cons ideration to the expert critiqu es, it is well positioned to provide such explanation on remand. Indeed , addressing the degree to w hich the project is likely to be highly controversial fits square ly within the realm of those “f actual disputes” committed to agency expertise. See Wis. Valley Improvement Co. v. FERC, 236 F.3d 738, 746 (D.C. Cir. 2001) (citation omitted); FB ME Bank Ltd. v. Lew, 209 F. Supp. 3 d 299, 342 (D.D.C. 2016) (finding that the “fair likelihood that the agency will be able to make use of its expertise to justify its reliance on data and i nformation” counsels in favor of remand without vacatur). On remand, the Corps must exercise i ts judgment in analyzing Plain tiffs’ expert critiques. The Court finds a serious possibility t hat, in doing so, it will be able to substantiate the prior EA.
2. Fishing and Hunting The second deficiency identifie d in the prior Opinion was the C orps’ neglecting to properly assess the impact of an oil spill on fish and game – t wo resources protected by the Tribes’ treaty rights. Standing Rock III, 2017 WL 2573994, at *16-17. As with the first issue, Plaintiffs assert that remedying t his error will necessitate in -depth analysis through an EIS. See Tribes Brief at 21. Defendants counter that, given the minimal risk of an oil spill, there is a substantial possibility that DAP L will have “no significant imp acts” on the Tribes’ hunting and fishing rights. See Corps Brief at 11. They therefore maintai n that the Corps will likely substantiate that DAPL’s eff ects on fishing and hunting, if any , do not require an EIS. On this issue, Defendants’ t ask on remand is a narrow one. As the Court previously noted, the agency did not “whollyignore the consequences of a possible oil spill” on the Tribes’11 treaty rights. Standing R ock III, 2017 WL 2573994, at *16. Th e Corps’ analysis fell short, however, when it “stat[ed] simpl y that ‘[t]he primary issue rel ated to impacts on the aquatic environment from operation of [DA PL] would be related to a rele ase from the pipeline,’” without explaining “what those effects would be.” Id. at *17. Likewise, although the agency addressed the effects of pipeli ne constructi on on wildlife, it failed to consider the consequences of a spill. Id. These two gaps i n the Corps’ analysis were im proper under NEPA, but they are far from incurable. Although the T ribes assert that the record on remand will support the need for an EIS because it “is replete with evidence of the signific ance of these rights to the Tribe[s],” Tribes Brief at 20, the Court a lready held that NEPA does not r equire any such “ex istential-scope analysis.” Standing Rock III, 2017 WL 2573994, at *15. While the Tribes now reiterate that they place a “high importa nce . . . on hunting and fishing,” T ribes Brief at 21, the Corps on remand must take a “hard look” a t the impact of DAPL on only th e resources themselves. Here, the record shows that the a gency is well situated to conduct such an inquiry. It has already gathered information rega rding Lake Oahe’s fish and wil dlife, and it has conducted a lengthy analysis of the possible toxicity arising from various spill scenarios. See Standing Rock III, 2017 WL 2573994, at *17; ECF No. 172-1 at 58-59 (discussin g wildlife near Lake Oahe); 104 (same); 101 (discussing exposure of Lake Oahe fish to oil s pill); 47-48 (same); 45-46 (discussing potential toxic eff ects of spill). On remand, the Corps must simply connect the dots. This, then, is not a case in whic h the agency “must redo its an alysis from the ground up.” North Carolina v. EPA, 531 F.3d 896, 929 (D.C. Cir. 2008). The agency already has the data it needs to determine the impact of a spill on fish and game – indeed, i t has already concluded that “under no spill scenario would the acute toxicity threshold for aquati c organisms be exceeded.” Standing Rock III, 2017 WL 2573994, a t *17. The Corps, moreove r, will assess the significance12 of any consequences on fish and game in light of its prior dete rmination that the risk of rupture under Lake Oahe is low. See New York v. NRC, 681 F.3d 471, 478 -79 (D.C. Cir. 2012) (holding that agency “may fi nd no significant impact if . . . t he combination of probability and harm is sufficiently minimal”). The record suggests, therefore , that the Corps “may be able readily to cure a defect in its explanation of [the prior] deci sion.” Heartland Reg'l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009). Although the age ncy may ultimately conclude that this issue nonetheless requires a full EIS, the Court finds tha t there is a strong likelihood that it will instead substantiate its pr ior decision to issue an EA.
3. Environmental Justice The last issue concerns the envir onmental-justice impacts of th e Lake Oahe crossing. The Tribes challenged the selec tion of that site over an altern ative location upstream of Bismarck, North Dakota, arguing that the Corps had failed to pr operly analyze whether the current placement of the pipeline could disproportionately affe ct low-income, minority communities. See ECF 117-19 (SRST MSJ). The Court agreed. Itheld that the Corps’ “cursory” analysis did not “rea sonably support the conclusion t hat the [Standing Rock Sioux] Tribe will not be disproportiona tely affected by an oil spill i n terms of adverse human health or environmental effects.” Standing Rock III, 2017 WL 2573994, at*23. In particular, the Court cast doubt upon the Corps’ decisi on to use census tracts upstre am from the Lake Oahe site – when oil spills flow downstream – and to consider the communiti es within only a half-mile radius of the crossing, given tha t the Standing Rock Reservatio n is located .55 miles downstream. Id. at *20-21. In light of these flaws and the “m inimal” discussion of environmental justice in the EA , the Court concluded that the a gency “did not properly consider the environmental-justice implications of the project.” Id. at *23.13 Characterizing the Corps’ envir onmental-justice assessment as “ fatally flawed,” Tribes Brief at 22, Plaintiffs contend t hat a valid analysis would “in evitably conclude” that the pipeline disproportionately affects Nativ e American and low-income popul ations, and thus would “yield a different outcome on the core ques tion of whether an EIS is required.” Id. at 23. Defendants, of course, disagree, rejoining that “given the low risk of an oil spill, it is unlikely that . . . a different buffer and environmental justice analysis” will yield a new res ult on remand. See Corps Brief at
10. Although it is a closer call than the first two issues, the Cou rt concludes that the flaws in the Corps’ environmental-just ice analysis do not support vacatu r. The agency’s action was not, in this case, so lacking as t o cast serious doubt on its decisi on to issue an EA. The prior Opinion explicitly stated that the Corps “need not necessarily have add ressed” each concern raised by the Tribes, but only that it must “o ffer more than a bare-bones con clusion that Standing Rock would not be disproportionately harme d by a spill.” Standing Rock II I, 2017 WL 2573994, at *23; see Sierra Club v. FERC, 867 F.3d 1357, 1370 (D.C. Cir. 2017) (hold ing that the “goal of an environmental

- justice analysis is satisfied if an a gency recognizes and discusses a project's impacts on predominantly-minorit y communities”); Latin American s for Soc. & Econ. Dev. v. Adm'r of Fed. Highway A dmin., 756 F.3d 447, 477 (6th Cir. 2014) (noting that “[e]nvironmental impacts and environmental justice issues are a consideration in agency decision making, but are not controlling”). Although the Corps must provide a more robust analysis on rem and, there is reason to think that, in doing so, i t has a substantial possibi lity of validating its prior conclusion. Indeed, contrary to the Tribes’ statement that a finding of a disproportionate impact would necessitate an EIS, the rel evant agency guidance expressl y contemplates the use of an EA to address such concerns. See ECF No. 117–19 (CEQ, Environment al Justice Guidance Under14 the National Environmental Policy Act, Dec. 10, 1997) at 15 (“W here a potential environmental justice issue has been identified by an agency, the agency shou ld state clearly in the EIS or EA whether, in light of a ll the facts and circumstances, a disprop ortionately high and adverse human health or environmental impact on . . . Indian tribe[s] is like ly to result from the proposed action.”) (emphasis added). As a result, even if Defendants di d conclude on remand that a crossing at the Lake Oahe site may disproportionately affect mi nority or tribal populations, such an outcome would not compel the Co rps to alter its prior decisi on to issue an EA and FONSI. Additionally, multiple aspects of the record suggest that the C orps is likely to justify issuing an EA, rather than com pleting an EIS. First, as with t he hunting-and-fishing analysis, the minimal risk of an oil spill under Lake Oahe reduces the likeli hood that the project will have a significant impact on the surrounding communities. See Sierra Club, 867 F.3d at 1369 (upholding environmental-justice analysis when agency concluded , in part, that “the project would not have a ‘high and adve rse’ impact on any population, m eaning, in the agency’s view, that it could not have a ‘dispr oportionately hi gh and adverse’ impact on any population, marginalized or otherwise”); Alle n v. Nat'l Institutes of Healt h, 974 F. Supp. 2d 18, 47 (D. Mass. 2013) (upholding environmental-jus tice analysis when project wa s located in area with larger low-income and minority populations, but agency concluded that “the likelihood of [adverse effects] is extremely low”). Second, the impact of any such spill , if it were to occur, is i n part mitigated by the relocation of the Standing Rock wat er-intake structure. The ne w structure is situated approximately 50 miles further downstream from the Lake Oahe cr ossing than the old site, and it is outside even the furthest ra dius suggested by Standing Rock as appropriate for evaluating the environmental-justice impacts of the pipeline. See Standing Ro ck III, 2017 WL 2573994, at15 *19; ECF No. 117–24 (Memorandum from Dav id Cooper, Chief Counsel, Co rps, Oct. 20, 2016)
at 19 . Plaintiffs assert that the old i ntake structure is still in operation, see ECF No. 272-3 (Third Decl. of Dave Archambault, II), ¶ 10, but they cannot dispute t hat the new site will mitigate at least some of their concerns reg arding the relative impact of a spill on the Tribes’ drinking water. Finally, the Corps’ already-c onducted assessment of the alterna tive pipeline route through Bismarck increases the likelihood that the agency will find that DAPL’s environmentaljustice impacts do not require an EIS. Under NEPA, the conside ration of such alternative routes is relevant to the Corps’ envi ronmental-justice review on reman d, as the statute requires only that the agency “grapple[] with the d isparate impacts of the various possible pipeline routes.” Sierra Club, 867 F.3d at 1369. As the CEQ guidance states, “Th e identification of a disproport ionately high and adverse human health or en vironmental effect on a[n] . . . Indian tribe does not preclude a proposed agency action from going forward, nor does it necess arily compel a conclusion that a proposed action is environmentall y unsatisfactory.” CEQ at 10. “Rather, the id entification of such an effect should,” inter alia , “heighten agency attention to alternatives (including alternative sites).” Id. As the prior Opinion discussed, t he alternative Bismarck crossi ng would pass much closer to a drinking-water intake than the Lake Oahe location d oes. See Standing Rock III, 2017 WL 2573994, at *18-19; ECF No. 209–16 a t 5 (Memorandum from Tom Siguaw, Dakota
Access , & Steve Rove, HDR E ngineering, Apr. 12, 2016). The two water intakes downstream from the Bismarck site serve 84,504 people, while those downstr eam from the Oahe intakes serve 8,037. See Standing Rock III, 2017 WL 2573994, at *18-19 . Risks presented to this tenfold increase in population m ust, of course, be considered w hen the Corps evaluates the environmental-justice impacts, if any, of the Lake Oahe crossin g. See Sierra Club, 867 F.3d at16 1371 (noting that, in conducting its environmental-justice anal ysis, agency “also considered four route alternatives . . . but reje cted them all, mainly on the g round that they would have had a greater overall impact on residen ces and populated areas”); Lat in Americans for Soc. & Econ. Dev., 756 F.3d at 477 (finding that ag ency took requisite hard look at environmental-justice issues when it consid ered alternatives to avoid or minimize dis proportionately high adverse impacts and “reasonably deter mined its priorities based on all the comparative information available”). Under NEPA, an agency is “ not required to select the course of action that best

serves environmental justice , only to take a ‘hard look’ at environmental justice issues.” Sierra Club, 867 F.3d at 1368; see Latin Americans for Soc. & Econ. De v, 756 F.3d at 476 (“Just as the [agency] is not required to sel ect an alternativ e with the leas t environmental impact under NEPA , the [agency] is not required to s elect an alternative with the least environmental justice impact.”). The Court finds that there is a substantial possibility that th e Corps will meet this standard on remand and will substantiate its prior decision to proceed with the Lake Oahe crossing without
an EIS. In reaching this decisi on, however, the Court does not seek to minimize the importance of the Tribes’ environmental-just ice concerns. The purpose of thi s analysis under NEPA is to ensure that the government properly accounts for the “interrela ted cultural, social, occupational, historical, or economic factors that may amplify the natural an d physical environmental effects” of agency actions. See CEQ Guidance at 9. There is no doubt t hat our nation’s history is replete with examples of Native Ameri can tribes bearing the brunt of go vernment action. See ECF No. 270-1 (Brief of Amici Curiae Great Plains Tribal Chairmen’s Association, et al .) at 6-8. And Chairman Archambault is eloquent on why the Tribes believe that this pipeline embodies another transgression. See Archambault Decl., ¶¶ 12-20. Yet the Court ’s role here is not to determine17 the wisdom of agency action or to opine on its substantive effe cts. See Robertson, 490 U.S. at 351 (holding that “NEPA merely pr ohibits uninformed - rather th an unwise - agency action”). Instead, it must consider only t he Corps’ likelihood on remand of fulfilling NEPA’s procedural environmental-justice requireme nts and justifying its prior dec ision.

* * * In cases in which the agency’s r easoning is “so crippled as to be unlawful,” vacatur is generally the appropriate reme dy. See Radio-Television News Di rectors Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999). If, however , the action is “potenti ally lawful but insufficiently or inappropriately explained,” remand without vacatur may instead be imposed. Id. As is evident from the discussion above, this case falls withi n the latter ca tegory. Here, the Corps’ decision to produce only an EA, rather than a n EIS, is “potentially lawful. ” The errors below were substantial, but they do not pres ent fundamental flaws in Defen dants’ reasoning. Although Plaintiffs contend that the i ssues on remand go to the “heart” of their opposition to this project, see Tribes Brief at 1, the question for vacatur is not the impo rtance of the issue, but the extent of the error. Here, the Court canno t say that the deficiencies inthe prior EA and FONSI are “crippling” flaws in the Corps’ analysis. The Court previously found that the Corps “largely complied” with NEPA’s require ments, and it granted remand on on ly a narrow subset of the Tribes’ NEPA claims. See Standing Rock III, 2017 WL 2573994, at *28. The lengthy procedural history of this case s hows, moreover, that there has been nothing hasty about the Corps’ decisionmaking thus far . There is no reason to think th at it will be any less thorough in analyzing the three deficienci es on remand. In light of the ag ency’s substantial compliance with NEPA, the Court finds that that the Corps has a significant lik elihood of being able to substantiate its prior conclusions and determines that the firs t prong of the Allied-Signal framework thus counsels in favor of remand without vacatur.18 B. Disruptive Consequences The second consideration in dete rmining whether to remand witho ut vacatur is “the disruptive consequences of an int erim change that may itself be changed.” Allied-Signal , 988 F. 2d at 150–51; see Conservati on Law Found. v. Pritzker, 37 F. Su pp. 3d 254, 271 (D.D.C. 2014). On this issue, the parties have much to say about the disruptio n, or lack thereof, that will result if the Court vacates the Corps’ pr ior decisions. As discussed bel ow, the Court concludes that this factor weighs only slightly in f avor of remand without vacatur.
1. Direct Disruption Defendants and their amici spend much of their briefing s pelling out what they believe are potentially dire economic consequences of vacatur. Dakota Access, for example, asserts that if the pipeline is paused, North D akota’s oil producers will fa ce severe costs and delays. See DA Brief at 14; ECF No. 279 ( Amici Curiae Brief of American Fuel and Petrochemical Manufacturers) at 6 (stating that “direct financial impact” of taking DAPL out of service “would be staggering”). The company cont ends that other pipelines, re fineries, and downstream users of the oil currently transported i n DAPL would also “suffer greatl y” and would be forced into “emergency arrangements” to compensate for the shutdown. See D A Brief at 14. The impact of vacatur, Dakota Access posits, would place in peril the jobs of all those currently involved in DAPL’s operations and would preven t Dakota Access from being ab le to perform the contracts it has entered into with producer s. Id. at 18. Defendants assertthat such a halt in pipeline operations would also deprive sta te and local governments of mi llions of dollars in tax revenue and would undermine new industrie s that support DAPL operations . See Brief of American Fuel Manufacturers, et al. at 8, 10. Finally, Defendants ar gue that these effects would be passed on to consumers, claiming that the disr uptive market effects of vacatur would have “significant ripple19 effects.” DA Brief at 15. In tot al, Dakota Access declares th at issuing vacatur in this case would incur costs of hundreds of millions of dollars. Id. at 18. The Tribes contest both the accu racy and the relevance of Defen dants’ economic concerns. As to the former, P laintiffs have submitted declarat ions asserting that “DAPL revenues” are likely “substantia lly less than indicated” by Def endants and stating that a DAPL shutdown “will not result in the s evere disruptions claimed by the Corps and Dakota Access.” ECF No. 272-5 (Declaration of Ian Goodman), ¶¶ 41, 43. They th erefore argue that the company’s claims “regarding lo ss of revenues an d other potentia l impacts of a DAPL shutdown should not be relied upon to determ ine the likely impacts” of v acatur. Id., ¶ 41. As to the latter, the Tribes question whether “fina ncial impacts” carry “much or even any weight” when evaluating the second Allied-Si gnal factor in NEPA cases. See Tribes’ Brief at 25. As an initial matter, the Court rejects Plaintiffs’ suggestion that it should wholly disregard the potential for fin ancial disruption. Although thi s perspective has been suggested in at least one district court d ecision, see Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948, 953 (N.D. Cal. 2010), it is clear that courts in this Circuit have repeatedly considered the economic implications of vacatur – including in cases addressing environ mental harms. See Am. Water Works Ass'n v. EPA, 40 F .3d 1266, 1273 (D.C. Cir. 1994) (declin ing to vacate rule addressing lead in drinking water in pa rt because “vacatur would be unnece ssarily disruptive to the [affected] industries”); Sierr a Club v. U.S. Dep't of Agric., R ural Utilities Serv., 841 F. Supp. 2d 349, 363 (D.D.C. 2012) (NEPA decisi on considering potential “su bstantial financial loss if the Court were to vacate” under second Allied-Signal prong); Friends of the C apital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 60 (D.D.C. 2016) (a cknowledging that “delay in [agency] project could impose si gnificant financial costs”); s ee also California Communities20 Against Toxics v. U.S. EPA, 688 F.3d 989, 993–94 (9th Cir. 2012 ) (declining to vacate in part because stopping construction of power plant would be “economic ally disastrous”). That the Court will consider Def endant’s allegations of financi al harm does not, however, mean that it will necessarily giv e determinative effect to such claims. Defendants’ cri de coeur over lost profits and industrial i nconvenience is not fully con vincing. Such is the nature of doing business, especially in an area fraught with bureaucracy and li tigation. Dakota Access began pumping oil into the pipeline wi th full knowledge that Plaintif fs were contesting the easement allowing them to do so. By nonethel ess proceeding with its ven ture, the company assumed some risk of economic disruption. S ee ECF No. 259-2 (Declaration of David Murk), ¶ 8 (stating that impact of vacatur would not have be en severe “had DAPL not begu n operations in June 2017”). There is, moreover, some cause f or skepticism regarding Dakota Access’s predictions of economic devastation. This is not the first time the company h as staked out this position – it previously claimed that delays in the pipeline would have disas trous economic effects. During the first preliminary-injunc tion briefing, the company warned t hat contracts for DAPL could be canceled if it was not able to sta rt delivering oil by January 1, 2017. See ECF No. 22-1 (Declaration of Joey Mah moud, Aug. 18, 2016), ¶¶ 69-70. Yet th e pipeline did not come on line until June, and no apparent calamity ensued. See ECF 277-12 (S econd Declaration of Lee Hanse), ¶ 4 (stating that “no cont racts have been renegotiated or terminated”). The Court thus cannot conclude that, in the case of a halt in DAPL operations, the company would have no alternative option. The empirical basis for Defendant s’ assertion th at vacatur woul d have catastrophic economic effects is, additionall y, sharply contested by the Tri bes. See Goodman Decl., ¶¶ 43- 48, 75 (asserting that impacts to e nergy systems and market due to vacatur would likely be21 “small to very small”). Indeed, it is unclear from the current record how much oil is even flowing through the pipeline at t his time. Compare id., ¶¶ 19- 25 (stating that DAPL appears to be operating at partial capacity ) with DA Brief at 13 (claiming that DAPL carries equivalent of 500,000 barrels per day) with DA Re ply at 6 (citing figure of 3 00,000 barrels per day). The parties ask the Court to wade in to this war of the crude-oil ex perts. Yet, becaus e it declines to rely heavily on economic impact a s a justification for issuing vacatur, the Court need not resolve this factual dispute. See Pub. Employees for Envtl. Responsibility, 189 F. Supp. 3d at 3 (stating that “absent a strong showi ng . . . that vacatur will unduly ha rm economic interests . . . [,] the Court is reluctant to rely on economic disruption” in denying v acatur). Beyond the data, there are broader concerns with Defendants’ ec onomic claims. Dakota Access and its amici focus almost exclusively on the financial and industrial impli cations of a temporary DAPL shutdown. In doing so, they address the “potent ially disruptive effects of vacatur as if they occur in a vacuum,” thus giving short shrift to the “potentially disruptive effects that could flow from rem and without vacatur.” Friends of the Capital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 60 (D.D.C. 2016). Her e, there is no doubt that allowing oil to flow through the pipeline during remand risks t he potentially disr uptive effect about which the Tribes are mo st concerned – a spill under Lake Oahe. The likelihood of any such rupture may be low, but paus ing the operation of the pipel ine would mitigate even this small risk. By emphasizing the financial impacts of vacatur, D efendants ignore the “devastating” consequences that the Tribes allege could result from remand without such a remedy in place. See Archambault Decl., ¶ 10-11. This economic myopia ignores the fact that the po ssible effects of an oil spill on the Tribes’ treaty rights and communities were at the center of thi s Court’s prior Opinion. See22 Standing Rock III, 2017 WL 2573994, a t *10. Defendants unfairl y downplay these concerns. Indeed, the Corps alleges that “loss of life is notably absent from Plaintiffs’ discussion of potential worse-case spills.” C orps Reply at 8. Yet one need only refer to the Tribes’ declarations to see that they do, i n fact, assert that such dra stic harms could flow from a spill under Lake Oahe. See ECF Nos. 1 17-16 (Declaration of Jeff Kell y), ¶¶ 5-9 (stating that many Tribal members rely on hunting a nd fishing to survive); 272-3, Exh. B (Letter from Dave Archambault to Acting Assistan t Sec. Lamont and Colonel Henders on) at 4 (discussing serious, life-threatening heal th and safety consequences of potential oi l spill); 131-4 (Declaration of Harold Frazier) (stating that w ater shortage on reservation pre viously caused “death of four children in a house fire” due to ins ufficient water supply for firefighting). Although the Court acknowledges the potential for economic disruption, these inter ests do not inherently trump the risk of environmental disrupti on if vacatur is withheld. See Pub. Employees for Envtl. Responsibility, 189 F. Supp. 3d at 3 (s tating that it is “not c lear that economic concerns are as relevant in an environmenta l case”) (emphasis added). The Court notes, moreover, tha t denying vacatur on the basis of alleged economic harm risks creating undesirable incentiv es for future agency actions . If projections of f inancial distress are sufficient to prevent vacatur, the Court fears that agencie s and third parties may choose to devote as many resources as earl y as possible to a challenged p roject – and then claim disruption in light of such investments. S uch a strategy is contrary to t he purpose of NEPA, which seeks to ensure that the government “look s before it leaps.” ECF No. 26 9-1 (Brief of Amici Curiae of Law Professors and Practitione rs) at 5. Finding that vacatur’s alleged financial harms are dispositive under the second prong of Allied-Signal may encoura ge agencies to instead act first and ask later. In sum, although the Court concludes that there is likely to be some economic23 disruption from vacatur, this factor does not weigh heavily in Defendants’ favor under the Allied-Signal test. 2. Alternative Transport In addition to asserting that vaca tur would have devastating ec onomic effects, Defendants also argue that such a remedy would not, in fact, ameliorate Pl aintiffs’ concerns during the remand period. Dakota Access contends that, if vacatur is gran ted, the oil currently flowing through the pipeline will be re- routed onto trains. See DA Bri ef at 15-16. The company states that this form of transport invo lves a greater risk of accident s and thus argues that vacatur would put the Tribes in more environmen tal peril than the current sta tus quo. Id. Plaintiffs dispute both the facts and the premise of this position. The Tribes contend that there is little data supporting the proposition that train tran sport would be used in lieu of D APL. They point instead to expert reports stating that, if DAPL we re shut down, “much of” the cru de currently flowing under Lake Oahe would “shift back to . . . other pipelines, rather than to rail.” Goodman Decl., ¶ 62. The Tribes also contest the relative safety of the two modes of tra nsport, referring t o their expert’s conclusion that it is “incorrect to state that pipelines are ‘u ndeniably safer’ than rail,” and that pipelines such as DAPL are “cap able of releasing substantially more oil than trains.” Id., ¶¶ 87- 88. Examining the respective rout es and capacities of train li nes and DAPL, the report concludes that, for the Tribes, “DAPL has [a] . . . much greater risk tha n does crude by rail.” Id., ¶ 114. Finally, the Tribes contend tha t Defendants miss the mark by re lying upon the overall risks presented by train transport ve rsus pipelines. Instead, Plaint iffs contend that the Court should concern itself solely with the r isk to the Tribes from DAPL and its current crossing at Lake Oahe. See Tribes’ Sur-reply at 15.24 In considering the transport question, both parties acknowledge that this Circuit has

“ previously remanded without vacatur . . . if vacating ‘would at least temporarily defeat . . . the enhanced protection of the environmental values covered by [the statute at issue].’” Ctr. for Biological Diversity v. Envtl. Prot. Agency, 861 F.3d 174, 188 (D.C. Cir. 2017) . In Davis Cty Solid Waste Mgmt. v. US EPA, 108 F.3d 1454 (D.C. Cir. 1997), fo r instance, this Circuit found emissions guidelines to be lega lly inadequate, but declined to vacate them during the remand process because “greater po llution emissions would occur” witho ut leaving the guidelines in place. Id. at 1459-60. Similarly, in American Farm Bureau Fed eration v. EPA, 559 F.3d 512 (D.C. Cir. 2009), the court remanded but did not vacate a deficient agency stand ard governing air pollutants, reasoning that “ vacating a standard because it ma y be insufficiently protective would . . . mak[e] the best an enemy of the good.” Id. at 528. Put otherwise, this Ci rcuit has recognized that, at times, a flawed agency action is better than no action at all. Yet this is not such a case. O n this record, Defendants have f ailed to persuade the Court that transport by train is signi ficantly more dangerous than al lowing oil to continue to flow beneath Lake Oahe. The record contains no concrete figures or substantiated studies regarding the risks presented by rail transportation versus DAPL’s Lake O ahe crossing. Instead, the Court is left with vague projections s uch as Defendants’ assertion th at vacatur “could res ult in at least some portion” of the oil being m oved via train and their broad claim that rail transport “poses a higher accident risk” than the us e of pipelines. See Corps Bri ef at 13 (emphasis added). These forecasts do little to assure the Court that vacatur would in f act put the environment in any greater peril. See Pub. Employees for Envtl. Responsibility, 1 89 F. Supp. 3d at 3–4 (granting vacatur when agency’s forecasted harms were imprecise or specul ative). Plaintiffs and one
amicus for Defendants, moreover, cas t doubt on whether the oil curren tly flowing through the25 pipeline would, in fact, be re-r outed onto rail. See Brief of Am. Fuel Manufacturers, et al . at 10; Goodman Decl., ¶ 62 (stating that m ost oil would be transferred to other pipelines ). Given that it is not “guaranteed that . . . pr oducers or shippers would choo se in the near term to ship oil on transportation modes other than DAPL,” Defendant’s argument is speculative at best. See Brief of Am. Fuel Manufacturers, et al . at 10. What is clear is that accidents and spills, however they may oc cur, have the potential to wreak havoc on nearby communities and ecosystems. The effects that concern the Court today are not general environmental ones throughout the Midwest, but those that may result from this pipeline in this location at L ake Oahe. Those are the impacts that the Court found were insufficiently addressed by the C orps, and those are the impact s that Plaintiffs fear during the remand period. For this reason, and because the Court does notfind that altern ative modes of transport required by vacatur, if any, will necessarily increas e the risk of an oil spill, it rejects this argument against vacatur.
3. Other Considerations The Corps also attempts to ar gue that vacatur here would “have greater disruptive consequences than in the typica l NEPA case” because the pipelin e has already been completed. See Corps Brief at 12. The agency contends that vacatur is the standard remedy in NEPA cases only when it would affect the “pr ospective application of rules or agency actions,” rather than situations in which the challe nged outcome has already gone int o effect. Id. Plaintiffs counter that this distinction finds little footing in the facts of the case. See Tribes Sur-reply at 5-6. The Tribes have the better of t his dispute. Although construct ion is complete and oil is flowing, Plaintiffs are not aski ng for the pipeline itself, or for any existing infrastructure, to be dismantled. Id. at 2. Instead, the ir concerns in this case, a nd the deficiencies identified in the26 prior Opinion, involve the risks presented by the continued pas sage of oil under the Lake. This is clearly an ongoing, and prosp ective, event. This is thus no t a case in which “[t]he egg has been scrambled and there is no apparent way to restore the status quo ante.” Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (rem anding in lieu of vacating agency action where agency had a lready administered program dis bursing large qu antities of sugar to farmers who had alrea dy plowed under their crops). Th e oil may currently be flowing, but Defendants do not dispute th at it could be stopped. Althou gh courts have declined to vacate improper agency actions when doing so would be an “invitation t o chaos,” id. at 97, in this case vacatur would be, at most, an inv itation to substantial inconve nience. Contracts may have to be renegotiated and alternative modes of transportation found, but there is no indication in the record that Defendants’ actions under the improper EA cannot be undone. Finally, the Corps’ assertions r egarding the timing of the rema nd process are also relevant to analyzing the disruption in t his case. The agency now state s that it anticipates completing its independent review and analys is of the remand issues by April 2 018, which is several months after its initial estimate. S ee ECF No. 281 (Notice of Revised Schedule); Corps Brief at 1. This timeline aids both parties’ positi ons with respect to the impac t of vacatur. On one hand, the multiple-month period of review inc reases the risk that a spill will occur prior t o the new analysis and thus strengthens the Tribes’ assertion that such an inciden t could occur during the remand process. On the other hand, thi s timing also supports Defendan ts’ position that vacatur would have severe disruptive effect s. To vacate the easement during the remand process would stop oil from flowing under Lake Oahe fo r at least six months – an inter ruption that could cause significant harms to numerous pe ople and entities. The remand period thus supports both sides’27 arguments regarding the real-wor ld impact of the Court’s choice today, but does not dictate the outcome either way.

* * * The second prong of Allied-Signal, consequently, does not couns el strongly in favor of remand without vacatur. It is und eniable that stopping the flo w of oil beneath Lake Oahe will have some disruptive effect, but all the considerations on this prong tip only narrowly in favor of Defendants. Because the Court has concluded that the Corps’ er rors are likely to be cured under the first prong, it need not de fine the precise scale of the po tential disruption. This is because in circumstances in which the first prong of Allied-Signal supports remand without vacatur, the second prong “is only barely relevant.” Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1049 (D.C. Cir. 2002), opinion modified on reh’g, 293 F.3d 537 (D.C. Cir. 2002). In those instances, “though the disruptive consequences of vacatur might not be great, the probability that the [agency] will be able to jus tify retaining [its prior decis ion] is sufficiently high that vacatur . . . is not appropriate.” Id. This is such a case. The C ourt therefore need not rely up on disruption in deciding that vacatur is not the appropriate outcome. C. Other Relief In their briefing the Tribes reque st that, if the Court decline s to vacate, it instead impose a series of conditions on the con tinued operation of DAPL under L ake Oahe. Defendants, in their response, do not address the mer its of these proposed remedies; rather, they assert only that the Court lacks jurisdiction to enter such an order. See Corps Bri ef at 4. This is not so. A reviewing court may craft relief as equity requires. W. Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (“[A] reviewing court has discre tion to shape an equitable rem edy.”); Montana Wilderness Ass'n v. Fry, 408 F. Supp. 2d 1032, 1034 (D. Mont. 2 006) (“The district court’s equitable powers are broad, and it is within the court's author ity to fashion a remedy that fits the28 particular facts of the case befo re it.”); Sierra Forest Legacyv. Sherman, 951 F. Supp. 2d 1100, 1106 (E.D. Cal. 2013) (“Vacatur is cl early a form of equitable relief that the Court may award, withhold, and craft to fit the ci rcumstances of the case before it.”) (emphasis added); Conservation Cong. v. United Sta tes Forest Serv., 2017 U.S. Dis t. LEXIS 82440, at *9 (E.D. Cal. May 26, 2017) (finding NEPA violati on, declining to vacate agen cy decision, but enjoining Defendants from “removing any trees with 20 inches [diameter at breast height] or greater in implementing the Project”). Because Defendants should have an opportunity to express their views on the substance of Plaintiffs’ requests, the Cour t will permit abbreviated furt her briefing on this issue.
IV. Conclusion In light of the “serious possibi lity” that the Corps will be ab le to substantiate its prior conclusions, the Court finds tha t vacatur is not the appropriat e remedy in this case. That determination does not, however, excuse Defendants from giving serious consideration to the errors identified in this Court’ s prior Opinion. Compliance wi th NEPA cannot be reduced to a bureaucratic formality, and the Cour t expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc. After the agency’s furthe r work on remand, the parties may well disagree over the suffi ciency of its c onclusion. If a nd when such a dispute arises, they will again have the opportunity to address whether Defendants h ave in fact fulfilled their statutory obligations.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 11, 2017