Vermont Law Top 10 Environmental Watch List 2017

Dakota Access Pipeline: The Calm Between the Storms

Summary:
Scholars provide clarity on the litigation surrounding the Dakota Access Pipeline and the U.S. Army Corps of Engineers' December 2016 announcement.
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Protesters’ encampment near Cannon Ball, N.D. PHOTO: The Wall Street Journal; Lightrocket via Getty Images

The Dakota Access Pipeline (DAPL) controversy has captivated the nation’s attention during the final months of 2016, shocking many in the environmental community, and highlighting issues of environmental justice that still plague Indian Country. Even seasoned legal scholars and commentators have struggled to predict what legal maneuvering is yet to come, as it sometimes seems unclear which of the three branches of the federal government has authority over this matter, or how many, what permits are required, and whose side the law is on. On December 4, the Army Corps of Engineers (which is the agency that issues federal permits for the Missouri River crossings required to complete the pipeline) issued a statement that it would not grant the final federal easement approval to allow the pipeline construction under the Missouri River because more analysis of environmental consequences and tribal “treaty rights” is required. Yet, the company building the pipeline, Dakota Access, has filed motions in federal district court arguing that no further federal approval is needed. As the world’s eyes turn away from the Standing Rock Sioux Reservation, and the proposed oil and gas pipeline crossing sacred land and waters within half a mile of the Tribe’s reservation, people should be aware that the battle over DAPL is far from over.

The source of the continuing controversy is a thousand-plus mile pipeline that would bring half a million barrels of oil per day past the Reservation en route from the Bakken oil fields of northern North Dakota to refineries located in Illinois. Although approximately 99% of the pipeline has been constructed, the Tribe has strenuously objected to further construction in the immediate vicinity of the Reservation because the Army Corps of Engineers’ permitting process excluded them from critical consultations about the impacts of the pipeline on the tribe’s sacred sites in and around Lake Oahe. Because the pipeline’s route does not cross the Reservation, but merely skirts close to it, the tribe has essentially no authority to prevent it from being completed. The only legal means by which the tribe can voice these objections is through the consultation process under the federal statutes authorizing the Army Corps to permit or deny the construction. When the tribe was excluded from critical pre-approval discussions with the Corps, it sued in federal court. In its complaint, the Tribe asserted that its “environmental and economic well-being, and . . . great historic, religious, and cultural” resources, were being sacrificed at the altar of profit, income, and taxes.[1]

Simultaneously with the filing of the litigation, many tribes joined the Standing Rock Sioux at the site of the proposed crossing to protest the construction. White Bull of the Standing Rock Sioux Tribal Council told the Washington Post in September that “[T]he people [are] here to help us. . . . [T]he Indian Nations heard us. It’s making us whole. It’s making us wanyi oyate—one nation.”[2] President Obama even interceded to request a temporary stay on construction. However, shortly after his public remarks, a federal district court ruled that legally, construction could proceed. The tribe appealed this decision, and the D.C. Circuit Court of Appeals halted construction once again. However, and confusingly, the appeals court changed it mind less than a month later, allowing construction to resume, while also indicating that it would hear the tribe’s appeal over the consultation issue. The D.C. Circuit appeal has not been dismissed as of press time, despite the Army Corps’ December 4 statement. In addition, there is a separate action pending in federal district court over Dakota Access’s claim that it already has the required approvals. To add to this confusion, there have been rumors that Dakota Access is proceeding with construction.

Separate from the litigation, though, are questions about environmental and social justice, energy development, and tribal treaty rights. Oil and gas pipelines are a particular threat on all fronts, having caused many recent disastrous discharges of oil and given their proximity to so many Indian reservations.[3] Indeed, records show North Dakota’s pipelines leaked over 300 times in two years.[4] Yet, according to environmental groups, the current permitting structure “is being used to rubberstamp oil pipelines.”[5] Under the energy platform of the incoming Trump Administration, these threats are likely to ratchet up exponentially.

If past is prologue, the turbulent history of the DAPL portends future conflicts, both in court and on the ground. The Army Corps of Engineers holds ultimate authority pursuant to its permitting authority under the CWA and the Mineral Leasing Act. The water protectors have a voice too – and it is possible that they might return and demand a pipeline re-route from the incoming administration. It is also possible that the tribe’s treaty rights preclude routing the pipeline across the Missouri River altogether.   Until the Army Corps’ finishes its evaluation under the National Environmental Policy Act, though, all parties are operating in the blind.

 

[1] Complaint for Declaratory and Injunctive Relief, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2016 WL 4033936 (D.D.C.).

[2] Showdown over oil pipeline becomes a national movement for Native Americans, Washington Post, Sept. 7, 2016.

[3] In Re: Dakota Access, LLC, HLP-2014-0001, 2016 WL 943929, at *27 (Mar. 10, 2016)

[4] Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2016 WL 4033936 (D.D.C.)

[5] Groups appeal directly to Obama on Corps’ use of Nationwide Permit 12, 2016 WL 4485619.