Shale Law in the Spotlight: Dakota Access Pipeline - Current Legal Developments

Recently, protests against the Dakota Access Pipeline have received a tremendous amount of media coverage.  The legal underpinnings to this dispute, however, have received substantially less attention.  Understanding these legal issues helps to provide insight into the process through which the larger issues surrounding the construction of this pipeline may be resolved.  This blog post will review the specific recent legal developments relating to the Dakota Access Pipeline construction.

The Dakota Pipeline Access is a 1,172-mile project managed by Dakota Access, LLC, a subsidiary of Energy Transfer Crude Oil Company, LLC. The pipeline is intended to transport domestic produced crude oil from the North Dakota Bakken region through South Dakota and Iowa into existing pipelines in Illinois. The quarrel in question arose over the potential negative environmental and cultural impacts of the pipeline construction on the Standing Rock Sioux Tribe’s historic land and properties.

On July 25, 2016, the Corps of Engineers granted permits authorizing the construction of the Dakota Access Pipeline. Two days later, the Standing Rock Sioux Tribe, a tribe from North Dakota and originally established as part of the Great Sioux Reservation, sued the U.S. Army Corps of Engineers in the U.S. District Court for the District of Columbia for declaratory and injunctive relief, claiming that the Corps of Engineers’ permits were granted in violation of multiple federal statutes, including the Clean Water Act, National Historic Preservation Act, and National Environmental Policy Act.

Among the main arguments presented in the complaint, the Sioux Tribe alleged that the Corps of Engineers did not properly initiate the Section 106 process of the National Historic Preservation Act, necessary to determine whether the pipeline construction may affect historic properties and federally regulated waters on the Tribe’s land. In addition, the Tribe pointed out that the Corps of Engineers did not take the responsibility to consult with the appropriate Tribal Historic Preservation Officer in identifying sites of cultural significance nor did it consider the indirect effects to historic sites in uplands. As a result, the Tribe argued that the Corps of Engineers “failed” to issue Nationwide Permit 12 of Section 404 of the Clean Water Act.

Another important claim is that the Corps improperly determined the “area of potential effects” for the Lake Oahe, a reservoir located in the northern part of the Missouri River in South Dakota. The complaint states that “the Corps defined the APE for the Lake Oahe crossing unlawfully narrowly, and inconsistently with both the [Advisory Council on Historic Preservation] regulations and its own guidance.” The Sioux Tribe draws attention to the fact that “an oil spill from the pipeline into Lake Oahe would cause an economic, public health and welfare, and cultural crisis of the greatest magnitude.”

Furthermore, the Sioux Tribe alleged that the Corps of Engineers did not correctly evaluate the pipeline project as a whole in regards to the National Environmental Policy Act. Indeed, the Corps purportedly did not comply with the NEPA regulations stipulating that the segmentation of associated components to a single project in different environmental impact statements is unlawful. The Tribe pointed out that “the Corps looked very narrowly at only two tiny segments of the pipeline, ignoring the environmental and economic risks and harms of the pipeline as a whole. However, it balanced these narrow risks and harms against the full economic benefit of the pipeline as a whole.”

On August 4, 2016, the Tribe filed a motion for preliminary injunction to halt the pipeline construction and asked for the revocation of the Corps of Engineers’ Nationwide Permits 12 as applied to the Dakota Access Pipeline as well as NWP verifications allowing the discharge of fill materials into waters of the United States “at 204 sites along the pipeline route.” Following the destruction by Dakota Access, LLC, of recently discovered sacred sites and burial grounds along the pipeline route, near Lake Oahe, the Standing Rock Sioux Tribe filed an emergency motion for a temporary restraining order on September 4, 2016, saying that “the loss of these sites causes incalculable harm to the Tribe.”

On September 9, 2016, the United States District Court for the District of Columbia denied the Sioux Tribe’s motion for Preliminary Injunction stating that “the Tribe has not demonstrated that an injunction is warranted here” but, however, declared that “aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care.” Interestingly, on the same day, the U.S. Department of Justice, together with the Department of the Army and the Department of the Interior, issued a joint statement declaring that, because of the importance of the legal issues, “the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.”

On September 12, 2016, the Standing Rock Sioux Tribe, jointly with the Cheyenne River Sioux Tribe, filed an emergency motion for injunction pending appeal “to enjoin construction of the Dakota Access Pipeline . . . for 20 miles on both sides of the Missouri River at Lake Oahe”, which was then denied on October 9, 2016, by the U.S. Court of Appeals for the District of Columbia Circuit. The next day, the U.S. Department of Justice issued another joint statement pointing out that “the Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon” but added a request that “the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

On November 14, 2016, the Corps released a statement informing the Sioux Tribe that it reached a conclusion concerning its decisions regarding the Lake Oahe site. The Corps invited the Tribe to participate in discussions that further the protection of Lake Oahe and, surprisingly – this is a reversal of matters – the Corps said that “while these discussions are ongoing, construction on or under Corps land bordering Lake Oahe cannot occur because the Army has not made a final decision on whether to grant an easement” with a right to construct the pipeline underneath Lake Oahe. In response, on November 15, Dakota Access, LLC, asserted a cross-claim against the Corps. Dakota Access, LLC, argued that “the Corps has already made all of the relevant determinations and given Dakota Access it right-of-way; as a result, this additional documentation (a written easement) is not needed for Dakota Access to cross beneath [Lake Oahe site].”

Given the complex nature of the case, further legal development is to come, stay tuned!

Written by Chloe Marie – Research Fellow