Wednesday, December 19, 2018

Shale Law in the Spotlight: Overview of Recent Legal Actions Relating to the Dakota Access Pipeline (Part 3) – Legal Challenge of Standing Rock Sioux Tribe to Actions of U.S. Corps of Engineers

Written by Chloe Marie – Research Specialist

This is the third article in a three-part series to provide an update of recent legal developments related to construction of the Dakota Access Pipeline. The first article addressed litigation filed by several Morton County landowners against Dakota Access Pipeline, LLC. The second article addressed a claim of damages submitted by the North Dakota Attorney General to the United States Army Corps of Engineers (USACE). This article will address the legal challenge of the Standing Rock Sioux Tribe to USACE’s grant of an easement through federal land.

Background of Litigation

In July 2016, Dakota Access Pipeline LLC, a subsidiary of Energy Transfer Partners, was granted Section 408 permission by USACE to cross Corps-administered flowage easements bordering or under Lake Oahe for the construction of the Dakota Access Pipeline (DAPL). This decision was followed by a Finding of No Significant Impact (FONSI) based on a Final Environmental Assessment (EA) issued on the same day.

On December 4, 2016, USACE, however, denied the granting of an easement allowing the crossing of land at Lake Oahe. Assistant Secretary of the Army, Jo-Ellen Darcy, explained in a memorandum that the issue of whether to authorize construction of the pipeline at Lake Oahe deserved additional analysis and evaluation as well as more active tribal participation in the decision-making. USACE then issued a Notice of Intent to prepare an Environmental Impact Statement (EIS) on January 18, 2017, in connection with DAPL’s request for an easement.

Just a few days after taking office, President Donald Trump released a Presidential Memorandum on January 24, 2017, directing USACE to expedite the DAPL Approval Review. Subsequently, on February 8, 2017, USACE granted an easement necessary for the pipeline to cross federal land at Lake Oahe. The Press Release issued at that time stated that “the granting of this easement follows the February 7th Secretary of the Army decision to terminate the Notice of Intent to Perform an Environmental Impact Statement and notification to Congress of the Army’s intent to grant an easement to Dakota Access for the Lake Oahe crossing.”

In pending litigation challenging the USACE actions, the Standing Rock Sioux Tribe filed a motion for partial summary judgment on February 14, 2017, requesting the court to “hold unlawful and set aside” the granting of an easement and related permit decisions on the grounds that USACE failed to prepare an EIS and thus violated the National Environmental Policy Act (NEPA), and that such granting is “arbitrary, capricious, and contrary to law.” On June 14, 2017, the U.S. District Court for the District of Columbia granted, in part, and denied, in part, the Tribe’s motion for partial summary judgment and remanded the July 2016 Final Environmental Assessment and Finding of No Significant Impact back to USACE for further analysis.

Recent Developments in Litigation

On August 31, 2018, USACE released further analysis affirming its 2016 decision to grant Section 408 permission to Dakota Access. More specifically, USACE found that “granting Section 408 permission and conveying a right-of-way to Energy Transfer Partners to construct and operate a portion of the DALP under federally-owned Corps-managed land [did] not result in disproportionately high and adverse human health or environmental effects of minority populations, including Tribes, and low-income populations.” In addition, USACE stated that an EIS was not necessary.

On November 1, 2018, the Tribe filed a supplemental complaint before the U.S. District Court for the District of Columbia against USACE challenging their remand decision issued on August 31, 2018. According to the Tribe, the USACE remand decision “mostly reiterates the flawed conclusions of the Corps’ earlier analyses without even mentioning, let alone addressing, most of the Tribe’s information critiquing that analysis.” The Tribe furthermore added that USACE “treated the remand as a post hoc effort to justify its unlawful decision to circumvent an adequate review of the pipeline and its impacts on the Tribe and the Tribe’s rights.”

Consequently, the Tribe sought a declaration from the federal district court to the effect that the USACE decision to affirm its 2016 environmental analysis authorizing the pipeline construction was “arbitrary, capricious and in violation of the [Administrative Procedure Act], [National Environmental Policy Act], and the Tribe’s Treaty rights.” In addition, the Tribe requested that the court vacate the USACE permits allowing construction of the DAPL under Lake Oahe pending full compliance with the National Environmental Policy Act and the Administrative Procedure Act by USACE.  

Stay tuned for further legal developments!

Further information on the Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers case is available at docket no. 1:16-cv-01534.

Additional resources on this topic from the Center for Agricultural and Shale Law:

This material is based upon work supported by the National Agricultural Research Service, U.S. Department of Agriculture.

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