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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