New Questions about Future of Dakota Access Pipeline after Tribes’ Success in Court

A June 14, 2017 decision out of the U.S. District Court for the District of Columbia has added new uncertainty to the future of the Dakota Access Pipeline.  Earlier this year, the Army Corps of Engineers granted an easement to Dakota Access, LLC, allowing the pipeline to cross under the Missouri River at Lake Oahe.  This prompted opposition and legal challenges from the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, whose reservations are in close proximity to the crossing at Lake Oahe.

The court had previously rejected the Tribes’ arguments that the Corps’ decision violated the National History Preservation Act and the Religious Freedom Restoration Act.  However, the June 14, 2017 decision focused on environmental issues and granted some of the Tribes’ arguments that the Corps’ decision violated the National Environmental Policy Act (NEPA).  As the court explained, NEPA requires agencies to consider the environmental impact of proposed actions, although it does not prohibit actions that have negative environmental consequences so long as those consequences are considered.

Ultimately, the court held that although the Corps “substantially complied with NEPA in many areas . . . it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”  As a result, the Corps will have to reconsider these portions of its environmental analysis.

How exactly this case proceeds going forward remains to be seen (or, in the words of the court’s decision, “So where does that leave us?”).  The court has two options.  It could vacate the Corps’ permits and easements, forcing the Dakota Access Pipeline to cease operations until the Corps reconsiders those portions of its environmental analysis mentioned above.  Alternatively, the court could permit the Corps to comply with its NEPA requirements without vacating its decision, which would allow the pipeline to continue operations.  The court has ordered the parties to brief this question and will discuss the scheduling of that briefing at a status conference next week.

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