Slow the Flow? U.S. District Court orders Army Corps of Engineers to Reconsider Environmental Analysis of the Dakota Access Pipeline

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The Dakota Access Pipeline (DAPL) is a pipeline built by Energy Transfer Partners to move oil from western North Dakota to Illinois, where it can be shipped to the Gulf Coast and points beyond. The Army Corps of Engineers approved the completion of the DAPL on February 8, 2017. The DAPL began operating June 1, 2017 and has the capacity to move half of North Dakota’s daily oil production.

In the summer of 2016, the Standing Rock and Cheyenne River Sioux Tribes began efforts to stop the pipeline from being placed under Lake Oahe on the Missouri River, just north of their reservations. Both Tribes rely on the Missouri River for their drinking water. Those efforts included a lawsuit filed in the U.S. District Court for the District of Columbia.

Initially, the Tribes contended that the grading and clearing of land for the pipeline threatened sites of cultural and historical significance, that the Corps had ignored its duty to engage in tribal consultations pursuant to the National Historic Preservation Act and that the presence of oil in the pipeline under Lake Oahe would desecrate sacred waters and make it impossible for the Tribes to freely exercise their religious beliefs, thus violating the Religious Freedom Restoration Act. U.S. District Judge James E. Boasberg rejected all of those arguments.

Undeterred, the Tribes made a third challenge, alleging that the Corps failed to comply with the National Environmental Policy Act (NEPA). The Tribes argued that the Corps did not sufficiently consider the pipeline’s environmental effects before granting permits to Dakota Access to construct and operate DAPL under Lake Oahe, a federally regulated waterway. Under NEPA, an agency is required to complete an Environmental Impact Statement for any federal action “significantly affecting the quality of the human environment.”

On June 14, 2017, Judge Boasberg ruled that the Corps “largely complied” with environmental law when permitting the pipeline. However, Judge Boasberg ruled that the Corps failed to adequately consider the impact of an oil spill on the tribe’s hunting and fishing rights; that the Corps did not adequately address expert scientific criticisms of the agency’s oil spill risk analysis; and that the Corps failed to consider whether the effects of an oil spill would disproportionately affect the Tribes, a concept referred to as “environmental justice.” Judge Boasberg ordered the Corps to reconsider those aspects of its environmental analysis.

The battle now moves on to whether Judge Boasberg will order the pipeline to shut down while the Corps performs the additional review. Judge Boasberg has issued a scheduling order for briefing on that issue that will conclude in August. In the interim, the Corps and the U.S. Department of Justice have said they will propose a timeframe for the additional review in “mid-July.” The Corps stated that a full environmental study could take up to two years.

The District Court’s actions are a reminder that even when projects have the support of the administrative branch, environmental regulations provide numerous avenues of attack for opponents that can lead to significant potential delays and additional costs for the projects.