The Renewed Legal Challenge Against the Dakota Access Pipeline
A new chapter opens in the legal fight against the Dakota Access Pipeline.
A new chapter opens in the legal fight against the Dakota Access Pipeline, as the Standing Rock Sioux Tribe renews their lawsuit against the U.S. Army Corps of Engineers challenging its recently completed review of the pipeline’s impacts.
Attorney Jan Hasselman, who represented the Standing Rock Sioux Tribe in their lawsuit against the Army Corps, explains the significance of this legal development.
What happened on Nov. 1, 2018?
The Standing Rock Sioux Tribe filed a “supplemental complaint” in its existing lawsuit against the U.S. Army Corps over permits for the Dakota Access pipeline.
The supplemental complaint renews the lawsuit in response to new developments since the Standing Rock Sioux Tribe won part of its lawsuit against the Corps last year.
What decision is being challenged?
On Aug. 31, 2018, the Corps released a two-page document affirming the permits for DAPL, despite a court finding that they were critically flawed. The Corps released its long-awaited report on Oct. 1 explaining that decision. The Standing Rock Sioux Tribe Council, the Tribe’s governing body, voted unanimously on Oct. 18 to challenge the remand decision.
Today’s supplemental complaint challenges the Corps’ decision to affirm its original permits in the face of overwhelming evidence that they are flawed. Read the Corps’ report, redacted for public release:
Why did the Corps conduct a review of its original permit decision?
After Donald Trump reversed the Obama administration’s decision to effectively deny DAPL its permits at the Missouri River, the Tribe, represented by lawyers at Earthjustice, filed a new lawsuit against the U.S. Army Corps of Engineers.
Among other things, the lawsuit alleged that the Corps failed to consider the risks of an oil spill, the impacts of a spill for the Tribe’s treaty rights, and the “environmental justice” implications of the permit.
In June of 2017, a federal judge in Washington, D.C., agreed with the Tribe on these issues, finding that the Corps violated the National Environmental Policy Act by failing to give appropriate consideration to these matters.
The Court ordered the Corps to study these issues further and make a new permit decision. This review is known as a “remand.” (More on the 2017 ruling.)
Why was the remand flawed?
The Corps completely shut the Tribe out of the process, refusing to share technical information on oil spill risks that was being prepared by DAPL.
The Corps ignored extensive technical input from the Tribe showing that DAPL’s estimates of an oil spill risk were gravely underestimated, and that the impacts of a spill in the Missouri River would be much more extensive than previously claimed.
The Corps ultimately upheld the DAPL permits based on technically flawed and one-sided input.
What happens next?
Judge Boasberg has to formally allow the supplemental complaint to be filed.
After that, the Corps will be required to file the “administrative record” — i.e., all of the documents that it considered or relied on in making its remand decision — with the court. The parties will then exchange legal briefs on whether the Corps’ actions complied with the law. The whole process should take about six to nine months.
What does the Tribe want?
The true risks and impacts of siting a major oil pipeline just upstream from the Standing Rock Sioux Tribe’s reservation have never been fully analyzed or disclosed in a court of law.
The Tribe is continuing to push for this thorough review of the dangers they face as a result of the pipeline construction. The Obama administration took a step in the right direction by denying permits and ordering a comprehensive environmental review, including assessment of alternative routes that did not put the Tribe at risk.
Until this full review is provided, the pipeline should not be operating.
Jan Hasselman represented the Standing Rock Sioux Tribe in their lawsuit against the Army Corps. He is a staff attorney at Earthjustice. @JanHasselman