tribe rally in opposition of the Dakota Access pipeline in front of the White House. | Jacquelyn Martin / AP" width="634" />tribe rally in opposition of the Dakota Access pipeline in front of the White House. | Jacquelyn Martin / AP" width="634" />
Washington DC – On January 26, 2021, the DC Circuit Court of Appeals decided and agreed that the U.S. Army Corps of Engineers (ACE) (“Corps”) acted unlawfully by not preparing an environmental impact statement (EIS) and affirmed the vacatur (“it is vacated”) of Dakota Access Pipeline (DAPL)’s easement, but reversed the order to empty the pipeline (a “win” for DAPL).
The D.C. Circuit is important as second only to the U.S. Supreme Court as its jurisdiction contains the U.S. Congress and other governmen- tal agencies and is the main appellate court for issues on administrative and constitutional law.
Since 2016, the Standing Rock Sioux Tribe (SRST) has fought against DAPL and has asked the Biden administration to shut it down. President Biden rescinded a permit for the Keystone XL pipeline on his first day in office (www.earthjustice.org/video/ standing- rock- daplthokata he-miye-myname is-future).
SRSR has held the position that a potential oil leak from DAPL would contaminate the tribe’s water supply, against Energy Transfer and the Corps saying the pipeline is safe.
On January 26, 2021, EarthJustice (www.earthjustice.org.) a nonprofit public interest environmental law organization provided an update on the SRST’s litigation on DAPL (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 255 F. Supp. 3d 101, 114 (D.D.C. 2017).
The D.C. Circuit issued a ruling upholding a federal court’s decision that Corps violated key environmental laws and required a full environmental impact statement to study the risks DAPL poses to SRST.
Among those present at the ruling were Joel West Williams for the Great Plains Tribal Chairmen’s Association (GPTCA) (www.gptca.net.) , Mary Kathryn Nagle of the National Indigenous Women’s Resource Center, Inc. (NIWRC) (www.niwrc.org.) Douglas P. Hays for the Sierra Club, Kenneth Rumelt and James G. Murphy both members of Congress, all who supported SRST and Jan Hasselman (www.earthjustice.org/ about/staff/jan-hasselman. ) who argued the cause for the SRST.
The court’s opinion considered what was done when Lake Oahe was constructed in 1958 when the Corps flooded 56,000 acres of SRST land and 104,420 acres of Cheyenne River Sioux Tribal lands to construct the Oahe Dam on the Missouri River to provide water for the tribes.
DAPL now passes below Oahe and is 1,200 miles long, moving more than half a million gallons of crude oil from North Dakota to Illinois each day. Oil pipelines crossing federally regulated waters like Lake Oahe require federal approval.
According to the SRST, Lake Oahe provides drinking water for 4,200 people on the reservation. It is the source for irrigation, provides habitat for fish and wildlife and tribal members rely on it for subsistence, cultural, and recreational purposes. More importantly, water is more than just a resource but is sacred and connects all of nature and sustains life
Under the Mineral Leasing Act (30 U.S.C. 185) the DAP needed an easement from the Corps. The question is whether the U.S. ACE violated the National Environmental Policy Act (EPA) (42 U.S.C. 4321) by giving DAPL an easement without an environmental impact statement.
The Court agrees with the district court that Corps acted unlawfully and is requiring an environmental impact statement (EIS); short of directing DAPL to shut down and be emptied of oil while this occurs. While the last point is considered a “win” for the DAPL, this depends on the Corps who may order DAPL to cease operations. Presently, DAPL is trespassing on government property and the Corps was waiting for the DC Circuit’s ruling before making a decision.
It also depends on the SRST’s petition before the district court seeking an injunction; and that a decision could come any day.
