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Environmental Law at Standing Rock: A Cover for the Corps?

Oil already flows through the contested Dakota Access Pipeline in Standing Rock, bringing with it environmental impacts, only some of which the Corps has analyzed.

The legal tradition called "rule of law" presumes a court must explain its decisions, rather than simply announce orders. Judge Boasberg's June 14 memorandum opinion in Standing Rock v. U.S. Army Corps provides a model of traditional legal decision-making: 91 pages of carefully crafted prose explaining the court's ruling that the Corps "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." Oil already flows through the contested Dakota Access Pipeline, bringing with it environmental impacts, only some of which the Corps has analyzed. Several questions arise at this juncture, including the nature of the judge's reasons and the practical effect of the decision.

The practical effect remains up in the air. The ruling states, "the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further [litigation]." Judge Boasberg refused to issue a restraining order—as he similarly refused in earlier phases of the litigation.

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In other words, the court agreed that Standing Rock has a right to a complete environmental analysis and that such an analysis has not occurred. But the court postponed the question whether the operation of the pipeline should stop pending completion of the analysis. An old legal maxim says, "where there is no remedy, there is no right." A "right" exists only if a remedy exists. But the bifurcation of arguing rights and remedies also marks a traditional aspect of legal decision-making.

Judge Boasberg acknowledged the power of the court to "vacate DAPL’s permits and easement, thus forcing it to cease operations until the Corps fully complied with the aforementioned NEPA requirements." He even referred to this action as the "standard remedy" in NEPA litigation, quoting a 1977 ruling: "When an action is being undertaken in violation of NEPA, there is a presumption that injunctive relief should be granted against continuation of the action until the agency brings itself into compliance."

But, he cautioned, "Such a move…would carry serious consequences that a court should not lightly impose." Instead, he ordered the parties to argue the point in a subsequent hearing. To guide the arguments, he quoted from a 1993 case about collecting government agency fees: "The decision whether to vacate depends on ‘the seriousness of the [agency 's] deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed."

Boasberg's acceptance of the Corps' analysis of some environmental dangers, his refusal to issue restraining orders, and his reliance on a precedent about fee collections in the context of evaluating "seriousness…and disruptive consequences" all point to a likelihood the court will not stop the pipeline operation, despite the inadequacy of the Corps' environmental analysis. The judge's further quotation from the 1993 precedent suggests the court will find a "serious possibility that the [agency] will be able to substantiate its decision on remand"—in other words, that the Corps will be able to file an environmental analysis acceptable to the court.

At this point, we are in position to understand the limited nature of the environmental rights stated in the U.S. National Environmental Policy Act (NEPA), the statute which Standing Rock relies on in this court action. There seems to be a common misperception that this U.S. law creates a "right" to a healthy environment. In fact, as the court points out with quotes from prior cases, "NEPA’s requirements are 'procedural.'" NEPA requires agencies "to consider every significant aspect of the environmental impact of a proposed action." Thus, as Boasberg's ruling points out, "Agency actions with adverse environmental effects can thus be NEPA compliant where 'the agency has considered those effects and determined that competing policy values outweigh those costs.'" NEPA does not prohibit "adverse impacts" or "irreversible commitments of resources." It merely requires that "the adverse environmental effects of the proposed action are adequately identified and evaluated."

In short, NEPA provides a "procedural right" to have government agencies prepare an "Environmental Impact Statement" (EIS) for any proposed action "significantly affecting the quality of the human environment." As Judge Boasberg points out, an EIS "must detail the environmental impact of the proposed action, any unavoidable adverse effects, alternatives to the proposed action, the relationship between short-term uses of the environment and long-term productivity, and any irreversible commitments of resources."

Further, NEPA only requires an EIS after a less rigorous "Environmental Assessment" (EA) discussing "the need for the proposal, the alternatives, the environmental impacts of the proposed action and alternatives, and the agencies and persons consulted." In this case, the Corps' EA concluded with no need for an EIS "because of the agency’s commitment to ensure the performance of mitigation measures" to prevent "significant environmental impact."

The court agreed with Standing Rock that the Corps' EA was inadequate because it did not examine all impacts. But when the Corps returns—as it must under Judge Boasberg's order—with a "complete" EA, it will have fulfilled the legal mandate to "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." The active verb in the law—"consider"—points to the limitations of the legal remedy and thus the limitations of the right: "NEPA merely prohibits uninformed — rather than unwise — agency action."

The danger inherent in Standing Rock's reliance on U.S. law becomes apparent. A traditional Native perspective views human actions as part of an interdependent ecosystem, rather than as independent variables within a container called "the environment." These two views clash repeatedly in ongoing conflicts between indigenous life-ways and colonizing, extractive economic practices. The creation of the Oahe Dam itself provides an example: As Judge Boasberg put it, "Its creation necessitated the taking of approximately 56,000 acres of some of 'the best land' from Standing Rock…." The "necessity" of the "taking" speaks from the colonial extractive viewpoint. The U.S. claims ownership of Native lands and NEPA subjects them to its own agenda for "economic development."

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The Three Affiliated Tribes of Fort Berthold expressed the Native perspective in challenging the construction of Garrison Dam, a parallel project to Oahe: "The lands which will be flooded are practically all the lands which are of any use or value to produce feed for stock or winter shelter…. We have kept our side of all treaties. We have been, and now are, as nearly self-supporting as the average white community.... [W]e cannot agree that we should be destroyed, drowned out, removed, and divided…."

As Vine Deloria Jr. (Standing Rock), put it, the "taking" was "the single most destructive act ever perpetrated on any tribe by the United States." Peter Capossela's 2015 study, "Impacts of the Army Corps of Engineers' Pick-Sloan Program on the Indian Tribes of the Missouri River Basin," confirms Deloria: "The Corps targeted Tribal lands [and] relocated entire Tribal communities against their wishes" to construct the dams. Quoting another study, Copossela says, "The uprooting of long-standing Indian communities disrupted and disorganized the social, economic, political, and religious life of well-integrated tribal groups and had a serious effect on the entire reservation population."

Adam Smith—the "founder" of capitalism—said, "Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all." One might say that NEPA provides cover for this process as it plays out at Standing Rock.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.