The Standing Rock Sioux and Cheyenne River Sioux tribes, have requested that the Dakota Access Pipeline (DAPL) be shut down while a U.S. District Court Judge decides whether to mandate further environmental review.
The tribes’ attorneys, with the environmental law firm EarthJustice, filed the motion in U.S. District Court on August 7, supported by the National Congress of American Indians (NCAI) and other Native organizations.
It’s the latest turn in what has become a nearly two-year journey for the Standing Rock Sioux and Cheyenne River Sioux tribes, which achieved a significant win on June 14 when Judge James Boasberg of the District of Columbia District Court directed the U.S. Army Corps of Engineers to “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.”
In a follow-up status hearing on June 21, Boasberg ordered Energy Transfer Partners (ETP) and the corps to submit arguments by July 17 explaining why he should not shut down the pipeline pending a potential new environmental analysis. He also gave the co-plaintiff tribes until August 7 to respond. All have now done so, and Boasberg is considering the submissions.
Army Corps lawyers have argued that the two authorizations issued for constructing the last portion of the pipeline should stay in place. The Corps said stopping of the flow of oil in the pipeline would be “unnecessary and inappropriate,” holding that the Corps most likely will come to the same safety conclusions that it did with its initial, more superficial analysis—that the pipeline is safe to operate and that stopping the pipeline would hurt ETP substantially.
ETP lawyers said the Corps had not thoroughly explained the reasons behind its decision to grant the easements for drilling under Lake Oahe on the Missouri River, but that the decision is still sound, and should stand.
In their counter argument, Earth Justice attorneys Jan Hasselman and Nicole Ducheneaux said the Corps “failed to address serious expert critiques of Dakota Access Pipeline’s oil spill risk analysis,” disregarded the tribes’ existential rights to hunt and fish, and provided a “skewed assessment” in saying that the location of the pipeline "raised no environmental justice concerns.”
They called for the Corps to conduct the full environmental impact statement that had been initiated in December 2016 by the administration of President Barack Obama but abandoned under Trump.
“Both the Corps and [ETP] have made it abundantly clear that they will treat the remand as a paper exercise designed to generate additional explanation for decisions already made,” the EarthJustice attorneys said. “Such an approach would make a mockery of the National Environmental Policy Act, which calls for an objective and open-minded analysis of environmental impacts before, and in order to inform, agency decisions.”
The case is now in the hands of Boasberg, who is expected to rule by September on at least part of the case while the new environmental review that he ordered in June is conducted.