Dakota Access Pipeline

The fact that commercial operations had already commenced some two weeks earlier notwithstanding, a federal judge with the U.S. District Court for the District of Columbia issued a ruling on June 14, 2017 that resurrects yet again some of the questions about the legality of certain permits that had been granted for construction of the Dakota Access Pipeline. 

The pipeline project has long been the object of protests and challenges, none more vocal than the ones lodged by the Standing Rock Sioux Tribe as to the siting of the facility under the Missouri River at Lake Oahe in North Dakota, a region the tribe deems sacred and culturally sensitive. Various court and federal agency decisions had prompted the U.S. Army Corps of Engineers last year to deny a key permit needed for the project to continue in the Lake Oahe area, at least until a more comprehensive review of the siting plan could be conducted.

However, after the change in presidential administrations, the Army Corps of Engineers reversed course and awarded the permit, with the project developers immediately completing the pipeline. Not willing to give up, tribal officials renewed their complaints, this time arguing that in issuing the latest permit, the Army Corps of Engineers had failed to fully evaluate the siting plan under the terms of the National Environmental Policy Act (NEPA). 

Although finding that the Army Corps of Engineers had for the most part adequately explained and documented its NEPA considerations, Judge James E. Boasberg expressed partial sympathy with the tribe's claims with regard to one aspect of the NEPA, that being its requirement that reviews performed under the act include an assessment of "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 

While remanding the permit matter to the Corps for further consideration of the discreet issue of whether the site chosen is "highly controversial," the judge cautioned that a finding of controversy rests not just on a matter being "newsworthy" or making people "agitated" enough to pursue action in court. Rather, he said, something more must be found, such as widely different conclusions from scientific experts or historians as to the impacts of the pipeline on nearby Native American lands. 

The judge remarked that in his view, some of the scientific critiques proffered to the Corps were sufficiently divergent to meet the standard of being highly controversial. That is, he said, given the very different positions staked out by some of the scientific experts, the Army Corps of Engineers had not explained why it ultimately determined that the project would have no significant environmental effect on the area. (Civil Action No. 16- 1534 (JEB))