10/24/2017 - Regulatory Rollback

Dakota Access Pipeline

by Caitlin McCoy, Robin Just

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Dakota Access Pipeline (or DAPL) was built to transport crude oil from the Bakken field in North Dakota to Illinois. The pipeline crosses under the Missouri and Mississippi Rivers and Lake Oahe, and runs within a half-mile of the Standing Rock Sioux Reservation, through land taken by Congress from the tribe in 1958. The DAPL also runs through important cultural and burial sites for Standing Rock and other tribal nations.

Most of the DAPL was permitted and built under state law. However, the federal government has authority over 37 miles of the 1100-mile pipeline, where the pipeline passes over or under streams, rivers, and federal dams. The Standing Rock Sioux, other tribes, and environmental groups oppose the pipeline because of the greenhouse gas emissions from oil that it carries, and out of concern that a spill might contaminate state and tribal drinking water supplies.

Current Status

The pipeline is built and in operation.

Oct. 2017 A court rejects efforts to halt operation pending litigation. The tribes have asked for stricter oversight of pipeline operations, which the D.C. District court grants on Dec. 4, 2017. The pipeline developer has sued environmental groups for their protest activities against the Standing Rock portion of pipeline.

Aug. 31, 2018 The Army Corps of Engineers concludes its court-ordered NEPA analysis and finds that it doesn’t need to revisit its 2016 approval of the now-operating project.

Aug. 16, 2019 The Standing Rock Sioux Tribe files a motion for summary judgment in the U.S. District Court in Washington, D.C. alleging the U.S. Army Corps of Engineers failed to meaningfully respond to the tribe’s concerns throughout the remand process in violation of NEPA and the National Historic Preservation Act. To correct this alleged wrong, the tribe requests that the court vacate an easement that was granted to allow pipeline construction. Such an order would effectively halt pipeline operations until a full environmental review can be conducted. This filing marks a new wave in the court battle following the June 2017 remand and forced Army Corps NEPA process. Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).

History

March and April 2016 Three federal agencies – the Environmental Protection Agency (EPA), the Department of the Interior, and the Advisory Council on Historic Preservation – ask the Army Corps of Engineers to undertake a full environmental review of the DAPL under the National Environmental Policy Act (NEPA).

April 29, 2016 The Standing Rock Sioux petition the U.S. Army Corps of Engineers and similarly demand a more thorough environmental review.

July 26, 2016 The U.S. Army Corps of Engineers approve the federal easements (including across Lake Oahe) for the Dakota Access Pipeline, after determining the project will have no significant impact on the environment. The Army Corps bases this decision on a truncated environmental review.

July 27, 2016 The Standing Rock Sioux Tribe sues the U.S. Army Corps of Engineers and seeks an emergency stop to all construction. Standing Rock Sioux Tribe v. Army Corps, Case No. 1:16-cv-01534 (D.D.C.).

Sep. 9, 2016 The U.S. District Court for the District of Columbia rejects the request for an emergency stop, and notes that the Army Corps is not obligated to conduct an environmental review of the entire pipeline because most of it is constructed on private land. Later that day, the U.S. Justice and Interior Departments and Army order the U.S. Army Corp to halt construction near Lake Oahe until further environmental assessments are conducted.

Oct. 9, 2016 A federal court denies the tribe’s appeal of the Sep. 9, 2016 ruling.

Nov. 14, 2016 The Department of the Interior and the U.S. Army Corps of Engineers announce they will delay a final decision until further consultation with the tribes.

Dec. 4, 2016 The U.S. Army Corps of Engineers denies an easement allowing the pipeline to cross Lake Oahe pending further review, effectively halting work on the pipeline.

Jan. 18, 2017 The Army Corps announces it will begin a comprehensive environmental review of the DAPL project.

Trump Era

Jan. 24, 2017 President Trump issues a Presidential Memorandum, directing the Army Corps to “review and approve in an expedited manner” the DAPL easement.

Feb. 7, 2017 The Army Corps rescinds the Jan. 18, 2017 notice of its intention to conduct a full environmental review; on Feb. 8, 2017 it approves the easement.

Feb. 14, 2017 The tribes move for summary judgment (a ruling without trial) in the U.S. District Court for the District of Columbia to vacate the Trump Administration decision. Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).

March 7, 2017 The U.S. District Court for the District of Columbia refuses to delay operation of the pipeline.

June 14, 2017 The U.S. District Court for the District of Columbia partially grants a motion for summary judgment, pointing out flaws in the Army Corps’ decision-making process and remanding for further review. Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).

Aug. 22, 2017 Energy Transfer Partners, the pipeline developer, sues Greenpeace, Earth First and BankTrack for their roles in protesting the pipeline, requesting $1 billion in damages for alleged property damage and fraud.

Oct. 11, 2017 The U.S. District Court for the District of Columbia refuses to halt ongoing operation of the pipeline. The court warns its determination does not “excuse Defendants from giving serious consideration to the errors identified in this Court’s prior Opinion. Compliance with NEPA cannot be reduced to a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc.” Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).

Oct. 19, 2017 The Standing Rock Sioux and Cheyenne River Sioux tribes ask the U.S. District Court for the District of Columbia to impose additional environmental oversight of the pipeline’s operations while the environmental review is pending. Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).

Dec. 4, 2017 The court grants the tribes’ request, and orders the Army Corps of Engineers to work with Energy Transfer Partners and the Standing Rock and Cheyenne River Sioux Tribes to develop an oil spill plan, to undergo a third-party audit in which the tribes help select the auditor, and to submit bimonthly activity reports to the court until the Army Corps completes its environmental review. The court cites a recent Keystone Pipeline spill as one factor in the decision, saying it illustrated the “inherent risk with any pipeline”. The spill response plan is submitted to the court in early April. Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).

April 17, 2018 The U.S. District Court for the District of Columbia denies a motion by the Tribes asking the court to require closer consultation between the parties, leaving open the possibility that the Tribes could raise challenges regarding the process for developing the plan at a later stage in the legal process.

Aug. 7, 2018 Energy Transfer Partners modifies its lawsuit against environmental groups protesting the pipeline after the judge dismissed BankTrack as a defendant and ruled that ETP can only target individual members of Earth First. ETP has since added five individual defendants and also added a count of criminal trespass against all the defendants.

Aug. 31, 2018 The Army Corps of Engineers concludes its court-ordered NEPA analysis and finds that it doesn’t need to revisit its 2016 approval of the now-operating project.

Feb. 21, 2019 Energy Transfer Partners files a lawsuit against Greenpeace in North Dakota state court, alleging that Greenpeace and activists conspired to use illegal and violent means to disrupt construction and damage the company. The lawsuit seeks millions of dollars in damages. The claims in this filing are similar to the claims in the company’s previous suit against Greenpeace in federal court, which was dismissed by the U.S. District Court for the District of North Dakota on Feb. 14, 2019.

Feb. 28, 2019 The Standing Rock Sioux Tribe says that the Army Corps of Engineers failed to comply with a federal judge’s order to consider the effect that the pipeline might have on local tribes. Standing Rock Chairman Mike Faith refers to an Army Corps document, which states that their analysis “identified no new information” on the pipeline’s impact on the tribes. This memo, dated February 4, 2018, was produced three months before the Corps ever met with the tribes. Chairman Faith argues that the Army Corps came to a premature conclusion, calling it “…a rigged process intended to justify a dangerous and illegal pipeline.”

July 29, 2019 The Standing Rock Sioux Tribe formally requests a hearing in front of the North Dakota Public Service Commission (PSC) on the proposed plan to double the DAPL’s capacity. Energy Transfer Partners announced in June 2019 that it plans to expand the pipeline’s capacity from more than 500,000 barrels per day to 1.1 million barrels per day. The three-member North Dakota PSC previously agreed to consider holding a hearing on the proposal if one were formally requested. In his request, Tribal Chairman Mike Faith said the proposed capacity increase would increase the “consequences as well as the likelihood” of an oil spill.

Aug. 16, 2019 The Standing Rock Sioux Tribe files a motion for summary judgment in the U.S. District Court in Washington, D.C. alleging the U.S. Army Corps of Engineers failed to meaningfully respond to the tribe’s concerns throughout the remand process in violation of NEPA and the National Historic Preservation Act. To correct this alleged wrong, the tribe requests that the court vacate an easement that was granted to allow pipeline construction. Such an order would effectively halt pipeline operations until a full environmental review can be conducted. This filing marks a new wave in the court battle following the June 2017 remand and forced Army Corps NEPA process. Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. Army Corps and Dakota Access, LLC, Case No. 1:16-cv-01534-JEB (D.D.C.).