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Dakota Access Oil Pipeline Fight Goes Before D.C. Circuit

By Casey C. Sullivan, Esq. on October 07, 2016 | Last updated on March 21, 2019

In 2015, years of intense grass roots opposition succeeded in shutting down the Key Stone XL Pipeline, a massive pipeline that would run from the intensely polluting Alberta tar sands to the Gulf Coast. Since then, pipeline fights have remained at the forefront of environmental fights. One of the most recent battles is over the Dakota Access pipeline, a $3.8 billion project that would transfer crude oil from North Dakota's Bakken oil fields to Illinois, and through the sacred lands of many Native American groups.

Now, the Standing Rock Sioux are suing. The tribe turned to the D.C. Circuit yesterday, asking it to impose a temporary injunction on further pipeline work while the tribe litigates whether the U.S. Army Corps of Engineers properly consulted with it before approving the project.

Pipelines and Tribal Consultation

The Dakota Access pipeline runs near to Standing Rock Sioux land and across what the tribe views as sacred lands and potentially threatening the tribe's water supply. Last month, a district court refused to stop construction despite the Tribe's claims that the government did not sufficiently consult with the Tribe before approving the project.

As the district court noted, while massive development projects usually require extensive federal review, that's not the case with pipelines such as the Dakota Access. Domestic oil pipelines, unlike natural gas pipelines, "require no general approval from the federal government" and the Dakota Access pipeline needed almost no federal permitting.

There is one exception though. The U.S. Army Corps of Engineers must approve such projects under the Clean Water Act or the Rivers and Harbors Act, and it did so here through a general permit. That permit, the Tribe argues, triggered consultation requirements under the National Historic Preservation Act. The NHPA requires government agencies to consult with tribes when projects may impact property with historic or cultural significance.

Arguing It Out Before the D.C. Circuit

At oral arguments on Tuesday, attorneys from Earthjustice, representing the tribe, argued that the Army Corp had engaged on only perfunctory consultation. In court documents, the tribe has alleged that the Army Corp did not give them sufficient time to respond and relied on a generic form letter to initiate consultation, according to Inside Energy. The tribe's "hope and their sense is that they're not being consulted just to have a box checked," University of Colorado professor and Indian Law specialist Sarah Krakoff says. "Consultation, check."

But the government argued that the Corps had made "an extended effort to consult with the tribe," according to the Courthouse News Service. The Department of Justice's lawyer, James Maysonett, argued that only one consultation was required, but seemed unprepared to offer a clear answer when pressed on the NHPA's two-consultation requirement, according to CNS.

Construction of the pipeline in sensitive areas has been stopped by a D.C. Circuit injunction until the case is decided. But the pipeline's developers were prepared to build right up to the border of that injunction while the case is decided, Dakota Access's attorney told the court.

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