Victory Against the Dakota Access Pipeline has an important story up about a victory against DAPL.

NOTE: The TL;DR is that the expedited process for issuing permits for the project was illegal, DAPL might be shut down (at least temporarily), and the uncertainty created by the illegitimate permits might further delay fully connecting DAPL to the Albertan tar sands oil projects.

The Army Corps of Engineers (ACoE) has a long history of neglecting not only treaty rights but also duties imposed by the National Environmental Policy Act (NEPA). That act requires certain steps to be taken BEFORE concrete actions like issuing permits can be legally undertaken. There are good reasons – have been good reasons – to believe that they did not meet the legal prerequisites for issuing the DAPL permits and today a federal judge agreed.

The core of this case, Standing Rock Sioux Tribe v US ACoE is a reference to another important case that in that case did not heavily involve treaty rights, but did involve construction in a national park with historic significance. That case, brought by the National Parks Conservation Association, helped define more precisely when the ACoE can get away with minimal review. Spoiler alert! Not here. NPCA v Semonite (Semonite being the Lieutenant General in charge of the ACoE) clarifies the test for when the ACoE can skip steps because a project will have “no significant impact”, when it can engage in ordinary investigation, and when it must respond to outside concerns and perform the most rigorous due diligence. This last occurs when one or more of certain  other criteria are met, and for our purposes the most relevant is

the degree to which the effects on the quality of the human environment are likely to be highly controversial.

This criterion comes directly from federal statute (rather than from judicial interpretation of statute) USC Title 40 §1508   where the government defines certain terms for use in environmental statutes. You can find the specific bit of language we need in USC Title 40 CFR § 1508.27 (b)(4). (NEPA is part of Title 42 and so would not normally rely on definitions specific to Title 40, but NEPA is a procedural act that requires that certain things must be done a certain way. However, what those things are that must be done are part of Title 40 and thus the definitions at §1508 come into play.)

In examining this requirement, the court found that the ACoE had acted in an “arbitrary and capricious” manner by denying the full Environmental Impact Statement that would be required unless a project truly does show “no significant impact” on the environment. There obviously was “some significant impact” here, and thus an EIS was required. Since the ACoE never produced one, the process didn’t meet the legal standard required to issue a permit for the project.

If the ACoE didn’t meet the legal requirements to issue the permits, the permits are unlawful and the project itself is unlawful.

Now, DAPL is a large and multi-stage project. One part is already completely built and has been pumping oil from North Dakota sources for several years now. Another part connects up to Canada to bring ship Albertan oil extracted from tar sands deposits in what is perhaps the most energy intensive and environmentally destructive method of acquiring oil that currently exists. That part is only partially operational.

The court hasn’t yet held a hearing on what remedies are appropriate, but did note that forcing DAPL to stop pumping current levels of oil would be the expected remedy and that the ACoE and its co-defendants would have to make a significant argument for the court to impose something other than the legally expected remedy. But in addition to halting the flow of oil through the existing portions of DAPL, the ruling is highly likely to delay the full completion of the Albertan connection.

NoDAPL hasn’t won the war yet, but this is a significant battle that has gone in their favor. The one danger is that appeals of this decision go to the 8th District Court of Appeal while NPCA v Simonite was decided by the DC Court of Appeal. So the 8th circuit isn’t bound by the DCCA reasoning in Simonite, but both that decision and this DAPL case appear to my inexpert eye to be dealing fairly closely with the statutory language itself. The more abstracted a decision is from underlying statute, the more room there is at the appeals level for disagreement between circuits. My best guess here is that the 8th Circuit Court of Appeal will remain consistent with Simonite and either adopt that wholesale as a governing precedent within the 8th Circuit or else import it into their decision on any appeal of SRST v US ACoE and then add some minor modifications for how they wish the test applied in Simonite to function within 8th Circuit courts. In either case, I’m not expecting the 8th to disagree so strongly that they find reason to overturn SRST v US ACoE. If I’m right, that’s good news for not just the fight against DAPL, but also any projects in the territory covered by the 8th Circuit that might seek to infringe treaty rights of recognized tribes – and that’s a lot of territory!




  1. says

    It’s promising, but I suspect it has more to do with the oil price war, which is demonstrating that tar sands are not a very good investment right now.

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