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.
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.
The pipeline is built and in operation; in October, 2017 a court rejected efforts to halt operation pending litigation. The tribes have asked for stricter oversight of pipeline operations, which the D.C. District court granted on December 4, 2017. The pipeline developer has sued environmental groups for their protest activities against the Standing Rock portion of pipeline.
In March and April 2016, three federal agencies – the Environmental Protection Agency (EPA), the Department of the Interior, and the Advisory Council on Historic Preservation – asked the Army Corps of Engineers to undertake a full environmental review of the DAPL under the National Environmental Policy Act (NEPA).
On April 29, 2016, the Standing Rock Sioux petitioned the U.S. Army Corps of Engineers and similarly demanded a more thorough environmental review.
On July 26, 2016, the U.S. Army Corps of Engineers approved the federal easements (including across Lake Oahe) for the Dakota Access Pipeline, after determining the project would have no significant impact on the environment. The Army Corps based this decision on a truncated environmental review.
On July 27, 2016, the Standing Rock Sioux Tribe sued the U.S. Army Corps of Engineers and sought an emergency stop to all construction.
On September 9, 2016, the district court of the District of Columbia rejected the request for an emergency stop, and noted that the Army Corps is not obligated to conduct an environmental review of the entire pipeline because most of it was constructed on private land. Later that day, the U.S. Justice and Interior Departments and Army ordered the U.S. Army Corp to halt construction near Lake Oahe until further environmental assessments were conducted.
On October 9, 2016, a federal court denied the tribe’s appeal of the September 9 ruling.
On November 14, 2016, the Department of the Interior and the U.S. Army Corps of Engineers announced they would delay a final decision until further consultation with the tribes.
On December 4, 2016: The U.S. Army Corps of Engineers denied an easement allowing the pipeline to cross Lake Oahe pending further review, effectively halting work on the pipeline.
On January 18, 2017, the Army Corps announced it would begin a comprehensive environmental review of the DAPL project.
On January 24, 2017, President Trump issued a Presidential Memorandum, directing the Army Corps to “review and approve in an expedited manner” the DAPL easement.
On February 7, 2017, the Army Corps rescinded the January 18 notice of its intention to conduct a full environmental review; on February 8, it approved the easement.
On February 14, 2017, the tribes moved for summary judgment (a ruling without trial) to vacate the Trump Administration decision.
On March 7, 2017, the district court in the District of Columbia refused to delay operation of the pipeline.
On June 14, 2017, the district court in the District of Columbia partially granted a motion for summary judgment, pointing out flaws in the Army Corps’ decision-making process and remanding for further review.
On August 22, 2017 Energy Transfer Partners, the pipeline developer, sued Greenpeace and other pipeline protestors for property damage and fraud.
On October 11, 2017, the district court in the District of Columbia refused to halt ongoing operation of the pipeline. The court warned 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.”
On October 19, 2017, the Standing Rock Sioux and Cheyenne River Sioux tribes asked the district court in the District of Columbia to impose additional environmental oversight of the pipeline’s operations while the environmental review is pending.
On December 4, 2017 the court granted the tribes’ request, and ordered 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 cited a recent Keystone Pipeline spill as one factor in the decision, saying it illustrated the “inherent risk with any pipeline”. The spill response plan was submitted to the court in early April.
On April 17, 2018, the court denied 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.