On September 9, 2016, the U.S. Department of Justice, the U.S. Department of the Interior, and the U.S. Army Corp of Engineers (“Army Corps”) issued a Joint Statement announcing the Army Corps would not authorize construction of the Dakota Access pipeline on certain Army Corps lands. The Joint Statement asserted the Army Corps needed additional time to “reconsider [ ] its previous decisions” and was issued amidst increased media attention and opposition to the pipeline from, among others, Native American tribes and various groups opposed to fossil fuel development. The federal government’s eleventh-hour intervention was unprecedented given that only three percent of the pipeline falls under federal jurisdiction and the Army Corps had been prepared to move forward with its final authorizations. In fact, only moments before the Joint Statement was issued, a U.S. District Court had rejected a request to issue a preliminary injunction to stop construction.
Dakota Access is a 1,172 mile pipeline that will deliver light sweet crude oil from the Bakken and Three Forks production areas to markets in the Midwest, East Coast, and Gulf Coast. In order to construct the pipeline, Dakota Access was required to secure, among other authorizations, permits and approvals from the Army Corps pursuant to the Clean Water Act and the Rivers and Harbors Act. After the Army Corps issued its approvals, the Standing Rock Sioux Tribe filed suit arguing the Army Corps had violated the Clean Water Act, the National Environmental Policy Act, and the National Historic Preservation Act. The Tribe sought a preliminary injunction based on its allegation that the Army Corps had failed to adequately consult with the Tribe regarding historic and cultural resources. The Tribe has also raised concerns that the Dakota Access Pipeline poses a threat to its drinking water supply. The merits of the Tribe’s claims are pending before the U.S. District Court for the District of Columbia and an appeal of the District Court’s denial of a preliminary injunction is pending before the U.S. Court of Appeals for the District of Columbia Circuit.
The Joint Statement is notable because of its potential impact on the development of other linear infrastructure projects. In particular, the Obama Administration has indicated that it will (1) consider reforms to ensure meaningful tribal input into infrastructure-related reviews to protect treaty lands, resources, and treaty rights; and (2) assess the need for new legislation to facilitate these reforms. Additionally, the Joint Statement suggests that, for projects currently under development, federal permitting agencies will have heightened sensitivity to the concerns raised by Native American tribes. The potential reforms and additional scrutiny of impacts to Native American interests could affect project development schedules, increase the scope of mitigation measures, and create regulatory uncertainty with regard to the timing and processing of federal approvals.