On October 11, the U.S. States District Court for the District of Columbia issued its latest ruling on the Dakota Access Pipeline (DAP). The case is Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. US Army Corps of Engineers and Dakota Access, LLC. Partial relief was granted by the District Court when it was convinced that the U.S. Army Corps of Engineers’ (Corps of Engineers) Environmental Assessment inadequately addressed the consequences of an oil spill, and certain environmental justice issues.
As recounted by the District Court, the tribes strongly oppose the current route of the DAP, in particular the pipeline’s crossing at Lake Oahe, a federally regulated body of water that borders their reservations. The lake was created in 1958 by the Corps of Engineers, and serves as a primary source of drinking water for the tribes, and it is considered sacred to be in their spiritual practices. To date, the District Court has denied the tribes’ requests for an injunction against the pipeline based on the National Historic Preservation Act, National Environmental Policy Act (NEPA), Clean Water Act, and Religious Freedom Restoration Act. Since the pipeline has been completed and is being used to transport oil, the District Court decided not to vacate the Corps’ environmental assessment at this time.
Applying the test for vacatur developed by the DC Circuit, the District Court decided not to vacate the Corps’ action because the flaws it found to exist can be corrected,although the court was not persuaded by the pipeline’s arguments that vacatur would result in “catastrophic economic effects.” These issues were returned to the Corps of Engineers for additional review and consideration.