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Army Corps gave green light to Dakota Access Pipeline in key memo

Monday, February 13, 2017

Cleanup efforts continue at Oceti Sakowin in North Dakota, which served as home to thousands of people as part of the ongoing #NoDAPL movement. Photo: Redhawk / Standing Rock Rising

The U.S. Army Corps of Engineers went against Indian Country in giving the green light to the Dakota Access Pipeline, a key document filed in federal court shows.

The February 3 memo offered a "technical and legal" review of the controversial project as part of the Donald Trump administration's consideration of the pipeline. But it also provided a crucial recommendation to approve the easement for the final portion of the pipeline without additional reviews.

Based on an environmental assessment and finding of no significant impact that had been issued last July, "we have concluded that the Corps’ Omaha District adequately considered and disclosed the environmental, cultural and other potential impacts of its actions and that its decisions were not arbitrary or capricious," the analysis states.

"We have also concluded that supplementation of the EA to address any new information is not legally required at this time," it continued.

The recommendation goes against the wishes of the Standing Rock Sioux Tribe and its many allies in Indian Country and around the world. The tribe argued that the Army Corps failed to consider the impacts of the pipeline on treaty rights, sacred sites and water resources.

To the contrary, the memo said the Army Corps already considered many of those issues in the July 2016 environmental assessment. But the agency appears to waver on some points -- for example, it conceded that the tribe's fishing and hunting rights were not "specifically" addressed and that even its water rights were not "specifically" addressed.

"The construction and operation of the pipeline does not require any use of water from the lake, nor does the placement of the pipeline impair the tribe’s ability to withdraw water from Lake Oahe to meet the tribe’s needs," the document states.

Nevertheless, the analysis asserts that the assessment met the requirements of the National Environmental Policy Act and even satisfies the "hard look" standard imposed on federal agencies by the courts.

Whether that is indeed the case is an issue for Judge James E. Boasberg, who is hearing arguments in the lawsuit on Monday afternoon. The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe are seeking an order to halt construction on the final portion of the pipeline in North Dakota.

The Trump administration is opposing the tribes' efforts. That's a big shift in legal strategy -- at certain points last year, the Department of Justice supported a halt in construction activities even as it defended the Army Corps' handling of the pipeline.

"With weeks of construction and testing yet to occur before oil is introduced into the Dakota Access Pipeline under Lake Oahe, defendant requests that the Court deny Cheyenne River’s motion for a temporary restraining order and set a briefing schedule to address Cheyenne River’s motion for a preliminary injunction, " a memo submitted on Monday ahead of the afternoon hearing reads.

Dakota Access crews have already resumed activities on and near Lake Oahe in North Dakota. The firm anticipates placing crude in the pipeline in 60 days and oil flowing along the entire 1,172-mile route in less than 90 days.

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)

Federal Register Notice:
Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (January 18, 2017)