Tribes push broader strategy after failed bid to halt project

Tribes push broader strategy after failed bid to halt project

Source: E&E News
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Ellen M. Gilmer, E&E News reporter

Opponents of the Dakota Access pipeline sought to quickly pivot to other legal challenges yesterday after a federal court rejected their latest attempt to stall the rapidly progressing oil project.

Lawyers for the Cheyenne River Sioux Tribe and Standing Rock Sioux Tribe said they were disappointed by the U.S. District Court for the District of Columbia’s denial of their request for a preliminary injunction that would block completion of the pipeline. But they warned that the legal fight is far from over.

“Even though the tribe is disappointed, this preliminary injunction motion was just the beginning of a much broader legal fight against the [Army Corps of Engineers’] authorization of this pipeline under the sacred waters of the Missouri River,” Fredericks Peebles & Morgan attorney Nicole Ducheneaux, representing Cheyenne River, said on a press call shortly after the decision.

Both tribes have filed summary judgment motions asking the court to rule on fundamental legal issues in the case and scrap several layers of federal approvals for the pipeline.

Earthjustice attorney Jan Hasselman, who represents Standing Rock, noted that while the court has rejected several requests for injunctive relief, it has not yet weighed in on those core issues.

Standing Rock’s failed 2016 preliminary injunction request focused on claims under the National Historic Preservation Act, and Cheyenne River’s recent injunction attempt dealt with the Religious Freedom Restoration Act.

The partial summary judgment motions, meanwhile, center on whether the federal government violated the National Environmental Policy Act and tribal treaties in approving the pipeline and whether the Trump administration improperly ignored the Obama administration’s conclusion that further study was needed.

District court Judge James Boasberg may choose to schedule a hearing on the requests next month after all sides file their briefs.

“The court plainly understands that time is of the essence,” Hasselman said.

Indeed, pipeline construction is moving quickly, with company lawyers recently estimating that oil may flow through it next week. Hasselman argued that pipeline completion will not affect how the case moves forward.

“The court has already indicated that if [Boasberg] finds that the permits were issued contrary to law, he can order the pipeline turned back off, and that’s what we’ll be asking for,” he said.

‘Robust process’

Dakota Access is urging the district court to reject Standing Rock’s summary judgment request.

In a brief filed last night, company lawyers argued that the tribe’s complaints about the process used to approve the pipeline have no merit.

“Under the statutes that the Tribe invokes — [NEPA and the Administrative Procedure Act] — the Tribe received all process to which it was entitled: a meaningful opportunity to comment and consult, and a decision based on reasoned consideration of a sizeable record developed over a period of two years,” the company said in its brief.

The brief outlines the Army Corps of Engineers’ environmental assessment process for the pipeline and the Obama administration’s added layers of review last fall, concluding that “it is hard to imagine a case where more robust process was afforded.”

It notes, for example, that the Army Corps responded to Standing Rock’s concerns during the environmental assessment process by requiring added safety features like double-walled pipes, shut-off valves at the Lake Oahe crossing and fiber-optic pipeline monitoring.

The brief also takes issue with allegations that the pipeline was subject to an overly narrow environmental justice review. Standing Rock has argued that the Dakota Access review looked only a half-mile from the pipeline crossing and found that it would not disproportionately affect minority communities, ignoring the Standing Rock Indian Reservation another 0.05 mile from the review area.

Dakota Access lawyers defended the review process, noting that a half-mile is the standard scope of review for a linear project like a pipeline, and the Army Corps gave a “reasonable explanation” for the range.

“Standing Rock may disagree with this conclusion, but it was not arbitrary and capricious,” the company’s brief says.

The Army Corps will file its response to Standing Rock’s summary judgment motion next week.

Supporters of the pipeline, meanwhile, said they’re hopeful the court will ultimately rule in its favor.

“Going forward, we continue to appreciate Judge Boasberg’s careful consideration of this case and remain hopeful that the construction and operation of this pipeline will be completed in a safe and timely manner,” Midwest Coalition of Infrastructure Now spokesman Craig Stevens said in a statement.

Future of RFRA claim

Ducheneaux also vowed that the tribe is not done making arguments based on the Religious Freedom Restoration Act, which was the foundation of the preliminary injunction request.

Cheyenne River says the very presence of an oil pipeline beneath Lake Oahe would fulfill the Lakota people’s prophesy of a “black snake” that would destroy their land. The tribe says the project would desecrate waters used in religious practices and violate the religious freedom rights under RFRA.

The court rejected that argument yesterday, finding that Cheyenne River had raised the claim too late in the process and that the federal government’s approval of the Lake Oahe crossing likely did not amount to a “substantial burden” under the test used to weigh RFRA claims (Greenwire, March 7).

Ducheneaux said she disagrees with the ruling and noted that “there are several good bases for an appeal,” though the tribe has not yet decided whether to take its RFRA claims to the U.S. Court of Appeals for the District of Columbia Circuit. If it does appeal, she said the D.C. Circuit could block the pipeline from moving oil.

“If we wanted to appeal this decision, the court could enter an administrative injunction to preserve the tribe’s constitutional rights until it had an opportunity to resolve the appeal,” she said.

The RFRA claims are also part of broad updated complaints Cheyenne River and Standing Rock have asked the court to consider.