Overpass Light Brigade
May 27, 2020

LPLP Submits Amicus Brief to DAPL Judge

Kelsey Hill

More than four years after #NoDAPL protests at Standing Rock activated people around the world, there is a new turn in the legal drama concerning the Dakota Access pipeline (DAPL). In March of this year, Federal Judge James Boasberg ruled that the environmental permits for the controversial pipeline violated National Environmental Policy Act (NEPA) requirements and a new environmental assessment must be conducted. However, as the judge has not yet vacated key permits, oil continues to flow under Lake Oahe, the sole source of drinking water for the Standing Rock Sioux Tribe.

Last week, the Tribe filed a consolidated legal brief with the Cheyenne River, Yankton, and Oglala Sioux Tribes asking the Court to vacate all permits that authorize DAPL under Lake Oahe as remedy for the NEPA violation.

In support of the lead legal team from Earthjustice, Lakota People’s Law Project (LPLP) attorneys Daniel Sheehan and Lanny Sinkin filed an amicus curiae (“friend of the court”) brief in the Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers case. LPLP’s attorneys are arguing that the law mandates DAPL operations cease while a new environmental assessment is performed. As the Environmental Impact Statement (EIS) will likely not be completed until 2021 at the earliest, LPLP’s brief urges Boasberg to stop oil flow due to the potential danger posed to tribal communities.

Moreover, LPLP’s brief argues that continued oil flow in the absence of an EIS presents a legal contradiction that undermines the U.S. regulatory administration process as a whole. Because federal environmental laws were violated in DAPL’s permitting process, the plaintiffs are entitled to receive judicial relief in the form of vacatur, or the revoking of permits that allow oil to continue flowing in the interim. Failure to vacate the permits allowing oil flow under Lake Oahe, even when DAPL and its parent company knew the risk of continuing business amid ongoing litigation, is to make a farce of our legal system.

“If vacatur is denied,” the brief reads, “Tribes would now understand that litigating against the government was meaningless and tantamount to a bait and switch designed to fool those naive enough to believe that the rule of law still has efficacy.”

LPLP’s 2017 television ad (above) argued that, in order for the pipeline to carry oil, a full EIS should have been required. LPLP circulated the ad in the D.C. market to help sway opinion in the nation’s capital.

A LEGAL TIMELINE

For a thorough sequence of events with links to filings, please go to Earthjustice’s website.

While millions of Americans are aware of the events that transpired on the ground during #NoDAPL, fewer are aware of the legal timeline that places DAPL in its current legal limbo.

Energy Transfer LP, a Dallas-based company, applied to the federal government first in 2014 to build DAPL: a 1,200 mile, $3.8 billion Bakken-crude line that would transfer oil to a distribution point in Illinois. The pipeline route originally skirted the Bismarck area in North Dakota, but was later rerouted to border the Standing Rock Sioux reservation and bore under Lake Oahe.

Sacred Stone, the first resistance camp near the pipeline water crossing, was founded on April 1, 2016, marking the official start of the NoDAPL ground movement.

In July 2016, U.S. Army Corps of Engineers (USACE) granted water crossing permits to Dakota Access, leading the Standing Rock Sioux Tribe to file suit, via representation by Earthjustice attorney Jan Hassleman, over concerns that the pipeline would spill and contaminate the tribe’s water. The case was assigned to Judge Boasberg, who has presided ever since. Later, the Oglala, Yankton, and Cheyenne River Sioux Tribes joined as intervenor plaintiffs.

During that summer, the Standing Rock Sioux Tribe filed both a preliminary injunction and a temporary restraining order attempting to stop ongoing construction of the pipeline. Boasberg denied the injunction in early Sept. 2016. Shortly after the decision, the Dept. of Justice, the Dept. of the Interior, and the Dept. of the Army issued two joint statements prohibiting federal agencies to authorize continued construction while the tribe’s past objections were reviewed. As the request to DAPL was voluntary, however, the pipeline company did not halt operations near Lake Oahe.

It’s beyond protest. I, for one, am not against pipelines. I’m an energy expert. I’ve been working on these kinds of things forever. But this particular pipeline is absolutely the worst of any example I’ve been around or involved in. There are so many things with this pipeline.

– Mechanical engineer Steve Martin of the Turtle Mountain Chippewa Tribe

During the late summer and fall of 2016, tensions began to escalate between water protectors and law enforcement/private paramilitary agents as the protest camps swelled in size. Then the mass arrests began. In what is now infamous footage of the protests, Democracy Now! journalist Amy Goodman covered an incident in which private security forces sicced attack dogs on unarmed Native protesters.

In Sept., Boasberg ordered construction to be temporarily halted but ultimately denied the tribe’s request to stop construction. That same month, DAPL construction teams bulldozed burial grounds near the water crossing.

"I surveyed this land and we confirmed multiple graves and specific prayer sites," Standing Rock Sioux Tribal Historic Preservation Officer, Tim Mentz, said in a statement. "Portions, and possibly complete sites, have been taken out entirely."

Despite the urging of federal departments, DAPL construction continued in Oct. of 2016.

In Nov., the USACE delayed the easement for DAPL to drill under Lake Oahe, pending further environmental review. In turn, DAPL parent company Energy Transfer Partners filed a lawsuit against the Corps over the easement delay.

Following the events of Nov. 20, 2016, when water protectors were brutalized by law enforcement with water cannons, tear gas, and Long Range Acoustic Devices (LRAD), the Water Protector Legal Collective (a project of the National Lawyers Guild) filed a class action lawsuit against law enforcement agencies involved.

Former president Barack Obama finally denied the easement for DAPL to drill under Lake Oahe in early Dec. of 2016, immediately after U.S. veterans “deployed” to Standing Rock to act as “human shields” for water protectors facing brutality and human rights violations. However, the easement denial was undone a month later by current President Donald J. Trump via an executive memorandum green-lighting both DAPL and Keystone XL pipelines to proceed with construction.

In January of 2017, Turkish firm ENVY released the findings from its independent investigation into DAPL’s safety systems. It reported that not only were DAPL's leak detection and response systems inadequate, but that dragging the pipeline hundreds of feet under Lake Oahe created the highest risk of leakage in the exact place it would cause the most harm.

The easement for DAPL was formally issued on Feb. 8, 2017. On April 4, 2017, DAPL leaked 84 gallons of oil at a pump station in South Dakota, and later, federal documents revealed another 100 gallons of oil leaked in North Dakota at a separate incident.

Mechanical engineer Steve Martin of the Turtle Mountain Chippewa Tribe noted in an interview with TRTWorld News “It’s beyond protest. I, for one, am not against pipelines. I’m an energy expert. I’ve been working on these kinds of things forever. But this particular pipeline is absolutely the worst of any example I’ve been around or involved in. There are so many things with this pipeline.” You can see the transcript from LPLP’s interview with Martin here.

In the aftermath of Trump’s executive order, water protectors were forcefully evicted from multiple protest camps at gunpoint. It would later come to light that military surveillance and counterterrorism tactics were used on protesters throughout the final eight months of the movement, and that some of the parties who executed these tactics were hired by DAPL’s operators.

The lawsuit continued, despite DAPL coming online in April and its initiation of oil shipments beginning in June of 2017. That same month, Boasberg handed Standing Rock a small victory, acknowledging that the authorization of the pipeline did indeed violate several key areas of federal environmental law, and that the Trump administration had hastily issued project permits. Boasberg, however, did not shut off oil flow; instead, he requested further briefing.

Fast forward to 2018. The Standing Rock Sioux Tribe renewed its lawsuit, prolonging the case into 2019 and 2020. Finally, in March of 2020, Boasberg’s District Court granted the tribe’s request to revoke the federal permits for DAPL, citing violations of NEPA in the original 2016 rulings. The latest ruling requires a new EIS to be prepared by USACE.

Last month, USACE and DAPL, in response, filed briefs — along with six amicus briefs from friends of the oil industry, including the state of North Dakota — asking Boasberg to allow the flow of oil to continue while the EIS is prepared. The Standing Rock Sioux asked the D.C. Court this week to shut off DAPL’s oil flow in the meantime.

A ruling on whether oil passage can continue amid the EIS is expected this summer, but a date has not yet been scheduled.

Above: Oceti Sakowin DAPL resistance camp, Nov. 2016.


MOVING FORWARD

Because of the ongoing COVID-19 pandemic, the viability of Dakota Access is more questionable now than at any other point previously in this legal battle. Oil prices have fallen 60 percent globally, causing a 12 million barrel-a-day fall in production that marks a nine-year low for the market. Energy Transfer LP, which already had a net loss of $855 million in the first quarter of this year, is slashing another $400 million from its 2020 operating budget due to the current circumstances.

Boasberg striking down permits for DAPL also calls into question the viability of the expansion of the project, which was approved by the North Dakota Public Service Commission and Iowa Utilities Board earlier this year. The expansion aims to increase the pipeline’s capacity from 570,000 barrels a day to 1.1 million, once new pumping stations are operational. Under current demand, this endeavor not only seems unreasonable, but it is of questionable legality amid pending litigation.

Meanwhile, the call to shut down oil flow is growing louder.

Last week, Chair of the House Natural Resources Committee Raúl M. Grijalva (D-Ariz.) filed an amicus brief with 35 House and Senate colleagues — including Rep. Alexandria Ocasio-Cortez (D-N.Y.), Sen. Kamala Harris (D-Calif.), Sen. Ed Markey (D-Mass.), and Sen. Elizabeth Warren (D-Mass.) — advocating that the D.C. Court halt operations of DAPL, citing tribal and environmental concerns.

Numerous tribal entities, including the National Congress of American Indians, and conservation groups across the country also filed amici in support of the tribes’ request to stop oil flow immediately.

Despite the many hoops and hurdles that the Standing Rock Sioux Tribe’s legal team and allies have been forced to jump through, several truths are made abundantly clear by this latest Boasberg ruling: 1) The US Army Corps of Engineers failed to follow NEPA requirements when permitting DAPL; 2) Dakota Access knowingly took the risk of an operational shutdown when it built a pipeline based on an easement still being contested in court; and 3) The Court has no legal foundation for allowing oil to continue flowing. The just thing to do is to offer remedy for the plaintiffs by stopping the oil coursing through the Dakota Access pipeline before it’s too late.

“Justice delayed is justice denied. And in this case, justice delayed may mean catastrophe.”

The Lakota People’s Law Project has worked to compile a comprehensive archive chronicling both the social and legal records of NoDAPL. This blog is the first in a series that will begin to deliver content while the searchable archive is being constructed. Scholars, law professionals, journalists, or anyone interested can sign up for our newsletter to stay tuned for more information.