Eighteen AGs Filed Amicus Brief in Support of Tribes Challenging Unlawful Approval of Dakota Access Pipeline

SEPTEMBER 23, 2020

Massachusetts Attorney General Maura Healey led a coalition of 18 attorneys general in filing an amicus brief in support of Native American tribes challenging the U.S. Army Corps of Engineers’ decision to re-approve a key easement for the Dakota Access Pipeline based on a still-deficient National Environmental Policy Act (NEPA) review. The amicus brief was filed in the U.S. Court of Appeals for the D.C. Circuit, which is considering pipeline proponents’ appeal of a district court’s decision to vacate an easement granted by the Army Corps for the pipeline to cross beneath Lake Oahe, a vital source of drinking water for the Standing Rock Sioux. In their brief, the attorneys general urged the D.C. Circuit to affirm vacatur, which they noted is not only well within the district court’s discretion, but in fact “flows directly from NEPA’s mandate” and “is an important tool to disincentivize a rush to complete a project in the face of legal challenges” to an agency’s NEPA analysis. The attorneys general also noted that the project’s proponents “seek to subvert NEPA ... by advancing as their ‘central’ argument the economic harm that Dakota Access and industries that rely on the pipeline would allegedly suffer,” despite the well-established fact that “preventing a project proponent’s economic injury is not one of NEPA’s objectives.” The attorneys general concluded that “[f]or NEPA to matter, there must be significant consequences for non-compliance.”