Press Release

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

Coalition urges court to protect tribes’ rights by affirming vacatur of pipeline easement, emphasizing that “for NEPA’s promise to be fulfilled, NEPA violations must have consequences."

Wash­ing­ton, D.C. — A coali­tion of 18 attor­neys gen­er­al led by Mass­a­chu­setts Attor­ney Gen­er­al Mau­ra Healey filed an ami­cus brief today 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 four tribes chal­leng­ing the deci­sion are the Stand­ing Rock Sioux, Cheyenne Riv­er Sioux, Oglala Sioux and Yank­ton Sioux.

The AGs’ ami­cus brief was filed in the U.S. Court of Appeals for the D.C. Cir­cuit, which is cur­rent­ly 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 urge the D.C. Cir­cuit to affirm vacatur, which they note 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.

It’s no secret that our coun­try has ignored the rights and needs of Native Amer­i­can tribes, tak­en their land and resources, and left them with lit­tle recourse,” said AG Healey. This pipeline was rub­ber stamped by the Trump Admin­is­tra­tion with­out con­sid­er­a­tion of the con­cerns raised by the indige­nous com­mu­ni­ty. We urge the Court to enforce our country’s bedrock envi­ron­men­tal law pro­tec­tions and shut down the Dako­ta Access Pipeline.”

The attor­neys gen­er­al empha­size that vacatur was entire­ly appro­pri­ate and should be affirmed, as “[c]ourts have repeat­ed­ly con­firmed what NEPA’s text and pur­pose dic­tate: fed­er­al agen­cies are required to com­ply with NEPA beforethey take final action” — a man­date the Army Corps failed to heed. The attor­neys gen­er­al also note 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 con­clude that “[f]or NEPA to mat­ter, there must be sig­nif­i­cant con­se­quences for non-com­pli­ance.”

Under NEPA, the fed­er­al gov­ern­ment can­not grant final project approvals with­out first com­plet­ing legal­ly-suf­fi­cient envi­ron­men­tal reviews. Because four Native Amer­i­can tribes suc­cess­ful­ly demon­strat­ed that the fed­er­al gov­ern­ment failed to do so here, its approval for the Dako­ta Access pipeline was fatal­ly infect[ed]’ and can­not be treat­ed as valid.” said David J. Hayes, Exec­u­tive Direc­tor of the State Ener­gy & Envi­ron­men­tal Impact Cen­ter. As the state attor­neys gen­er­al elo­quent­ly explained in their brief, the fed­er­al gov­ern­ment — which has a dual respon­si­bil­i­ty to enforce NEPA and ful­fill its trust respon­si­bil­i­ty to the tribes — must com­pel the Unit­ed States to ful­fill the promise of envi­ron­men­tal pro­tec­tion enshrined in NEPA and the Unit­ed States’ promise to pro­tect Tribes and the nat­ur­al resources on which they depend — a promise far too often bro­ken.’”

The attor­neys gen­er­al of Cal­i­for­nia, Con­necti­cut, Delaware, Illi­nois, Maine, Mary­land, Michi­gan, Neva­da, New Jer­sey, New Mex­i­co, New York, Ore­gon, Rhode Island, Ver­mont, Wash­ing­ton, Wash­ing­ton, D.C. and Guam, as well as Har­ris Coun­ty, Texas, joined AG Healey in fil­ing the ami­cus brief.

###

About the State Ener­gy & Envi­ron­men­tal Impact Cen­ter
The State Ener­gy & Envi­ron­men­tal Impact Cen­ter (State Impact Cen­ter) is a non-par­ti­san Cen­ter at the NYU School of Law that is ded­i­cat­ed to help­ing state attor­neys gen­er­al fight against reg­u­la­to­ry roll­backs and advo­cate for clean ener­gy, cli­mate change, and envi­ron­men­tal val­ues and pro­tec­tions. For more infor­ma­tion, vis­it our web­site.