SEHN

Visionary Science, Ethics, Law and Action in the Public Interest

Legal Background for Dakota Access January, 2017

By Carolyn Raffensperger

On Monday, January 23, 2017, the President signed a mix of presidential memoranda and executive orders that address Dakota Access, Keystone, and future pipelines.

–For a good overview of the difference between executive orders and presidential memos, see this: http://www.usatoday.com/…/executive-order-vs-pres…/96979014/

The major legal question for Dakota Access is whether they already have all the permits necessary and so the Environmental Impact Statement study is too late.

–Trump said that they will negotiate terms and conditions including that the pipe is manufactured in the US. The problem is DAPL’s pipe is already in the ground with the tiny exception of the Missouri River crossing. He is also claiming that it will create jobs. The jobs have already come and gone with the construction. There are no more jobs to be created.

This is a big chess game. Here’s the state of play.

There are several Dakota Access lawsuits currently before federal, North Dakota and Iowa courts. Two of the federal cases are litigating issues specific to the Tribes as well as some environmental matters. Iowa has a consolidated environmental and eminent domain case. North Dakota has a landowners suit alleging DAPL fraud. The federal and Iowa cases have already been heard and we are just awaiting decisions. Regardless of the decisions, they will be appealed.

In addition, Dakota Access has a case against the Army Corps of Engineers asserting that they have all the permits necessary to build across the Missouri River at Standing Rock. Judge Boasberg is hearing that case.

The Army Corps sided with the Tribe in the case before Boasberg and said DAPL did NOT have all the permits.

Last week the Army filed an intent to publish a notice in the federal register that it would be doing an Environmental Impact Statement. DAPL filed with the court that it should decide whether it has all the permits or not before beginning the EIS process and the Army should not be allowed to publish the notice.

Boasberg allowed the Army to publish the notice which began the EIS process but he has not yet decided the case.

Boasberg might still decide that DAPL does have all the permits and then the EIS will be thrown out.

The other court cases could also stop DAPL but those aren’t sure bets either.

Stay tuned…. #nodapl