Judge James Boasberg’s 91-page decision says U.S. Army Corps ‘did not adequately consider’ oil spill impacts; no ruling on whether to keep DAPL operational

Indian Country Media Network, June 14, 2017

The U.S. Army Corps of Engineers violated the law in its fast-tracked approval of the Dakota Access Pipeline (DAPL), a U.S. District Court Judge in Washington D.C. has ruled. Judge James Boasberg said the Corps did not consider key components of the National Environmental Policy Act (NEPA) in granting the Lake Oahe easement under the Missouri River when directed to do so by President Donald Trump shortly after his swearing-in.

The Standing Rock Sioux Tribe, with the Cheyenne River Sioux as interveners, had challenged the approval on the grounds that adequate environmental study had not been conducted. Boasberg agreed on many points, though he did not rule on whether the pipeline should remain operational. It has been carrying oil since June 1.

“Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial,” Boasberg said in his 91-page decision. “To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.”

A status conference will be held next week, according to the environmental law firm EarthJustice, which is representing the tribes in this case. Energy Transfer Partners, the pipeline’s builders, did not respond to requests for comment by press time.

“This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing,” said Standing Rock Sioux Chairman Dave Archambault II in a statement. “The previous administration painstakingly considered the impacts of this pipeline and President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests. We applaud the courts for protecting our laws and regulations from undue political influence, and will ask the Court to shut down pipeline operations immediately. ”

The fight over the 1,172-mile-long pipeline that runs hotly contested through four states has been the source of controversy since it was first proposed. The Standing Rock Sioux Tribe became the flashpoint for the issue when thousands of water protectors and hundreds of tribes gathered at camps along the Missouri River over the summer of 2016. They were protesting the routing of the pipeline through treaty lands—especially in light of the fact that it had been rerouted from more affluent Bismarck for the same reason the tribe didn’t want it nearby, because of the danger to drinking water—in a conflict that involved a militarized police force.

“This decision marks an important turning point. Until now, the rights of the Standing Rock Sioux Tribe have been disregarded by the builders of the Dakota Access Pipeline and the Trump Administration—prompting a well-deserved global outcry,” said Earthjustice attorney Jan Hasselman in a statement. “The federal courts have stepped in where our political systems have failed to protect the rights of Native communities.”

Energy Transfer Partners statement

“On June 14, 2017, Judge Boasberg of the District Court for the District of Columbia issued an Order and found that the U.S. Army Corps of Engineers substantially complied with the National Environmental Policy Act. The Court remanded two discrete issues to the Corps for further explanation and review.

“Pipeline operations can and will continue as this limited remand process unfolds.

“It is important to note that while Judge Boasberg asked the Corps to provide greater substantiation for its conclusions, the Court did not find the prior determinations to be erroneous. Per the Court’s order, there will be further briefing on whether the Corps’s determinations should continue or be vacated while the Corps reconsiders the issues on remand.

“Dakota Access believes the record supports the fact that the Corps properly evaluated both issues, and that the record will enable the Corps to substantiate and reaffirm its prior determinations.”

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