The Nickel Report

There has been much controversy in recent weeks surrounding the Dakota Access Pipeline (DAPL), a 1,172-mile line proposed to carry crude oil from North Dakota to Illinois. Although only 3 percent of the DAPL requires federal approval, much of the pipeline has already been constructed In particular, the DAPL has raised issues regarding the scope and adequacy of the US Army Corps of Engineers’ (Corps’) consultation with federal tribes in authorizing segments of oil and gas pipelines crossing federal waters, and has caused the administration to consider reforms for how tribes weigh in on infrastructure reviews.

Under the National Historic Preservation Act (NHPA), a federal agency must consider the effect of its “undertakings” (i.e., permit issuance) on property of historical significance, which includes property of cultural or religious significance to Native American tribes. The Corps must consult with the relevant tribes where an activity may have the potential to cause effects on properties of cultural or religious importance.

The DAPL would cross the Missouri River under Lake Oahe about a half mile north of the reservation of the Standing Rock Sioux Tribe (Tribe) in North Dakota. The Corps approved certain pipeline crossings of federal waters under Nationwide Permit (NWP) 12, which provides streamlined authorization under Clean Water Act (CWA) § 404 and Rivers and Harbors Act (RHA) § 10 for utility line activities with no more than minimal adverse effects on the aquatic environment. The Corps also approved certain crossings of areas used for federal civil works projects under RHA § 408. The Corps performed an Environmental Assessment (EA) under the National Environmental Policy Act (NEPA) and found that the DAPL segments authorized by the Corps would have “no significant impact” on tribal lands.

The Tribe filed suit in the US District Court for the District of Columbia, challenging the Corps’ authorization of the Lake Oahe DAPL segment. The district court denied the Tribe’s motion for preliminary injunction, finding the Corps has likely complied with its obligations to consult with the Tribe under the NHPA and that Tribe has not shown it will suffer injury that would be prevented by an injunction. The district court recognized that the scope of the Corps’ involvement is limited to segments of the pipeline that cross federal waters, and that the Corps does not have the ability to regulate construction of the entire pipeline.

Although the Tribe’s efforts to enjoin construction of the Lake Oahe segment were rejected by the district court, in an unprecedented move, on September 9, 2016, the Departments of the Army, Justice and the Interior stated the government would agree to temporarily halt construction of the Lake Oahe segment until the Corps “can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under [NEPA] or other federal laws.” Two weeks later, the administration announced that it is considering reforms on tribal consultation on infrastructure reviews and laid out an “aggressive consultation schedule” to engage with tribes in meetings across the country from October 25–November 21. Representatives of each of the 567 federally recognized tribes are invited to participate, and there will also be an opportunity for them to provide written input.

The DAPL case emphasizes the importance of coordinating early with relevant tribes and understanding potential impacts of a proposed project on cultural resources. Looking ahead, the administration’s engagement with the tribes could lead to future legislation or regulations overhauling procedures for tribal involvement in infrastructure reviews. In particular, it could lead the Corps to revise its NHPA regulations.

Other federal agencies that authorize aspects of pipelines and other infrastructure projects, such as the Federal Energy Regulatory Commission, could follow suit.