Army Corps Re-Starts Dakota Access

Today, the U.S. Army Corps of Engineers announced that it will deliver the long anticipated easement to Dakota Access to allow the construction of the much delayed $3.7 billion project to be completed.

In documents filed at the federal District Court in Washington DC, the Corps announced that it had made the required notification to Congress of its plan to deliver the easement to Dakota Access. In reaching its decision, the Corps indicated that it had conducted a full review of the administrative record and had concluded that there was no cause for completing any additional environmental analysis.

In a memorandum documenting its compliance with President Trump's Presidential Memorandum Regarding Construction of the Dakota Access Pipeline, the Corps explained that the administrative record, including the Corps' July 2015 Environmental Assessment, satisfied all applicable requirements of the National Environmental Policy Act, as well as all other relevant legal requirements. Consequently, the Corps noted, the directive issued on December 4, 2015 by President Obama's Assistant Secretary of the Army for Civil Works withholding the easement and directing the conduct of an Environmental Impact Statement "must be rescinded."

As we have reported, the Standing Rock Sioux Tribe is prepared to contest this development, and may seek to prevent Dakota Access's newly approved construction activities, the operation of the pipeline, and/or the decision to not conduct the Environmental Impact Statement. The Tribe will likely seek a restraining order to prevent the operation of the pipeline, as it has long maintained that the operation of the pipeline threatens the area's drinking water. The Tribe is also likely to challenge the Corps' decision to forgo the conduct of the Environmental Impact Statement; the Tribe's counsel, during yesterday's status conference, proclaimed that not conducting the Environmental Impact Statement "would be illegal." Given the Corps' pronouncement that it will not conduct the Environmental Impact Statement, the Tribe could immediately contest that decision in the federal District Court in Washington, DC, where the Tribe has been contesting various issues associated with the Dakota Access pipeline.