Special Report: Dakota Access Fails to Prevent Corps' Intent to Prepare EIS

The most recent -- but by no means the final -- chapter in the Dakota Access Pipeline saga played out in the District of Columbia District Court this week. On Monday, January 16, Dakota Access requested the court to enjoin the U.S. Army Corps of Engineers from publishing a Federal Register notice regarding its intent to prepare an Environmental Impact Statement (EIS). Will this notice create an additional legal hurdle that can't be undone by the new administration?

Dakota Access filed a motion, under the relatively obscure All Writs Act, asking the court to issue a preliminary injunction preventing the Corps from publishing a Federal Register notice regarding the EIS until the court had ruled on Dakota Access's pending claim that the Corps had already granted Dakota Access permission to build under Lake Oahe. Dakota Access has argued that the delivery of a written easement is merely a ministerial act that was not required for Dakota Access to proceed with construction. The All Writs Act allows federal courts to issue legal orders that are "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The use of the All Writs Act is viewed as an extraordinary remedy, typically reserved for the most critical circumstances, where no other relief is possible.   

In its filing, Dakota Access asked the court to require any opposing briefs from the Corps and the Standing Rock Sioux Tribe be filed by Thursday, January 19 and to schedule a hearing to consider issue. Before any of that could happen, on Tuesday, January 17, the Corps released a notice announcing its intent to prepare an EIS in connection with the Dakota Access project, and inviting public comment. The notice indicated that it would be formally published in the Federal Register on the next day, Wednesday, January 18.


In fact, the January 18, 2017 Federal Register contained the Corps's notice, which described the Corps' prior approval for Dakota Access's crossing of Lake Oahe, explained the Corps' December 4, 2016 decision to conduct further analysis, and solicited public comments in three areas:

1. Alternative locations for the pipeline crossing the Missouri River;
2. Potential risks and impacts of an oil spill, and potential impacts to Lake Oahe, the Standing Rock Sioux Tribe's water intakes, and the Tribe's water, treaty fishing, and hunting rights; and
3. Information on the extent and location of the Tribe's treaty rights in Lake Oahe.

Both the Corps of Engineers and the Tribe filed opposing briefs in response to Dakota Access's request, arguing, variously, that Dakota Access had not met the high standards required for relief under the All Writs Act; that Dakota Access had not established a likelihood of irreparable harm; and that Dakota Access's concerns could be appropriately addressed within the briefing schedule already established by the court. On Wednesday, January 18 Judge James Boasberg of the D.C District Court denied Dakota Access's motion, ending this latest chapter of the Dakota Access saga.

As we have reported previously, the path forward for Dakota Access may very well depend on the actions of the new administration. Just as the Corps reversed its July 2016 decision to allow construction to proceed, the Corps under new management as of January 20, can reverse its reversal, and allow for construction to proceed. This week's litigation was most likely intended to restrain the Corps from actions that would have to be unwound by the new administration, and thus lessen the issues that the Tribe can raise in any new legal proceeding that will almost certainly follow a decision by the Corps to, again, allow construction.