United States: D.C. District Court Determines That Dakota Access Environmental Assessment Was Inadequate

Last Updated: June 28 2017
Article by Amy K. Lehr

On June 14, 2017, the District Court for the District of Columbia issued a decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The Court found that the Army Corps of Engineers ("the Corps") had not adequately considered several issues in its environmental assessment ("EA") for the Dakota Access Pipeline, and that therefore the Corps' decision-making was arbitrary and capricious.

The EA was undertaken pursuant to the National Environmental Policy Act ("NEPA"), which requires that any permitting federal agency take a "hard look" at the environmental impacts of a federally permitted project. A federal agency must take a "hard look" but has substantial discretion regarding whether to permit a project so long as the agency's review is not arbitrary and capricious. Although the District Court found much of the EA to be adequate, it found the Corps' EA to be arbitrary and capricious in certain key areas, as described below.

Controversial Impacts from a Scientific Perspective

The Court found that the Corps failed to consider the extent to which the pipeline's effects might be controversial from a scientific perspective, which can be a basis for the Corps to find that a project might have significant impacts on the environment. Such a finding would in turn prompt the Corps to carry out an Environmental Impact Statement ("EIS").

Notably, an EIS is lengthier and typically involves more formal consultation than an EA. Whether the Corps should have carried out an EIS for the pipeline's crossing at Lake Oahe, just upstream of tribal reservation land, is a key source of contention in the lawsuit.

The Potential Effects of an Oil Spill

The Court also found that the Corps failed to adequately consider the effects of an oil spill, which led to several deficiencies in its EA.

For example, the Court found that the Corps did not adequately consider the potential impacts of a spill on several tribal treaty rights, including fishing and hunting rights on and near Lake Oahe. The Court did find, however, that the Corps had adequately considered potential impacts of a spill on tribal water rights.

The Court also found that the Corps' environmental justice methodology was faulty, as it focused only on construction impacts on majority white and relatively well-off communities within 0.5 miles of the Lake Oahe crossing, even though a spill could affect communities more than 0.5 miles downstream from the crossing.

The Standing Rock Sioux Tribe is located 0.55 miles downstream from the crossing but was not part of the main environmental justice analysis. The final EA devoted a separate section to environmental justice impacts specifically on the Standing Rock Sioux, but the Court criticized the Corps' analysis because it focused on construction impacts and barely mentioned spill impacts, even though the Court suggested that the latter are of greatest relevance because the tribe is downstream and relies on water from Lake Oahe.

What Now?

The Court remanded the matter to the Corps for reconsideration. This could lead to a revision of the Corps's EA, or could prompt an EIS.

The Court noted that in most instances the remedy in such a situation is to vacate the administrative decision and halt the activity until the administrative process is adequately carried out, but there are exceptions.  The Court asked the parties to brief whether the Dakota Access should be allowed to continue to operate the pipeline during the Corps' review process.

Protection for Tribal Rights

Notably, the decision confirms several of the tribes' bases for claiming that the Corps' EA was inadequate. The decision may lead to stronger protection of tribal rights in the future.

For instance, it will almost undoubtedly prompt the Corps to devote more time in the future to analyzing the potential impacts of oil spills on treaty rights and to environmental justice considerations. The Corps' permitting decisions have been overturned a number of times for failure to adequately consider reserved treaty rights, such as hunting and fishing rights, but never in such a high-profile case. The decision may also cause the Corps to select a zone for the environmental justice analysis that is more than 0.5 miles downstream at water crossings.

Future of the Pipeline

It is possible that Dakota Access will face a temporary halt in its operations, although the Court may instead rule that the company can continue to operate the pipeline during the Corps' deliberations. This creates a degree of uncertainty that could have business implications for the pipeline and the company that constructed it.

Over the next few months, however, it is quite possible that the Corps will take the statutorily mandated "hard look" required by NEPA and re-approve the project — with or without an EIS. The tribes could, of course, further litigate the issues after the Corps's new evaluation, increasing uncertainty and cost for the project. One of the parties might also appeal the District Court's decision, which would create a more extended period of uncertainty.

Considerations for Financial Institutions

Meanwhile, the case and related controversies may have an effect on standards that financial institutions apply to such projects.

On May 18, 2017, presumably in reaction, at least in part, to strong public criticism of the institutions financing the Dakota Access Pipeline, the Equator Principles financial institutions — which include 80 banks, such as Citigroup, Barclays, Credit Suisse, Wells Fargo, and JP Morgan — launched a working group to examine whether they should continue to assume that domestic law is adequate in high-income countries.

The Equator Principles financial institutions, which provide the vast majority of the world's project finance, apply the IFC Performance Standards — a specific set of environmental and social screens — to their review of investments in developing countries. At the moment, these standards are not applied to projects in high-income countries such as the United States, where domestic law is currently deemed to be sufficient. Notably, 10 of the 80 Equator Principles financial institutions — including ABN Amro and BNP Paribas — recently issued a statement calling for application of the IFC Performance Standards in high-income countries.

More information on some of the differences between the IFC Performance Standards and U.S. law — as they relate to indigenous peoples, security, and community engagement — can be found in a recent report, published by Foley Hoag, that was commissioned by the financial institutions that lent to the Dakota Access pipeline. More information about the Foley Hoag report is available here.

To view Foley Hoag's Corporate Social Responsibility Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions