Eighteen AGs File Amicus Brief in Support of Tribes Challenging Unlawful Approval of Dakota Access Pipeline

Washington, D.C. — A coalition of 18 attorneys general led by Massachusetts Attorney General Maura Healey filed an amicus brief today in support of Native American tribes challenging the U.S. Army Corps of Engineers’ decision to re-approve a key easement for the Dakota Access Pipeline based on a still-deficient National Environmental Policy Act (NEPA) review. The four tribes challenging the decision are the Standing Rock Sioux, Cheyenne River Sioux, Oglala Sioux and Yankton Sioux.

The AGs’ amicus brief was filed in the U.S. Court of Appeals for the D.C. Circuit, which is currently considering pipeline proponents’ appeal of a district court’s decision to vacate an easement granted by the Army Corps for the pipeline to cross beneath Lake Oahe, a vital source of drinking water for the Standing Rock Sioux. In their brief, the attorneys general urge the D.C. Circuit to affirm vacatur, which they note is not only well within the district court’s discretion, but in fact “flows directly from NEPA’s mandate” and “is an important tool to disincentivize a rush to complete a project in the face of legal challenges” to an agency’s NEPA analysis.

“It’s no secret that our country has ignored the rights and needs of Native American tribes, taken their land and resources, and left them with little recourse,” said AG Healey. “This pipeline was rubber stamped by the Trump Administration without consideration of the concerns raised by the indigenous community. We urge the Court to enforce our country’s bedrock environmental law protections and shut down the Dakota Access Pipeline.”

The attorneys general emphasize that vacatur was entirely appropriate and should be affirmed, as “[c]ourts have repeatedly confirmed what NEPA’s text and purpose dictate: federal agencies are required to comply with NEPA beforethey take final action” — a mandate the Army Corps failed to heed. The attorneys general also note that the project’s proponents “seek to subvert NEPA ... by advancing as their ‘central’ argument the economic harm that Dakota Access and industries that rely on the pipeline would allegedly suffer,” despite the well-established fact that “preventing a project proponent’s economic injury is not one of NEPA’s objectives.” The attorneys general conclude that “[f]or NEPA to matter, there must be significant consequences for non-compliance.”

“Under NEPA, the federal government cannot grant final project approvals without first completing legally-sufficient environmental reviews. Because four Native American tribes successfully demonstrated that the federal government failed to do so here, its approval for the Dakota Access pipeline was ‘fatally infect[ed]’ and cannot be treated as valid.” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “As the state attorneys general eloquently explained in their brief, the federal government — which has a dual responsibility to enforce NEPA and fulfill its trust responsibility to the tribes — must ‘compel the United States to fulfill the promise of environmental protection enshrined in NEPA and the United States’ promise to protect Tribes and the natural resources on which they depend — a promise far too often broken.’”

The attorneys general of California, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, Washington, D.C. and Guam, as well as Harris County, Texas, joined AG Healey in filing the amicus brief.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.