DAPL Court Ruling a Mixed Bag: Reveals Deeply Flawed Environmental Justice Review, but Weak on Treaty Rights

A recent court ruling on the Dakota Access Pipeline (DAPL) is stunning for what is reveals about how the U.S. Army Corps of Engineers conducted its so called “environmental analysis” of the project.

The June 14 decision by U.S. District Court Judge James Boasberg will require the Corps to go back and do the analysis correctly. He left open the possibility that the court could shut down the pipeline until these issues are resolved. That decision will come at a later hearing.

The court ruling says the Corps analysis “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice.” Read more deeply into the decision, and it raises questions about whether the Corps is simply oblivious to the concept of environment justice or whether its staff willfully slanted the review to get the outcome it wanted.

(In a related matter, the Trump administration has proposed eliminating the Environmental Justice Program altogether and making deep cuts to other civil rights services. See this CNN story.)

According to the court decision on DAPL: “The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations.”

The problem with the Corps’ environmental justice analysis boils down to this: It drew such a tiny circle defining the project’s impact area that it excluded the Standing Rock Nation from consideration.

That’s right. The Corps’ environmental justice analysis only looked at the impact on a predominantly white community mostly upstream from where DAPL crossed under Lake Oahe. It did not consider the impact on the Lakota people of the Standing Rock Nation just downstream from the crossing — the community that would be impacted by any spill.

Secret DAPL Analysis Withheld from Tribes: Government Memo Spotlights Flawed Process

In the waning days of the Obama administration, the top lawyer for the U.S. Department of Interior wrote about significant flaws in the permitting process for the Dakota Access Pipeline (DAPL) easement under the Missouri River at Lake Oahe. The government had not honored federal trust responsibilities to consult with Native nations. Worse, the government had kept key environmental analysis secret, unavailable for review by Native nations and the general public. Worse yet, some of the analysis was simply inaccurate — and since it was secret it couldn’t be challenged.

The 38-page memo is from Hilary Tompkins, the Department of Interior’s solicitor, to the Secretary. The conclusion is this:

[T]here is ample legal justification for the Corps to exercise its discretion to suspend or revoke the existing Section 408 permit and/or postpone a decision on the proposed easement conditional on additional analysis
and government-to-government consultation concerning the tribal-specific issues discussed in this Memorandum … If the Corps ultimately does decide to authorize the easement, additional tribal consultation is necessary to develop conditions for the authorization that will protect the Tribes’ rights and interests in and around Lake Oahe. (page 35)

Disturbingly, the Dec. 4 memo details problems with the government’s process that until recently have been hidden.