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Press Release AG Healey Leads Coalition Supporting Federal Court Order Shutting Down Dakota Access Pipeline

Files Brief Urging D.C. Circuit Court of Appeals to Affirm Strict Enforcement of National Environmental Policy Act
For immediate release:
9/23/2020
  • Office of Attorney General Maura Healey

Media Contact for AG Healey Leads Coalition Supporting Federal Court Order Shutting Down Dakota Access Pipeline

Chloe Gotsis

BOSTON Massachusetts Attorney General Maura Healey today led 18 states, territories and counties in urging the U.S. Court of Appeals for the District of Columbia to affirm a lower court’s ruling shutting down the pipeline because the U.S. Army Corps of Engineers (Corps) had failed to fully assess the potential impact of an oil spill from the Dakota Access pipeline on the environment and the natural resources that Native American tribes depend on.

In addition to protecting the interests of the tribes and supporting environmental justice in a case involving a harmful fossil fuel project that will exacerbate the climate crisis, the appeals court’s affirmance of the lower court’s ruling would renew longstanding legal principles that benefit Massachusetts, other states, and their residents in their own challenges to environmentally harmful projects within their communities and beyond.

“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,” AG Healey said. “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 brief supports the Standing Rock Sioux, Cheyenne River Sioux, Oglala Sioux, and Yankton Sioux Tribes in their challenge to the Corps decision to grant an easement to Dakota Access LLC to authorize the construction of a portion of a 1,200-mile pipeline to transport more than half a million gallons of oil a day under Lake Oahe. The tribes rely on Lake Oahe for drinking water, religious ceremonies, and other important tribal uses. The U.S. District Court for the District of Columbia found the Corps violated the National Environmental Policy Act (NEPA) by failing to complete an environmental impact statement before the agency granted the easement authorizing the pipeline. It marked the second time the district court had faulted the agency for violating NEPA regarding the project. The district court vacated the easement, requiring the pipeline’s shut down while the agency attempts a second time to comply with NEPA. Last month, the appeals court issued an interim order allowing the pipeline to continue to operate pending the resolution of further legal proceedings.

According to today’s brief, courts should, except in rare cases, vacate a federal agency’s action if it violates NEPA. NEPA, one of the nation’s most important environmental laws, is built on the common sense principle that the federal government must first fully analyze the potential environmental consequences of its proposed actions, disclose those impacts for public dialogue, and seek to use that knowledge to avoid or mitigate potential environmental harm. The brief contends that judicial decisions that leave in place an agency action that violates NEPA “incentivize federal agency decisionmakers to do the bare minimum and encourage project proponents to advance their projects as quickly as possible so that they may later claim” during potential litigation that there are severe economic consequences of vacating the agency action and stopping the authorized project.

In this case, the coalition argues in its brief that both the Corps and Dakota Access are seeking to subvert NEPA’s mandate requiring a full and comprehensive environmental review by claiming that shutting down the pipeline would cause widespread economic harm. Any potential economic harm was self-inflicted by Dakota Access, as it chose to proceed despite the Tribes’ challenge to the easement. Nullifying the easement and shutting down the pipeline as a result, the brief argues, is “particularly appropriate in this case where the Corps’ violation was serious and so much is at stake for the Tribes – sovereign entities in our federal system that have far too often been marginalized.”

The brief argues that federal court enforcement of compliance with NEPA is more important now than ever. “Today – in the midst of the devastating effects of a changing climate and increasing awareness that environmental harms are disproportionately borne by our most vulnerable and historically disenfranchised communities – it is more important than ever to fully understand, evaluate, and disclose for public dialogue the environmental effects of such federal actions,” the brief reads.

In May, AG Healey issued a brief on the environmental factors, including elevated exposure to such air pollution, that compound the COVID-19 pandemic’s disparate impact on low-income communities and communities of color in Massachusetts and the steps the state should take to address the longstanding impact of environmental injustice on these communities.

Today’s brief was led by AG Healey and joined by the attorneys general of California, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia, the Territory of Guam, and Harris County, Texas.

The amicus brief was authored by Seth Schofield, Senior Appellate Counsel in AG Healey’s Energy and Environment Bureau, with valuable assistance from administrative assistant and paralegal Jessica Young and paralegal Carly Pusateri in AG Healey’s Environmental Protection Division.

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Media Contact for AG Healey Leads Coalition Supporting Federal Court Order Shutting Down Dakota Access Pipeline

Office of Attorney General Maura Healey 

Attorney General Maura Healey is the chief lawyer and law enforcement officer of the Commonwealth of Massachusetts.
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