October 2, 2020– Tamuning, Guam – Attorney General Leevin Taitano Camacho joined a coalition of 18 states, territories and a county in urging the U.S. Court of Appeals for the District of Columbia to affirm a lower court’s ruling shutting down the Dakota Access Pipeline because the U.S. Army Corps of Engineers (Corps) failed to fully assess the potential impact of an oil spill from the pipeline on the environment and the natural resources that Native American tribes depend on in an environmental impact statement as required by the National Environmental Policy Act (NEPA).
According to the brief, which supports the Standing Rock Sioux, Cheyenne River Sioux, Oglala Sioux, and Yankton Sioux Tribes, the Corps decision to grant an easement for the construction of a portion of a 1,200 mile pipeline to transport more than a half million gallons of oil a day under a lake that the Tribes rely on for drinking water and religious ceremonies “follow[ed] a familiar pattern” of the federal government failing to “fulfill the promise of environmental protection enshrined in NEPA[.]”
“We are proud to stand with the many Native American tribes whose rights to traditional lands, territories and resources have all too often been trampled upon,” said Attorney General Camacho. “NEPA is one of the last lines of defense that communities have to protect their cultural and natural resources, and allowing the pipeline to operate before an environmental assessment has been completed violates the spirit and letter of the law.”
The U.S. District Court for the District of Columbia found the Corps violated 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 observing that, “When it comes to NEPA, it is better to ask for permission than forgiveness: if you can build first and consider environmental consequences later, NEPA’s action-forcing purpose loses its bite.”
The coalition argues in its brief that judicial decisions which 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. The coalition also argues that both the Corps and Dakota Access are trying 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 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 August 2020, Attorney General Camacho joined a lawsuit to protect NEPA, one of the nation’s most important environmental laws.
A copy of the brief can be found here.
Massachusetts Attorney General Maura Healey led the brief and was joined by Attorney General Camacho and by the attorneys general of California, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia and Harris County, Texas.