On September 9, 2016, 30 minutes after winning and stopping the Standing Rock Sioux Tribe’s (“Sioux” or “Tribe”) request to enjoin the Dakota Access Pipeline (“DAPL”), the Obama administration upended the rule of law. The Departments of Justice, Army and the Interior issued a joint statement that the U.S. Army Corps of Engineers (“Corps”) “will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its pervious decisions regarding Lake Oahe site under the National Environmental Policy Act (“NEPA”) or other federal laws.” The Administration then asked the company to “voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

The DAPL is the latest energy touchpoint. Tribes from all over the U.S. are joining the Sioux as they construct a winter encampment on the Corps-managed land. Neil Young has penned a new anthem, “Indian Givers,” arguing “There’s a battle raging on sacred land/our brothers and sisters have to take a stand.” Green Party presidential candidate Jill Stein and movie actress Shailene Woodley (“The Secret Life of the American Teenager”) have been jailed in support of this energy infrastructure protest.

The DAPL is a 4-state, 1,172 mile pipeline built to transport North Dakota Bakken oil to an Illinois refinery by Energy Transfer, a Texas company. None of the pipeline right-of-way is located on Sioux land, but is within ½ mile of the reservation boundary; over 90% of the right-of-way is on private land. Only 3% of the pipeline requires federal approval and only 1% affects federal waters of the U.S. and, thus, the jurisdiction of the Corps.

The $3.8 billion pipeline is 60% complete at a cost of $1.6 billion dollars. The Corps right-of-way at issue is under Lake Oahe, a flood control project managed by the Corps on land that once was part of the Sioux reservation.

The DAPL needed a number of Clean Water Act (“CWA”) permits from the Corps. On July 25, 2016, the Corps issued its Final Environmental Assessment for 200 crossings (37 miles) of jurisdictional water of the U.S. under Nationwide Permit #12 (“NWP 12”). The CWA NWP 12 authorizes pipeline construction where the construction will affect no more than a half-acre of regulated waters at any single crossing. In addition, the Corps had to analyze several Rivers and Harbors Act of 1899 (33 U.S.C. § 408) section 408 permits including the one at issue to cross a federal flood control project, Lake Oahe.

Any “federal action” under NEPA and “federal undertaking” under the National Historic Preservation Act (“NHPA”), like the CWA permits here, triggers compliance with the procedural requirements of NEPA and NHPA. NHPA § 106, among other things, requires federal agencies to “consult” with Native Americans on impacts of “undertakings” to historical and cultural resources. The consultation is required whether or not the action is on reservation land – an historic or spiritual connection to the land suffices. Compliance is the act of consultation; consensus or approval by the Tribe is not required. The Corps approach is to consider each separate pipeline crossing as a single “undertaking” for NHPA purposes, but does not treat the entire pipeline as one undertaking. Therefore, each separate crossing has a narrow geographic focus (“area of potential effect”) for NHPA consultation.

In the Tribe’s injunction request to the D.C. District Court, the Sioux argued that the Corps did not adequately consult and that construction of the pipeline in this area threatens graves and sacred sites. The court in an exhaustive analysis of the Corps consultation action found that “this is not a case about empty gestures . . . the Corps and the Tribe engaged in meaningful exchanges that in some cases resulted in concrete changes to the pipeline’s route.”

For the Sioux, the inadequacy of the consultation was its crossing-by-crossing focus. The Tribe argued that consultation should focus on the entire length of the pipeline. Because the Corps refused this focus for the consultation, the Tribe would not formally consult. The Advisory Council on Historic Preservation, a federally chartered entity with a NHPA-directed role to play in consultations, became involved and disputed the Corps’ assertion that the entire pipeline was not subject to the Corps’ jurisdiction.

The current status of the DAPL is that the several emergency injunctions of construction for portions of the pipeline on either side of Lake Oahe have been lifted. The company continues its pipeline construction on fee land despite the Administration’s renewed request that they voluntarily stand down. The D.C. District Court is poised to consider the case on the merits, while the D.C. Circuit prepares to consider the appeal of the D.C. District Court’s September denial of the injunction. Meanwhile, the Administration has begun a nationwide consultation process with Native Americans to improve the NHPA consultation process. The Corps has told the court that it will make a decision on the Section 408 permit for the Lake Oahe crossing in “weeks not months,” but cautions that its decision could require additional process. This could include supplemental NEPA, an environmental impact statement (“EIS”) or additional NHPA consultation. It is anticipated that such action will occur after the first Tuesday in November.

But this case is bigger than the DAPL. It represents the latest stage in the 350.org “Keep It in the Ground” movement to stop not only oil and gas development but the necessary infrastructure to transport it to market. Over the last few years, oil and natural gas pipelines have faced environmental and climate change opposition across the U.S. In October, climate activists targeted 5 cross-border pipelines transporting Canadian oil sands petroleum to U.S. markets by shutting down valves. The “Keep It in the Ground” movement is an effort with serious safety and economic implications for the oil and gas industry.