Aided by a brief filed by Vermont Law School's Environmental Advocacy Clinic, federal judge James Boasberg today ordered the shutdown of the Dakota Access Pipeline. Vermont Law School faculty members Hillary Hoffmann, Jim Murphy, and Ken Rumelt contributed to the historic ruling, filing the “friend of the court” amicus brief in the case earlier this summer on behalf of 37 members of Congress, including Senators Kamala Harris, Cory Booker, Elizabeth Warren, and Representatives Raul Grijalva, Alexandria Ocasio-Cortez, Debra Haaland (Pueblo of Laguna), and other champions of indigenous rights.
“It’s an incredibly important decision in light of the Trump administration’s efforts to dismantle environmental protections and avoid accountability—particularly for marginalized communities like Indian tribes,” said Ken Rumelt, Senior Attorney in VLS’s Environmental Advocacy Clinic.
The case centered on a section of the pipeline beneath the Missouri River near Lake Oahe, an important water source for the Standing Rock and Cheyenne River Sioux Tribes. In early 2017, the Army Corps of Engineers granted an easement permitting construction without first producing an Environmental Impact Statement (EIS)—a clear violation of the National Environmental Protection Act (NEPA). Although a federal court has since ruled twice that the Corps violated NEPA, the oil has continued flowing, while no EIS has been conducted.
In the amicus brief, the VLS professors argued that the court should shut down the pipeline until the EIS is complete as required by law. Not only would allowing the pipeline to continue undermine the sovereignty and treaty rights of local tribes—it would also undermine the central purpose of NEPA, which is to ensure that agencies properly evaluate the environmental impacts of projects before they begin. And that could set a dangerous precedent for potentially damaging projects across the country.
Today the court agreed, noting that the seriousness of the Corps’ deficiencies outweighs any potential negative effects of halting the oil flow. The court gave the pipeline company 30 days to empty the pipeline and cease operations pending completion of the EIS which will take at least a year—by which time a new administration may be in office with a different energy and environmental agenda.
“Today’s ruling is a win for the fundamental legal premise that federal agencies must look before they leap,” said Environmental Advocacy Clinic Director Jim Murphy. “The judge found that the pipeline poses a clear danger to the tribes' treaty waters and that the Corps utterly failed to correct mistakes in its rush to approve the project as directed by the President.”
“It’s also a victory for good government and protection of our waters and other resources,” said Professor Hillary Hoffmann. “And above all, it gives a voice to the marginalized communities who are most directly affected by major federal actions like the approval of potentially dangerous pipelines.”