Dakota Access to Justice and Pipeline Politics: Tribal Consultation, Environmental Justice and Rules of Engagement

Burleson, Elizabeth , Dakota Access to Justice and Pipeline Politics: Tribal Consultation, Environmental Justice and Rules of Engagement ENVIRONMENTAL LAW TREATISE 2ND ED. (William Rodgers and Elizabeth Burleson ed. Thomson Reuters / West 2016-18)

118 Pages Posted: 20 Apr 2017

See all articles by William H. Rodgers

William H. Rodgers

University of Washington - School of Law

Elizabeth Burleson

BurlesonInstitute.org; London School of Economics (LSE)

Date Written: March 15, 2017

Abstract

The Dakota Access pipeline would transport 470,000 barrels a day to the Midwest and Gulf Coast—representing half of current Bakken crude production. The Standing Rock Tribe has pointed out that abandoning the full environmental impact statement review amounts “to a wholly unexplained and arbitrary change based on the president’s personal views.” President Donald J. Trump owned as much as $1 million in Energy Transfer Partners that he has sold since 2015 while former Texas Governor Rick Perry, Mr. Trump’s choice for Department of Energy Secretary, served on the board of Energy Transfer Partners. By Dec. 4, 2016, 10,000 protestors, including Veterans, had gathered and the US Federal government halted DAPL construction. Yet, by February 2017 construction was once again underway.

Not all legal systems are just. John Rawls developed the veil of ignorance as a philosophical tool with which to assess the fairness of social decisions. The general sense that one may be benefited or negatively impacted by a social contract should lead decision-makers to be impartial. Public participation in environmental decision-making can lead to just outcomes for the same reasons. Decisions are more likely to be fair and based upon a deep consideration of the implications.

In contrast to a pipeline path routed a half-mile north of the Standing Rock Sioux Reservation, an earlier proposed Dakota Access Pipeline route would have crossed the Missouri River roughly 10 miles north of Bismarck, but was rejected as a threat to Bismarck’s water supply. Rev. Jesse Jackson called the reroute “the ripest case of environmental racism I've seen in a long time.”

Calling for a fair, accurate and lawful environmental impact statement to identify true risks to treaty rights, including water supply and sacred sites, Tribes promptly exercised their rights of access to justice by bringing several legal claims ranging from human rights to substantive and procedural environmental due process violations.

The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe (the “Tribes”) have requested the Inter-American Commission on Human Rights to call on the United States to adopt precautionary measures to prevent harm to the Tribes, their members, and others resulting from the ongoing and imminent construction of the Dakota Access Pipeline (DAPL). They also request that the Commission call upon the United States to protect these people and peoples from the harassment and violence while gathered in prayer and protest of DAPL. The Tribes argue that the U.S. Army Corps of Engineers (the Corps) failed adequately to assess DAPL potential environmental impacts. The Corps disregarded the Tribes’ consistent objections to construction of the pipeline. The Tribes have asked the Inter-American Commission on Human Rights to call on the United States to protect the rights of the Tribes.

Keywords: Dakota Access Pipeline, NEPA, Environmental Impact Assessment (EIA), Public Participation, Environmental Justice & Tribal Trust, Water Law, Inter-American Commission, Federal Indian Law Treaties, Human Rights, Energy Security, Indigenous, Indian, International Law, Watershed protection and Land Use

JEL Classification: A1,C8,D1,D4,D6,D7,D8,D9,E2,E6,F,F4,H1,H2,H4,H5,H7,H8,I1,I18,I19,I2,I3,J1,K1,K2,K3,K4,L1,N40,N5,N7,O1

Suggested Citation

Rodgers, William H. and Burleson, Elizabeth, Dakota Access to Justice and Pipeline Politics: Tribal Consultation, Environmental Justice and Rules of Engagement (March 15, 2017). Burleson, Elizabeth , Dakota Access to Justice and Pipeline Politics: Tribal Consultation, Environmental Justice and Rules of Engagement ENVIRONMENTAL LAW TREATISE 2ND ED. (William Rodgers and Elizabeth Burleson ed. Thomson Reuters / West 2016-18). Available at SSRN: https://ssrn.com/abstract=2954308

William H. Rodgers

University of Washington - School of Law ( email )

4293 Memorial Way
353020
Seattle, WA 98195-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=154

Elizabeth Burleson (Contact Author)

BurlesonInstitute.org ( email )

London School of Economics (LSE) ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

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