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Beyond Dakota Access Pipeline: Energy Development and the Imperative for Meaningful Tribal Consultation

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Beyond Dakota Access Pipeline: Energy Development and the Imperative for Meaningful Tribal Consultation Denver Law Review Volume 95 Issue 3 Article 3 November 2020 Beyond Dakota Access Pipeline: Energy Development and the Imperative for Meaningful Tribal Consultation Troy A. Eid Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Troy A. Eid, Beyond Dakota Access Pipeline: Energy Development and the Imperative for Meaningful Tribal Consultation, 95 Denv. L. Rev. 593 (2018). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. BEYOND DAKOTA ACCESS PIPELINE: ENERGY DEVELOPMENT AND THE IMPERATIVE FOR MEANINGFUL TRIBAL CONSULTATION TROY A. EIDt ABSTRACT Federal agencies have a legal obligation to consult with Indian tribes on a government-to-government basis whenever projects require federal approval. The controversy over the Dakota Access Pipeline (DAPL) is re- shaping how tribes approach energy development. Protests and lawsuits against DAPL's owners delayed the pipeline for months and cost its in- vestors at least $750 million. The industry should learn from DAPL and rethink its approach to future energy projects involving tribes. This Article explains why the industry should embrace enhanced tribal consultation as a risk-management strategy. The adequacy of federal and state consultations with tribes on energy projects-not just whether the process occurs, but whether tribes' views are meaningfully considered in decision making-increasingly matters not only to tribes, but to policy makers and the courts. The private sector stands to gain by working pro- actively with tribes earlier in the project-planning process, including in pipeline routing decisions to address cultural resources concerns, and by encouraging tribes to participate in surveying, construction, and reclama- tion activities. Companies should also assist with project-related tribal em- ployment and make appropriate financial and in-kind assistance available to tribes to strengthen tribal officials' ability to participate meaningfully in consultations with federal and state decision makers. TABLE OF CONTENTS I. AN OIL PIPELINE BECOMES A HOUSEHOLD WORD... ............ 594 A. The Tribes'LitigationStrategy .................. ..... 595 1. Fast-Track Project Permitting ................. ..... 595 2. The Battle of Lake Oahe ............................. 596 t Troy A. Eid is a principal shareholder with the Denver office of Greenberg Traurig, LLP and co-chairs the firm's American Indian Law Practice Group. He advises pipeline projects and me- diates disputes between energy companies and tribes. Mr. Eid has twice received federal appointments: As the United States Attorney for the District of Colorado, appointed by President George W. Bush, and as Chair of the Indian Law and Order Commission, the independent advisory board to the Presi- dent and Congress on public safety reforms for America's 573 federally recognized Native American and Alaska Native nations, under President Barack Obama. A.B. Stanford University, J.D. The Uni- versity of Chicago Law School. A preliminary version of this Article received the "Best Paper Award" for 2017 from the American Bar Association Section on Environment, Energy, and Resources. 593 594 DENVER LAW REVIEW [Vol. 95:3 B. Executive Branch Intervention ................... ....... 597 1. President Obama Weighs In.............. ............. 597 2. President Trump Changes Course.. ........................ 598 II. How DAPL Is FUELING TRIBAL CONCERNS OVER ENERGY PROJECTS................................................... 599 III. WHY DEFICIENT TRIBAL CONSULTATION PRESENTS UNACCEPTABLE RISKS TO ENERGY PROJECTS ........ ........... 601 A. Pervasive Tribal Consultation in the Executive Branch............. 602 B. Enforcing 'Meaningful' Tribal Consultation Through the Courts ............................................... 602 IV. HOW THE ENERGY INDUSTRY GAINS BY SUPPORTING TRIBAL CONSULTATION ............................................ 604 A. Best Practices .................................. ..... 605 B. The Ruby PipelineProject ............................. 606 CONCLUSION: PREPARING FOR THE NEXT DAPL... .................. 607 I. AN OIL PIPELINE BECOMES A HOUSEHOLD WORD The United States depends on some 2.4 million miles of pipeline sys- tems to transport fossil fuels across the country.' None has garnered more recent attention than the Dakota Access Pipeline (DAPL).2 This $3.8 bil- lion, 1,172-mile crude oil pipeline, owned and operated by Houston-based Energy Transfer Partners, L.P., delivers crude oil produced in the Bakken region of North Dakota through South Dakota, Iowa, and Illinois to major refining, distribution, and export centers. 3 Commenced in 2014, DAPL fi- nally entered service last June after months of construction delays.4 Oppo- sition to DAPL, including from more than 100 federally recognized Native American tribes, peaked during the 2016 presidential campaign year.' At one point protest camps on and near the Standing Rock Sioux Reservation in North Dakota swelled to an estimated 10,000 people. 6 A total of 761 protestors were arrested.7 1. Where Are Liquids Pipelines Located?, PIPELINE 101, http://www.pipe- line 101 .org/Where-Are-Pipelines-Located (last visited Feb. 24, 2018). 2. See Justin Worland, What to Know About the Dakota Access Pipeline Protests, TIME (Oct. 28, 2016), http://time.com/4548566/dakota-access-pipeline-standing-rock-sioux. 3. Valerie Volcovici, Only the HardiestRemain at Dakota Protest Camp, REUTERS, Dec. 18, 2016, https://www.reuters.com/article/us-north-dakota-pipeline-camp/only-the-hardiest-remain-at- dakota-protest-camp-idUSKBN1470E4. 4. Associated Press, A Timeline ofthe Dakota Access Oil Pipeline, AP NEWS (Oct. 12, 2017), https://www.apnews.com/la00f95c83594dac931796a332540750. 5. Rebecca Solnit, Standing Rock Protests: This Is Only the Beginning, GUARDIAN (Sept. 12, 2016, 8:45 AM), https://www.theguardian.com/us-news/2016/sep/12/north-dakota-standing-rock- protests-civil-rights. 6. Volcovici, supra note 3; Reuters, Only the Hardiest Remain at Dakota Protest Camp, FORTUNE (Dec. 18, 2016), http://fortune.com/2016/12/18/dakota-access-protest-camp. 7. Associated Press, Authorities Drop 33 Cases Against Dakota Access Protestors, ABC NEWS (Apr. 22, 2017, 4:56 PM), http://abcnews.go.com/amp/US/wireStory/authorities-drop-33- cases-dakota-access-protesters-46959161. 2018] BEYOND DAKOTA ACCESS PIPELINE 595 Opposing DAPL through litigation in the federal courts, as the Stand- ing Rock Sioux Tribe did beginning in July 2016, later joined by the Chey- enne River Sioux Tribe (collectively, the Tribes), ultimately did not stop the project or alter the pipeline's final route.8 Yet a combination of sus- tained litigation supported by national legal advocacy organizations, re- lentless politicking, and on-the-ground protest activity delayed the pro- ject's completion by several months.9 By December 2016, project delays were costing DAPL's private investors more than $83.3 million per month and had already totaled $450 million.' 0 A. The Tribes 'Litigation Strategy Unlike interstate natural gas pipeline projects, which are nationally certificated by the Federal Energy Regulatory Commission (FERC), no federal agency has jurisdiction over crude oil pipelines such as DAPL." Instead, individual state regulatory commissions authorize each state's segment of a proposed interstate oil pipeline.' 2 The Tribes consequently targeted the U.S. Army Corps of Engineers in their litigation because the Corps has federal statutory authority whenever pipelines traverse jurisdic- tional waters of the United States. 13 Judge James E. Boasberg, of the United States District Court for the District of Columbia, considered each of the Tribes' lawsuits against the Corps.14 1. Fast-Track Project Permitting The Tribes' first line of legal attack concerned Nationwide Permit (NWP) 12, a streamlined Corps-permitting program for lineal infrastruc- ture projects such as pipelines.' 5 NWP 12 allowed DAPL to obtain a single permit for all water crossings in the four states except Lake Oahe, a reser- voir on the Missouri River.16 The Corps made the current version of NWP 12 available in 2012 to fast-track pipeline and other energy projects, 8. See Associated Press, supra note 4. 9. For a detailed account of DAPL-related litigation and tribal opposition to the project, see generally Timothy Q. Purdon et al., DAPL: Storm Clouds on the Horizon in Indian Country, 64 FED. LAW. 63, 63-66 (2017). 10. David Pitt, Pipeline Delays Cost Builder Millions, Risking ContractLoss, BISMARCK TRIB. (Dec. 6, 2016), http://bismarcktribune.com/news/state-and-regional/pipeline-delays-cost-builder-mil- lions-risking-contract-loss/article_3a 6abf7-b028-5152-b4ab-Oc6fdf0dbc8.html. 11. BRANDON J. MURRILL, CONG. RESEARCH SERV., R44432, PIPELINE TRANSPORTATION OF NATURAL GAS AND CRUDE OIL: FEDERAL AND STATE REGULATORY AUTHORITY 2, 7 (2016). 12. Id. at 7. 13. Steven Mufson, How the Army Corps of Engineers Wound Up in the Middle of the Fight over the DakotaAccess Pipeline, WASH. POST (Feb. 8, 2017), https://www.washingtonpost.com/busi- ness/economy/how-the-army-corps-of-engineers-wound-up-in-the-middle-of-the-fight-over-the-da- kota-access-pipeline/2017/02/08/33eaedde-ed8a- l le6-9662-6eedfl 627882. 14. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock ill), 255 F. Supp. 3d 101, 111 (D.D.C. 2017); Standing Rock
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