How federal environmental legislation promoted tribal-regional consolidation

The 5 December 2016 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers appellate court ruling in favor of the Standing Rock Sioux tribe’s request for cease of construction of the Dakota Access Pipeline adjacent to the territorial boundaries of the Native nation by Energy Transfer Partners. The landmark decision to deny the easement required for permit of the $3.8 billion under- construction pipeline that would carry crude oil 1,200 miles across four states, to bore under Lake Oahe, was based on legislation protecting federal lands.

Standing Rock has become synonymous with protest, as the tribe has maintained its Treaty rights extend beyond the territory in question. Now indisputable that federal environmental legislation preempts the company’s rights to continue construction under a protected waterway, as well as tribes claim of sovereign territorial jurisdiction of those waters. This follows a 9 September 2016 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers federal court decision, and statement by three federal agencies in September 2016, that would have allowed Energy Transfer Partners to proceed with the pipeline construction.

CERCLA, CWA, FWPCAA, and Oil Pollution Act of 1990

The federal appellate court ruling in favor of the Standing Rock Sioux Tribe DAPL complaint, reflects judicial adherence to Clean Water Act 33 U.S.C. §1251 et seq. (1972) and related regulation protecting national waterways. Legislative foundation to induction of the Environmental Protection Agency (EPA) itself under President Nixon, the CWA was informed by the Federal Water Pollution Control Amendments (FWPCAA) 33 U.S.C. §1251- 1376 et seq. (1948), amended between 1952 and 1988. The goals of the CWA ensure healthy access to water by humans and wildlife. Regulation of dischargers is outlined in the guidelines to permit for, and control of oil spillage, and effluents from factories and wastewater plants under the National Pollutant Discharge Elimination System (NPDES) of 1972.

Prior to enactment of the CWA, the Federal Water Pollution Control Act of 1948 provided the basis regulation and: 1) establishment of a regulatory framework to pollutants discharge control in the jurisdictional waters of the US; 2) formative basis to Environmental Protection Agency (EPA) policy and administration; 3) a system of standards to audit and control of contaminants; 4) codified restrictions on use of waterways; 5) financial allocation guidelines to planning of municipal construction of sewage and related facilities; and 6) procedure to surface water pollution response. Oil spillage is part of the surface-water-quality index definition of primary water pollutants in addition to heavy metals, synthetic organic compounds, and dissolved solids.

By 1990 the Oil Pollution Act 33 U.S.C. §2701 et seq. amended the CWA to include Spill Prevention Control and Countermeasure Plans for oil transport in waterways, as well as compliance audit, mandated by state EPAs or Departments of Environmental Management (DEMs). Monitoring of Total Maximum or Daily Loads (TMDL) is part of the state-by-state strategy for the control and reporting of industrial pollutant flows in waterways. Distributors and indirect dischargers involved in the treatment of effluents such as chemicals, oils, and waste, must perform those processes in accordance with the standards laid forth by EPA federal regulation.

Wetlands defined in the CWA classify types of wetlands preserves, and abatement and control measures allowed by classification. Other regulatory guidelines to the CWA provide for rules to: groundwater contamination; combined sewer overflow; and farm run-off. The Coastal Zone Management Act 16 U.S.C. ch. 33 § 1451 – 1464 (1972) furthers regulatory enforcement of the management and use of ocean and great lake fronts. The Safe Drinking Water Act (SDWA) 42 U.S.C. §300f et seq. (1974) supports public health administration in Food & Drug Administration (FDA) control of municipal waterways in accordance with EPA rules to testing of drinking water for microbial pathogens, oil and other chemicals such as pesticides.

The Comprehensive Environmental Response, Compensation, and Liability Act 42. U.S.C. §9601–9675 (1982) Superfund policy for taxation of chemicals is a system of federal accountability which allows the EPA to monitor and fine non-compliant entities. The decision by the appellate court to refuse the easement allowing for construction permit of DAPL, is in part based on Energy Transfer Partners inability to follow CERCLA guidelines. CERCLA sets limits to pollution in compliance with U.S. federal government regulatory rules, and serves to determine the scope of liability companies sustain for contamination of the environment, in cases involving oil spills and other toxic releases in federal waterways.

Superfund also involves a public action warning system to mitigate exposure. The policy is intended to leverage EPA compliance for long-term remediation of risk, and legal representation on behalf of the public good. EPA enforcement of protections of waterways from manufactured chemicals, oil, pesticides etc., and waste disposal of those products follows CERCLA guidelines.

DAPL: A Tribal-Public Choice

During the DAPL protests, the question has been effectively asked, “so is it federal land or Sioux land?”, pointing to the issue of sovereignty bound with a protest waged against big oil, and the threat of toxic tort violations to reservation waterways. In a Native American Indian political context undergoing change, the opportunity to restate Treaty rights asserts an interest in consolidation of adjacent lands to reservation governance for the protection and betterment of those natural reserves and waterways, through the enforcement of federal regulatory legislation. Such as scenario would put the federally recognized tribal nation in the role of political leadership; prioritizing an agenda of federal land and waterways preservation and conservation, and participatory governance of the region with private land owners.

by: Tamara Campbell


Cox, R., 2010. Environmental Communication and the Public Sphere. London: Sage Publications.

DAPL: Treaty law vs federal law. Kare 5 Dec 2016. law/362249021

Dennis, B. and F. Mufson. Army Corps ruling is a big win for foes of Dakota Access Pipeline. Washington Post 5 Dec 2016. halting-work-on-dakota-access-pipeline/?utm_term=.cea2733c872f

Kennedy, M. Judge Rules That Construction Can Proceed On Dakota Access Pipeline. The Two Way: Breaking News from NPR 9 Sept 2016. construction-can-proceed-on-dakota-access-pipeline

Landy, M.K., et al., 1994. The Environmental Protection Agency: Asking the Wrong Questions – From Nixon to Clinton. New York & Oxford: Oxford University Press.

Lightbody, J., 2009. Defining A Canadian Approach To Municipal Consolidation In Major City Regions. Commonwealth Journal of Local Governance, 3, 2009.

Office of Public Affairs, 2016. Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. U.S. Department of Justice 9 Sept 2016. department-army-and-department-interior-regarding-standing

U.S. Environmental Protection Agency, 2017.