The main goal of the National Environmental Policy Act (NEPA) is to compel government agencies to look for and discover possible environmental issues before making decisions that could impact the environment. The statute goes on to require an intensive review process when an environmental issue arises. NEPA can temporarily stop federal projects when an agency has not followed proper procedure or adequately considered certain factors. This Note proposes that under NEPA, courts should consider how agency decisions impact tribal treaty rights. The obligation to consider treaty rights come both from the treaty rights themselves and from the federal government’s trust obligation to Native American tribes.
The Note will discuss this issue through Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, a recent challenge to the Army Corps’ decision to grant an easement for the Dakota Access Pipeline. The Note will look to past infringements on Sioux land and treaty rights and then discuss the NEPA framework. Next, the Note will explain the current challenge and touch on cases that deal with treaty rights inside and outside of NEPA. Finally, the Note argues that the government’s trust obligation requires better treatment and acknowledgement of tribal treaty rights in the NEPA context.
Faitsch, Maegan, "“Highest Responsibility and Trust”: The National Environmental Policy Act & the Dakota Access Pipeline" (2019). Connecticut Law Review. 408.