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“Arbitrary and capricious”

A lawsuit to stop the Dakota Access Pipeline includes some very deliberate wording

A lawsuit just filed to stop the Dakota Access Pipeline includes some very deliberate wording

The Standing Rock Sioux Tribe filed a legal challenge Tuesday to the Army Corps of Engineers’ sudden reversal earlier this month that allowed construction to continue on the Dakota Access Pipeline.

In the suit, the Sioux ask that a federal court in Washington, D.C., overturn the Corps’ decision to grant the final easement for the pipeline at Lake Oahe on the Missouri River, which the Corps previously planned to withhold until a full environmental review could be conducted. The North Dakota tribe contends that construction at Lake Oahe could contaminate the main water supply and violate treaty rights.

“In this arbitrary and capricious reversal of course, the Trump administration is circumventing the law, wholly disregarding the treaty rights of the Standing Rock Sioux and ignoring the legally required environmental review,” Jan Hasselman, the lead attorney for the Sioux at the nonprofit law firm Earthjustice, said in a statement.

Hasselman’s use of the phrase “arbitrary and capricious” was very deliberate. The wording has its roots in the Supreme Court case Motor Vehicles Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company. In the 1970s, the federal government passed and amended an act that required vehicles to include safety features like airbags and seatbelts. But the secretary of transportation under President Gerald Ford suspended those rules in 1976. State Farm, an insurance company with a financial interest in keeping its clients safe, challenged the decision.

The Supreme Court ruled that since the government didn’t consider the facts, the suspension of the rules was “arbitrary and capricious.”

The tribe’s case also uses this language: “The Tribe now seeks expedited summary judgment on claims that this easement decision, as well as the Corps’ July regulatory actions and accompanying NEPA analysis, are arbitrary, capricious, and contrary to law.”

In making the decision to abandon the environmental review and grant the easement last week, the Army Corps pointed to one of Donald Trump’s first acts as president: a memorandum expediting the pipeline. But that may not be a good enough reason, according to legal experts who say the agency needs to provide factual evidence why the report was necessary before Trump took office but not necessary afterward.

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