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

Eid, Troy A. “Beyond Dakota Access Pipeline: Energy Development and the Imperative for Meaningful Tribal Consultation.” Denver Law Review, vol. 95, no. 3, 2018, pp. 593–607.,
Year Published
Denver Law Review

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 reshaping
how tribes approach energy development. Protests and lawsuits against DAPL’s owners delayed the pipeline for months and cost its investors 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 proactively 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 reclamation activities. Companies should also assist with project-related tribal employment 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.