Jan Hasselman

On March 18, 2020, Jan Hasselman argued the Standing Rock Sioux Tribe’s case over the Dakota Access Pipeline by telephone from Seattle. He had cancelled his flights and hotels and asked to hold the hearing by teleconference, and Dakota Access’s lawyers, who were based in Washington, pushed back. “It was incredibly tone-deaf to demand an in-person hearing in the middle of a public health crisis,” Hasselman said. U.S. District Judge James Boasberg heard the argument by phone. He “switched the order of argument and had the defense go first,” by Hasselman’s account, and his first question to the lawyers for the Army Corps of Engineers and Dakota Access was whether a 2019 decision of the U.S. Court of Appeals for the D.C. Circuit, National Parks Conservation Ass’n v. Semonite, changed the analysis.

What Hasselman called “the biggest surprise” came when Boasberg said he would issue a ruling in a week. “Normally you can expect to wait for a couple months,” Hasselman said, “so that indicated to me that the decision was essentially already written; he was just fine-tuning it.”

The Army Corps of Engineers calculated that if the Dakota Access Pipeline began leaking beneath Lake Oahe, its operators would detect the leak, shut down the pumps and close the valves within 12.9 minutes. That figure went into the Corps’ estimate of the worst oil discharge the crossing could produce. Commenters answered that pipeline spills had been documented to continue undetected for “hours and sometimes weeks,” and the Tribes’ safety expert, Donald Holmstrom, objected that the Corps’ numbers assumed that the “correct decision and response is immediately initiated, and all equipment such as controls, sensors, pumps and valves function as intended.”

On March 25, 2020, a week after the hearing, Boasberg found that the Corps had never explained why its worst-case calculation could leave out human error between the detection of a leak and the closing of the valves. A claim that the pipeline’s design ruled out such error altogether, he wrote, “would recall assurances like ‘God himself could not sink this ship’ (RMS Titanic), or ‘You’re confused, RBMK reactor cores don’t explode’ (Chernobyl).” He held that the crossing’s effects were likely to be highly controversial under the National Environmental Policy Act and remanded for a full environmental impact statement. On July 6 he vacated the easement that allowed the pipeline to cross federal land beneath the lake. On January 26, 2021, the D.C. Circuit affirmed the vacatur and the order to prepare the statement.

Hasselman, a senior attorney in Earthjustice’s Northwest office in Seattle, was lead counsel to the Standing Rock Sioux Tribe in that litigation, and Earthjustice represented the Tribe from 2016 to 2022. He argued the appeal for the Tribe and the other tribal appellees, and he was counsel of record for the Standing Rock Sioux Tribe when the Supreme Court denied Dakota Access’s petition for certiorari on February 22, 2022. The claim that carried the case was a NEPA claim built on evidence: experts had documented specific weaknesses in leak detection, in the operator’s safety record, in winter spill response and in the worst-case calculation, and the Corps had approved the crossing without resolving them.

A Cold Call to Seattle

The Tribe found Earthjustice on its own. “Most of the cases that we’re involved with come from long-standing partnerships with our clients, long-standing campaigns,” Hasselman said in a March 2017 Earthjustice teleconference. “We don’t get a whole lot of cold calls of people asking for our help. But this one was a cold call. Standing Rock Tribe called us up out of the blue.” The Tribe had heard of Hasselman and his colleague Kristen Boyles through their representation of Coast Salish tribes in Washington State in a proceeding over the Trans Mountain pipeline in Canada. His first assessment for the Tribe was blunt: “you know, it’s going to be hard. This is tough. There have been a lot of legal challenges to pipelines. They haven’t, for the most part, been very successful.”

He expected a modest case. “My thought was we would file this in Bismarck and we’d get thirty or forty folks from the reservation to show up at the court hearing and maybe get on the six o’clock news,” he said in 2017. The Tribe sued in federal court in Washington, D.C. “Every time we show up in court, even if it’s for a status conference, there are packed courtrooms and overflow rooms,” Hasselman said in March 2017, and early in the proceedings, he said, Boasberg noted that his office was besieged with calls. By that summer he had put his personal life almost entirely on hold for fourteen months. “I don’t think any of us imagined this would become the global iconic movement that it did,” he said in 2021.

Stone Features in the Corridor

The Corps made Lake Oahe. In 1958 it dredged and altered the course of the Cannonball River to construct a dam, and the reservoir now covers the river’s confluence with the Missouri. The dam’s construction and the lake’s creation flooded 56,000 acres of the Standing Rock Reservation and 104,420 acres of the Cheyenne River Sioux Tribe’s trust lands. The Tribes rely on the lake for drinking water, agriculture, industry, and sacred religious and medicinal practices, and Standing Rock draws water through intakes in the river downstream of the crossing. Dakota Access, LLC designed a 1,172-mile pipeline to carry crude oil from the Bakken fields of North Dakota to a storage hub in southern Illinois and routed it beneath the lake 0.55 miles north of the reservation.

Dave Archambault II, the Tribe’s chairman, wrote in The New York Times in August 2016: “When the Army Corps of Engineers dammed the Missouri River in 1958, it took our riverfront forests, fruit orchards and most fertile farmland to create Lake Oahe. Now the Corps is taking our clean water and sacred places by approving this river crossing.” He set the pipeline beside the Tribe’s older losses: “Whether it’s gold from the Black Hills or hydropower from the Missouri or oil pipelines that threaten our ancestral inheritance, the tribes have always paid the price for America’s prosperity.”

When Dakota Access first came, LaDonna Brave Bull Allard wrote, “I looked at the pipeline map and knew that my entire world was in danger.” On April 1, 2016, she and others set up the Sacred Stone Camp on her family’s land where the Cannonball River joins the Missouri, to stop the pipeline “through prayer and non-violent direct action.” “My father is buried at the top of the hill, overlooking our camp on the riverbank below,” she wrote. “My son is buried there, too.” She published those words on September 3, 2016, the anniversary of the 1863 Inyan Ska, or Whitestone, Massacre, in which, she wrote, an estimated 300 to 400 of her people were killed. “We are the river, and the river is us,” she wrote.

The Corps verified the pipeline’s water crossings under Nationwide Permit 12 on July 25, 2016. Two days later the Tribe sued under the Administrative Procedure Act, asserting principally that the Corps had not carried out the tribal consultation the National Historic Preservation Act requires, and that construction would destroy sites of cultural and historical significance.

The Tribe had made its objection plain at the outset. Describing the first meetings, one with Energy Transfer, the pipeline’s developer, and one with the Corps, Hasselman said in 2021 that “the Standing Rock Sioux Tribe made it very clear that this location would be wholly unacceptable for a variety of very serious reasons, ranging from water protection, the sacredness of the site, and burials and cultural sites in that immediate vicinity, and none of it made the least bit of difference.” He added: “The cake was baked before they ever went and talked to them.”

On Friday, September 2, the Tribe filed a supplemental declaration from Tim Mentz, who had surveyed private land around the pipeline right-of-way. Mentz described several rock cairns and other sites of cultural significance inside the 150-foot corridor staked for construction, and a stone constellation marking the burial site of a very important tribal leader about 75 feet from the corridor. On September 3, Dakota Access graded the area. The land was private, about 1.75 miles from the work the Corps had permitted at the lake. “We provided evidence on Friday of sacred sites that were directly in the pipeline’s route,” Hasselman said that week. “By Saturday morning, those sites had been destroyed.”

Hasselman described the sites in the declaration as “multiple gravesites and burials, very important archaeological features of the kind that are not found commonly.” Right after the bulldozing, Dakota Access’s private security guards turned dogs and pepper spray on Native American demonstrators.

On September 9, the Departments of Justice, the Army and the Interior issued a joint statement that the Army would not authorize construction of the pipeline on Corps land bordering or under Lake Oahe until it determined whether to reconsider its earlier decisions, and the departments asked Dakota Access to halt construction voluntarily within twenty miles on either side of the lake. “This is pretty stunning, a pretty stunning move, that changes the equation of where are we going from here,” Hasselman told Democracy Now! three days later, adding that the Tribe would ask the federal appeals court to enforce the twenty-mile no-build zone.

On December 4, 2016, the Army announced that it would not grant an easement to cross Lake Oahe at the proposed location based on the current record, and it directed the preparation of an environmental impact statement. Jo-Ellen Darcy, the Army’s assistant secretary for civil works, said that “more heightened analysis, in my judgement, is appropriate,” and that the statement would include “more rigorous exploration and evaluation of reasonable siting alternatives.” Earlier that Sunday, people at the Oceti Sakowin Camp near Cannon Ball had held an interfaith prayer service. Archambault said the Tribe would respond as it had acted throughout, “in a peaceful and prayerful manner.” “With this decision, we look forward to being able to return home and spend the winter with our families and loved ones,” he said.

“I hope everyone can just go home; it’s real,” Hasselman told The Seattle Times. “It’s not a hoax.” The next day blizzard conditions kept some people in the camp, and others stayed because they feared the company would ignore the Army and keep building. Representative Kevin Cramer of North Dakota, a longtime Trump supporter, said he was encouraged that law and order would be restored the following month. Hasselman said: “If they try to reverse this decision and jam the pipeline, we will be prepared to challenge that in court.”

Fifteen Days From Memorandum to Easement

The turnaround took fifteen days once it began. A presidential memorandum issued on January 24, 2017, directed the Secretary of the Army to see that the pipeline’s pending requests were reviewed and approved in an expedited manner. The Corps published notice that it was terminating its intent to prepare an environmental impact statement and granted the easement on February 8. By late March, Dakota Access had finished the segment beneath Lake Oahe and begun placing oil in the pipeline; the line was operating by June 1.

In March 2017 Hasselman described the shift to Earthjustice supporters. “Chairman Dave Archambault has been very clear that, even though the camp and the water protector part of this movement, that chapter, has closed—we’re in another chapter,” he said. “And that chapter is a focus on the litigation.”

Standing Rock, joined by the Cheyenne River Sioux Tribe, attacked the easement under NEPA. Hasselman stated the problem in the March 2017 teleconference: “We do EIS’s for dog parks. We do EIS’s for restoration activities and drinking water plants.” The Corps had granted the easement on the strength of the environmental assessment and mitigated finding of no significant impact it issued in July 2016.

The first fight over the record concerned what the public could see. After the Corps assembled the administrative record for its July 2016 decisions, Dakota Access moved for a protective order shielding parts of eleven documents, arguing that terrorists or others seeking to damage the pipeline could use the information to cause environmental harm. The Corps opposed the motion in part, and the Tribes opposed it in full. On April 7, 2017, Boasberg held that Dakota Access had largely failed to show good cause. He allowed about fifty redactions in five spill-model documents on the recommendation of the Pipeline and Hazardous Materials Safety Administration, and he refused the company’s redactions to its geographic-response plans and its horizontal-directional-drilling prevention-and-response plan.

Three Questions the Corps Had Skipped

On June 14, 2017, Boasberg ruled on the Tribes’ motions for partial summary judgment. “Although the Corps substantially complied with NEPA in many areas,” he wrote, “the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.” The 1851 Fort Laramie Treaty reserved to the Sioux tribes the privilege of hunting and fishing on the lands it described. The Corps’ environmental assessment gave only a cursory nod to what a spill would do to aquatic resources and said nothing about a spill’s effects on hunting, and Boasberg held that, in that limited respect, the assessment was inadequate.

Hasselman had pressed the treaty and environmental-justice points. “The Tribe depends on the waters of Oahe in ways that are unique from [non-native populations],” he said in 2017. “The impact of losing the right to fish and hunt—subsistence food given the poverty on the reservation—in addition to being deprived of a deep connection to cultural practices represents an existential threat to life on the reservation.” The Corps’ original environmental assessment, he said, “didn’t have Standing Rock on the map.” In the briefing, Hasselman said, the defense had treated an all-white census district, mostly upstream of the crossing, as the area a spill would threaten, and then pointed out that it held fewer minorities than the surrounding area, which was the reservation. That, he said, “takes breathtaking audacity.”

“We commend the courts for upholding the law and doing the right thing,” Archambault said after the ruling. The previous administration, he said, had “painstakingly considered the impacts of this pipeline,” and the new one had “hastily dismissed these careful environmental considerations in favor of political and personal interests.”

Boasberg sent those questions back to the Corps. With oil already moving beneath the lake during the remand, the Tribes asked for interim protections, and on December 4, 2017, he imposed three. The Corps, Dakota Access and the Tribes had to coordinate to finalize spill-response plans at Lake Oahe and file them with the court by April 1, 2018. Dakota Access had to select an independent, third-party auditor in consultation with the Tribes and file the audit results by the same date. And the company had to file bi-monthly reports of any repairs or incidents on the segment crossing the lake.

Four Critiques the Remand Left Standing

On remand, the Corps again concluded that the crossing would have no significant impact and required no environmental impact statement. Standing Rock, with the Cheyenne River, Oglala and Yankton Sioux Tribes in consolidated cases, challenged that conclusion. Under NEPA’s implementing regulations, an agency deciding whether an action’s impact is significant must consider whether its effects are likely to be highly controversial—whether a substantial dispute exists as to the size, nature, or effect of the action, as distinct from opposition to it. In National Parks Conservation Ass’n v. Semonite, the D.C. Circuit had held that the question is whether the agency actually succeeded in resolving such a dispute.

Standing Rock answered the remand with a report it prepared with its Department of Water Resources, Department of Game and Fish, Tribal Emergency Management Commission and Department of Environmental Regulation, among others, and a five-member technical consulting team. On the worst-case discharge, the report said that leak detection time was “intended to be part of the WCD calculation formula,” but that “no actual detection time was provided or utilized”; the calculation “multiplied only the pump shutdown time by the maximum flow rate and added the drain down volume.” Another expert for the Tribe, Accufacts, had presented the federal leak-detection data in October 2016. The Corps completed its remand analysis in February 2019, and Hasselman’s response took up most of that year. Every year since 2016, the Tribal council had voted unanimously to continue its legal challenges to the pipeline.

The first dispute concerned leak detection. The Tribes’ experts relied on a 2012 leak-detection study by the Pipeline and Hazardous Materials Safety Administration that found a detection rate of 20 percent for computational pipeline monitoring, the type of system DAPL uses, and they showed that DAPL’s system was not designed to detect leaks of 1 percent or less of the pipe’s flow rate, which could amount to 6,000 barrels a day. The Corps’ response to the first of those comments was to refer to its response to a different comment that did not specifically address the federal data. “These responses plainly do not succeed in resolving the serious concerns raised,” Boasberg wrote.

The second concerned the operator. The Corps relied on industry-wide safety data. Holmstrom set out federal pipeline-safety data showing that Sunoco, DAPL’s operator, had experienced 276 incidents from 2006 to 2016, which he described as “one of the lower performing safety records of any pipeline operator in the industry for spills and releases.” The Corps’ responses defended Sunoco’s record instead of justifying the decision to leave that record out of the analysis.

The third concerned winter. The Oglala Sioux Tribe’s consultant, EarthFax, explained that subfreezing temperatures would affect emergency response during a cleanup, that workers would need more breaks and move more slowly in heavy clothing, that daylight hours would be shorter, and that ice would make it difficult to determine where the largest pockets of oil would collect. The Corps replied that ice cover would slow the movement of oil downstream by trapping it near the release, and it pointed to the full-scale winter exercises it had required at Lake Oahe as a condition of the easement. The fourth was the 12.9-minute worst-case figure and the human error it left out. Across these responses Boasberg found the Corps repeating form language that commenters had offered no “specific alternative methodology,” and he called it “a non sequitur” that “does nothing to resolve the specific issues raised by the Tribes’ experts.”

Boasberg held that the effects of the crossing were likely to be highly controversial and remanded the matter for an environmental impact statement. He set separate briefing on whether to vacate the easement while the Corps prepared it.

“This validates everything the Tribe has been saying all along about the risk of oil spills to the people of Standing Rock,” Hasselman said after the ruling. “After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” said Mike Faith, the Tribe’s chairman.

Dakota Access’s Numbers and the July 2020 Vacatur

Dakota Access put a price on losing the easement. Its declarants said the pipeline could lose as much as $643 million in the second half of 2020 and $1.4 billion in 2021, that producers would have to shut in between 3,460 and 5,400 wells, and that no pipeline alternative existed for the 570,000 barrels of Bakken crude DAPL could carry each day. The Corps told the court that the environmental impact statement would take approximately thirteen months.

On July 6, 2020, Boasberg vacated the easement. “Fearing severe environmental consequences, American Indian Tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake,” he wrote. “Today they finally achieve that goal—at least for the time being.” He treated the deficiency as serious because the Corps had failed to resolve the controversy after a full remand, and he weighed the economic harm directly: “Losing jobs and revenue, particularly in a highly uncertain economic environment, is no small burden. Ultimately, however, these effects do not tip the scales decisively in favor of remanding without vacatur.”

“Denying vacatur on the basis of alleged economic harm risks creating undesirable incentives for future agency actions,” Boasberg wrote. If projections of financial distress could prevent vacatur, agencies and project sponsors could commit as many resources as early as possible to a challenged project and then claim disruption from those investments. “When it comes to NEPA, it is better to ask for permission than forgiveness: if you can build first and consider environmental consequences later, NEPA’s action-forcing purpose loses its bite.”

“It took four long years, but today justice has been served at Standing Rock,” Hasselman said on July 6. Faith said: “This pipeline should have never been built here. We told them that from the beginning.”

Appropriate Solicitude in the D.C. Circuit

The Corps and Dakota Access appealed. Hasselman argued for the Tribes on November 4, 2020, before Judges Tatel, Millett and Sentelle; Miguel Estrada argued for Dakota Access, and James Maysonett for the Corps. The appellants pressed their strongest points: the opposition came from the Tribes and their consultants rather than from disinterested public officials; the low probability of a spill meant the effects were not controversial; the worst-case calculation did not have to model a doomsday; the Corps had made a conservative assumption by modeling the pipe as though it lay directly on top of the water rather than ninety-two feet beneath the lakebed; and vacatur was unwarranted because the Corps could readily substantiate the easement on remand while a shutdown would cause severe economic disruption.

The Tribes’ joint brief, which Hasselman signed for Standing Rock on September 21, 2020, opened on the parties: “This case pits federally recognized Indian Tribes, successors to the Great Sioux Nation, against a federal agency that authorized a major crude oil pipeline across the Tribes’ unceded ancestral homelands.” It answered the appellants in two sentences: “Appellants’ entire case is built on a tautology: the Corps’ conclusion that the risk of a pipeline spill is low must be upheld because the risk of a pipeline spill is low. But NEPA requires more.” The Corps and Dakota Access, the Tribes wrote, had disparaged the expert critiques because they came from the Tribes, “ignoring the Tribes’ sovereign status and their role as first responders for any accident affecting Treaty-protected resources.”

Judge Tatel wrote for the panel. Dakota Access had suggested at oral argument that the Tribes were “quintessential . . . not-in-my-backyard neighbors.” The court answered that “[t]hey are sovereign nations with at least some stewardship responsibility over the precise natural resources implicated by the Corps’s analysis,” and that “[t]he Tribes’ unique role and their government-to-government relationship with the United States demand that their criticisms be treated with appropriate solicitude.”

The panel then went through the evidence. On leak detection, it noted that DAPL’s own operator had spilled 8,600 barrels during a 12-day slow leak in 2016 even though its monitoring system showed the same type of detectable meter imbalance the Corps said would quickly alert operators here. On Sunoco’s record, it rejected reliance on industry averages: “For example, it would be strange indeed if we were to defer to the Federal Aviation Administration’s decision to renew the operating certificate of an airline with an extremely poor safety record on the basis that the airline industry, on average, is safe.” On the worst case, it agreed that the federal formula did not require “a complete doomsday scenario in which every possible human error and technical malfunction occurs simultaneously,” but held that the Corps’ failure to explain why it declined to consider any such eventualities left a substantial dispute unresolved. In effect, the panel wrote, the Corps had “analyzed an imaginary pipeline of roughly equivalent risk to DAPL—one laying directly on top of Lake Oahe, but with superior leak detection and shut-down valve systems.” A low probability did not end the inquiry: “Under NEPA, an agency must look at both the probabilities of potentially harmful events and the consequences if those events come to pass.”

The panel affirmed the vacatur and the requirement of an environmental impact statement. It declined to measure the deficiency by whether the Corps could eventually justify the easement, reasoning that such a test would reward agencies that build first and complete their environmental reviews later, and it treated the failure to prepare a required statement as a reason to doubt that the easement would ultimately be approved. “This decision affirms what the Tribe has been saying from the start—this pipeline is a threat to clean water and Indigenous sovereignty, and we must examine the consequences it brings for the future,” Hasselman said that day.

“I think agencies have gotten away with sweeping this stuff under the rug, and hopefully, this decision makes that harder,” Hasselman told E&E News in March 2021. After the D.C. Circuit declined Dakota Access’s request for rehearing in April 2021, he said: “This is a pretty definitive statement that the legal issues in this case do not warrant attention from the Supreme Court.” Dakota Access petitioned anyway. Hasselman was counsel of record for the Standing Rock Sioux Tribe, Nicole Ducheneaux of Big Fire Law & Policy Group was counsel of record for the Cheyenne River Sioux Tribe, and Solicitor General Elizabeth Prelogar filed the federal government’s brief in opposition.

The Tribe’s brief in opposition, which Hasselman signed with Kirti Datla and Patti Goldman of Earthjustice, called the ruling “a fact-bound decision that does not implicate a circuit split or any other issue that warrants this Court’s attention.” “Though the dispute over the pipeline garnered national attention,” it said, “the D.C. Circuit’s decision plowed no new ground.” On February 22, 2022, the Supreme Court denied the petition.

Thirteen Months by the Corps’ Estimate

The D.C. Circuit left to the Corps how to enforce its property rights against a pipeline with no easement. Under the Trump administration the Corps took no enforcement action against Dakota Access, and oil kept moving under the lake while the Corps prepared the statement it had told Boasberg would take about thirteen months. The Corps published the final statement on December 19, 2025, nearly five and a half years later, and in May 2026 issued a record of decision reauthorizing the easement with additional monitoring and response measures. Earthjustice’s representation of the Tribe had ended in 2022.

The Next Twelve Pipelines

Hasselman joined Earthjustice’s Northwest office in 1998 after clerking in the federal district court in Boston. He holds a history degree from Wesleyan University and graduated magna cum laude from Boston College Law School, where he was executive editor of the Boston College Environmental Affairs Law Review; his second-year summer clerkship was in the Justice Department’s honors program, where he researched land and water rights claims on behalf of Indian tribes. In Seattle he has litigated Endangered Species Act listings for salmon and cases over stormwater pollution, coal-fired power plants, and coal and crude-oil terminals. He is an adjunct faculty member at the University of Washington and Seattle University law schools, and in 2013 he was a Fulbright visiting professor at the Faculty of Law of the University of Ljubljana in Slovenia.

“Whatever happens with this pipeline, I don’t think that’s the legacy of Standing Rock,” Hasselman said in the summer of 2017. “The legacy is what it means for the next twelve pipelines.”

The Terminal at Cherry Point

In April 2026, a Whatcom County hearing examiner rejected a permit that had allowed AltaGas to expand its liquefied-petroleum-gas terminal at Cherry Point, near Bellingham, after six groups represented by Earthjustice, including Friends of the San Juans and RE Sources, challenged it. The examiner found that the company had miscalculated how far its construction work expanded the terminal’s capacity and that the county had approved the expansion without the environmental study Washington law required. In May, AltaGas asked the Whatcom County Superior Court to overturn the decision. “The law says counties need to be honest with the community about the risks and impacts of projects like this one,” Hasselman said after the examiner ruled.