Dakota Access Pipeline Update: It Ain’t Over ‘Til It’s Over (And It Ain’t Over)

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The Intertubes blew up yesterday with news that the US Army Corps of Engineers has denied a key easement for the Dakota Access petroleum pipeline. The decision effectively halts the controversial project for the time being, following months of persistent and growing protests led by the Standing Rock Sioux tribe.

The protest actions were initially overshadowed by the 2016 presidential campaign news cycle, but in recent weeks the violent reaction from local law enforcement has focused the media spotlight squarely on the issue of protecting local water resources.

The question is…now what?

A Partial Victory Is Secured

Some media organizations are reporting simply that the pipeline has been stopped, but yesterday’s action was more in the order of a pause. Native News Online has the full story, citing this press release from Activism Articulated:

…the United States will not grant the easement that Dakota Access needed to cross under our sacred Missouri River until it has conducted a full review, including consideration of alternate routes that are respectful of tribal rights and interests. This decision will prevent Dakota Access from any drilling under the tribal waters of Mni Sose at this time.

Activism Articulated also notes that the Standing Rock Sioux expect Dakota Access to challenge the decision in court, an action that the Tribe is prepared to fight.

Accordingly, Chairman Harold Frazier of the Cheyenne River Sioux Tribe has emphasized that the protest camp will remain occupied.

Standing Rock Sioux Celebrate DAPL Victory

Nevertheless, Standing Rock Sioux representatives had a lot to celebrate last night. In a prepared statement, Tribal Chairman Dave Archambault II said:

…We wholeheartedly support the decision of the administration and commend with the utmost gratitude the courage it took on the part of President Obama, the Army Corps, the Department of Justice and the Department of the Interior to take steps to correct the course of history and to do the right thing.”

Archambault credited tribal youth with initiating the movement to stop the Dakota Access pipeline.

He also took the occasion to note that “treaties are paramount law and must be respected, and emphasized that the tribal concerns should be addressed within the context of a “nation-to-nation” relationship.”

US Interior Department Supports The Army’s Decision

Interior Secretary Sally Jewell issued a brief statement in support yesterday, indicating that a more aggressive interpretation of the 1970 Environmental Policy Act is warranted:

“The thoughtful approach established by the Army today ensures that there will be an in-depth evaluation of alternative routes for the pipeline and a closer look at potential impacts, as envisioned by NEPA.”

Jewell also asserted that tribal treaties and consultation at the nation to nation level would be “essential components” in the drafting of a new environmental impact statement.

US Army Corps Of Engineers Steps Up

The US Army Corps of Engineers is the agency that initially proved the easement that enabled Dakota Access to plan on a route that passes directly under the Lake Oahe reservoir, using a streamlined “nationwide permit” process outlined in section 404(e) of the Clean Water Act. Tens of thousands of activities run through this process every year, covering everything from road crossings to mining activities and aquaculture.

The use of nationwide permitting to enable Dakota Access would have been routine just a few years ago, but the successful (so far) effort to stop the notorious Keystone XL pipeline has raised public awareness about petroleum pipeline issues, both locally and in the context of climate change.

A recent major pipeline break in Alabama also underscored concerns that the Dakota Access project would pose a risk to local water resources.

The effectiveness of the Dakota Access protests will most likely encourage USACE to take a closer look at other pipeline projects in the works.

That’s all the more likely because the US Department of Defense has been transitioning its national defense mission to embrace an environmental stewardship model, and USACE has become a key element in that transition.

Traditionally, USACE ‘s domestic infrastructure projects have involved promoting energy development over habitat and resource conservation, with a strong focus on hydroelectric power and flood control.

For the record, Lake Oahe itself is a project of USACE.

Given the historical role of USACE and the regulations under which it operates, it’s not surprising that the agency initially enabled DAPL (the Dakota Access pipeline) to move along.

On the other hand, in recent years USACE has become increasingly assertive about the protection of domestic natural resources as a critical factor in national defense policy.

USACE adopted a set of Environmental Operating Principles in 2002 under the Bush Administration. During the Obama Administration, USACE made a strong case for stepping up that focus to address emerging threats to national defense:

These challenges are complex, ranging from global trends such as increasing and competing demands for water and energy, climate and sea level change, and declining biodiversity; to localized manifestations of these issues in extreme weather events, the spread of invasive species, and demographic shifts.

So, it’s also not surprising that in September, USACE provided the Standing Rock tribe and their supporters with legal standing to occupy federal property for the purpose of continuing to exercise their exercise of First Amendment rights.

In November, USACE notified the Standing Rock Sioux Tribe and the DAPL developers (Energy Transfer Partners and Dakota Access, LLC) that it would not permit an easement for the pipeline to cross on or under federal land bordering Lake Oahe, pending further review:

The Army has determined that additional discussion and analysis are warranted in light of the history of the Great Sioux Nation’s dispossessions of lands, the importance of Lake Oahe to the Tribe, our government-to-government relationship, and the statute governing easements through government property.

That brings us to Yesterday’s DAPL announcement, issued by Army Assistant Secretary for Civil Works Jo-Ellen Darcy, declaring that the Army would not grant an easement for the pipeline

“Although we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”

USACE is looking for a new Environmental Impact Statement with full public input and analysis.

The fight isn’t nearly over yet, but the “full public input” requirement doesn’t bode well for Dakota Access.

The last time USACE reviewed a controversial project in the context of tribal treaties, it ended up nixing the proposed Gateway Pacific coal terminal.

On the other hand, President-elect Donald Trump is part owner in the Dakota Access developer, Energy Transfer Partners. So far he hasn’t come forth with a plan to avoid conflicts of interest involving DAPL or any other of his vast holdings.

Correction: On the other hand, President-elect Donald Trump has a financial interest in the pipeline through Phillips 66. He recently sold his stake in the pipeline developer, Energy Transfer Partners, but his presidential campaign benefited from contributions from the company’s CEO. So far Trump hasn’t come forth with a plan to avoid conflicts of interest involving DAPL or any other of his vast holdings.

Stay tuned.

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Image: Lake Oahe and dam via US Army Corps of Engineers.