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SUMMARY: The pipeline poses an unnecessary risk of harm to water resources, the environment, and human health and safety. The routing of the Dakota Access Pipeline through tribal lands is an act of environmental racism and a desecration of burial grounds and other sacred cultural sites. The decision of the Secretary of the Army to not grant an easement for completion of the pipeline DOES NOT put a definitive stop to the pipeline. Think of the pipeline as a freight train on a track. The decision to not grant the easement at this time stops the train from moving forward on the track. It does not change the location of the track. It only requires the train to remain stopped while there is consideration of the possibility to move the track. That analysis may take a long time but after all the analysis is done, the train could be allowed to keep rolling – even if other locations for the track seem like better options – because freight trains have a lot of momentum and a lot of power and carry expensive cargo that will make certain people very rich. I know that’s a weak analogy. Bear with me.
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1. WHY I STOOD. I stood with the Standing Rock Sioux tribe in their opposition to the routing of the Dakota Access oil pipeline under Lake Oahe, North Dakota. I stood with Standing Rock because pipelines fail and when they do, the results are catastrophic. Even a small leak of petroleum products can devastate water resources. While it’s not authoritative to cite wikipedia, the article page for ““List of pipeline accidents in the United States in the 21st century” is informative. Given the risk posed by pipeline failure, the routing of the Dakota Access Pipeline (DAPL) half a mile upstream from a tribal community and directly through a waterway that the tribe relies on for drinking water, fishing, and irrigation is a textbook act of environmental racism. If you’re not familiar with the term “environmental racism”, it is when environmental impacts are disproportionately borne by communities that lack the economic and/or political clout to challenge the actions of the polluter. It is a devaluing of life based on economic and political considerations of efficiency and cost savings to the polluter. DAPL is environmental racism. When you also consider that construction of the pipeline threatens to destroy burial grounds and other lands sacred to the tribe, the routing of the pipeline is even more outrageous.
2. WHY I STAND. On December 4th, 2016, Jo-Ellen Darcy, the Assistant Secretary of the Army for Civil works issued a memorandum regarding the proposed crossing of Lake Oahe by the Dakota Access Pipeline. In this memorandum, she provides details of the administrative process and the applicable laws governing that process as it affects the rights of the applicant Dakota Access LLC (subsidiary of Energy Transfer Partners) and the interested parties, in this case the Standing Rock Sioux Tribe. In her memorandum, Secretary Darcy explains that the construction of the pipeline across Lake Oahe requires two separate approvals. The first approval needed is a “Section 408” permit. This is a permit to “modify, alter, or occupy any existing U.S. Army Corps of Engineers-constructed public works project”. It is not clear to me what specific public works project DAPL will be altering at Lake Oahe, but Dakota Access LLC applied for that permit (including submission of the necessary environmental analysis) and the first permit was granted. The second approval needed is a 30 US section 185 approval for the right-of-way or easement to run a petroleum product pipeline across federal land:
“Rights-of-way through any Federal lands may be granted by the Secretary of the Interior or appropriate agency head for pipeline purposes for the transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom…”
Secretary Darcy’s memo states that the US Army Corps of Engineers will not approve the easement without further review: “…the Army will not grant an easement to cross Lake Oahe at the proposed location based on the current record.”
What are the key words here? FURTHER REVIEW and CURRENT RECORD. Secretary Darcy’s memorandum is not a rejection of the current route. The memorandum only states a demand for further environmental review. That review will take the form of an Environmental Impact Statement (EIS). An EIS does require consideration of project alternatives, in this case, alternate routes. An EIS also requires consideration of impacts on local communities and cultural resources in addition to environmental impacts. This means that Standing Rock Sioux Tribe will have a much stronger voice in the review process. However, an EIS does not require that the least harmful alternative be selected. An EIS is only informational in nature. The conclusions of the EIS carry no decisional authority. Upon completion of a full EIS, including all input from the Tribe, the Secretary may still approve the existing pipeline route.
Until a full EIS is performed (a process that can take months if not years) the project must wait to proceed. To move forward and begin drilling without an easement is flatly illegal and a trespass on federal lands. Accordingly, the most immediate consequence of Secretary Darcy’s memorandum is delay. Delay is important because it gives the Standing Rock Sioux Tribe more time to gather resources for the inevitable legal challenges that will be presented. Delay is also important because financing for the pipeline may be compromised if construction of the pipeline is not completed on schedule.
3. WHY I WILL CONTINUE TO STAND. I will continue to Stand With Standing Rock and I will march in Downtown Los Angeles on December 10, 2016 because the project has not been stopped. There are multiple ways in which the project threatens to continue.
- First, DAPL will challenge the Secretary’s decision in court. They will argue that the two separate approvals for the same action are duplicative and that it was an abuse of discretion for the Secretary to apply a different level of scrutiny to the approval for the easement when in essence it is identical to the approval for the Section 408 permit. Standing Rock Sioux Tribe will need expert legal representation to help defend either directly or through amicus briefs the decision of the Secretary to act differently on the easement application based on new information about impacts to the Tribe. It is important to note that the oil spill risk analysis prepared for the Section 408 permit was labeled “classified” for security purposes and not disclosed to Standing Rock Sioux tribe.
- Second, President-elect Trump may exert pressure on the Secretary to reverse course and grant the easement. This possibility raises a variety of complicated legal, administrative, and political scenarios all of which will require expert legal representation to navigate.
- Third, preparation of an EIS is a highly politicized and legally technical process. This is in addition to the scientific and other expertise needed to analyze and comment on the impacts to the environment, the community, and cultural resources. Standing Rock Sioux Tribe will need funds to pay for their own consultants and representation in every stage of the proceedings.
- Fourth, as stated above, even after performance and consideration of a full environmental review pursuant to the EIS process, the Secretary could still approve the existing project. During that time, efforts will need to be made to encourage investors to abandon the project and render its completion meaningless.
- Fifth, Standing Rock / DAPL is just the beginning. There is the possibility that Keystone XL will be revived under a Trump administration. The mining project on Apache land at Oak Flats, Arizona is an abomination. There are a slew of projects that threaten water resources and are moving forward in large part because they depend on the systematic disenfranchisement of tribal communities. That shit can’t fly anymore. If that means the price of oil goes up, then it goes up. Pay the real price. I don’t want my oil cheap just because some dickhead corporation thinks it’s cool to step on the neck of tribal or any other communities.
As San Carlos Apache artist and sensei Douglas Miles says, “The Rez is watching”. Watching indeed. And a shit ton of people are following the Rez’s feed. So stay in it. Because this isn’t the flavor of the month. This is how it is. See you 12/10.
To learn more about the “#NoDAPL March In Los Angeles” visit its event page on Facebook.
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