Photo: Tony Webster / Flickr
The Dakota Access Pipeline was just dealt a one-two punch.
On Sunday, December 4, the United States Army Corps of Engineers issued a memorandum denying the easement under Lake Oahe, a dam-controlled reservoir on the Missouri River that lies just half a mile upstream from the Standing Rock Reservation. Citing the need for a “more robust analysis” by way of an Environmental Impact Statement, the agency’s decision effectively freezes further construction of the pipeline.
Then, on Friday, December 9, Judge James E. Boasberg of the D.C. District Court rejected the Dakota Access Pipeline’s request to expedite approval of the easement. Unmoved by the company’s complaint that the delay is causing $20 million losses each day, the judge set a January briefing schedule and a tentative February hearing date — a significant move in light of the company’s claim that crucial shipping contracts could be terminated if the pipeline isn’t delivering crude oil by January 1, 2017.
Federal Judge DENIES #DAPL request 4 expedited hearing"It's not my problem that ur losing $20m/day.You shdnt have started without a permit"
— Robert F. Kennedy Jr (@RobertKennedyJr) December 9, 2016
While those opposing the project — most notably, the Standing Rock Sioux, whose drinking water would be devastated by a pipeline breach — have reason to celebrate, what happens next remains unclear, especially with President-elect Trump’s fossil fuel-happy administration taking the executive helm in less than six weeks.
What we do know is that the fight will continue on all fronts, and the best we can do is stay as informed as possible.
The following — featuring insights from Earthjustice (counsel to the Standing Rock Sioux) and Noah Perch-Ahern (an Environmental & Energy Practice Group partner at Glaser Weil who regularly represents oil and gas companies) — should help make some sense of what lies ahead. Energy Transfer Partners, Dakota Access Pipeline’s parent company, did not respond to an interview request.
The Army Corps of Engineers has concluded that an Environmental Impact Statement is required before the Dakota Access Pipeline permit can be issued. What is an Environmental Impact Statement and how is it used?
An Environmental Impact Statement (EIS) is a tool used by federal officials, as Noah Perch-Ahern explains, “to inject environmental considerations into decision-making” for proposed agency decisions — in this case, whether to grant the easement at issue.
Among other factors, the EIS must consider the direct and indirect environmental effects of a proposed project, viable alternatives and mitigating measures, and the project’s impact on cultural or historic resources. Comments from both the public and government agencies with a role in the project have to be solicited and considered, and Earthjustice estimates that the Dakota Access Pipeline EIS process “could take a year or two to complete.”
In light of the upcoming court hearing in February, the imminent administration change and the economic feasibility considerations, it appears inescapable that related decisions will be made — and then challenged — long before the EIS is completed.
If the EIS concludes that the Dakota Access Pipeline will negatively impact environmental and cultural resources, and identifies re-routing the pipeline as the best and most appropriate mitigating measure, is that recommendation binding?
No. The regulations make clear that an EIS is advisory, not mandatory. As Mr. Perch-Ahern notes, while the “rationale for any decision to not follow mitigation measures would need to be documented, and would be subject to judicial review,” it’s “not that unusual for federal agencies to find justifications to avoid mitigation measures discussed in an EIS.”
In other words, a recommendation to reroute the pipeline would effectively be just that — a recommendation.
Could Trump swoop in and grant the easement once he’s inaugurated on January 20, 2017?
That seems to be the multi-billion dollar question.
First, it’s important to understand, as Mr. Perch-Ahern points out, that the U.S. Army Corps of Engineers “controls permitting decisions” and “agency decisions are supposed to be autonomous” from the President.
Although Trump “could potentially fire the head of the U.S. Army Corps of Engineers” or take other “administrative or executive action to reverse the decision,” such a reversal “would probably need to be rationalized and supported by findings that counter those already made” and “could attract a somewhat heightened form of judicial review.”
Earthjustice claims that any attempt by Trump to reverse the Army Corps of Engineers’ December 4 decision “would be arbitrary, capricious and unlawful” and they would challenge it in court. They also note that “federal agencies cannot arbitrarily change policies and ignore previous findings simply because a new president has taken office.”
It seems that any efforts by Trump to reverse course would likely face a variety of legal and procedural hurdles that could delay construction indefinitely.
There is also a federal court case moving forward simultaneously, with a hearing scheduled to take place in February. What is the basis of the lawsuit and what will be considered at the upcoming hearing?
On July 27, 2016, the Standing Rock Sioux initiated a lawsuit against the Army Corps of Engineers for having improperly issued permits authorizing the Dakota Access Pipeline to cross Lake Oahe.
Arguing that the pipeline threatened their drinking water supply, ancestral lands and sacred sites, the Standing Rock Sioux sought a declaratory judgment and injunction and asserted claims based on the Clean Water Act, National Environmental Policy Act and the National Historic Preservation Act.
Although Judge Boasberg denied the Standing Rock Sioux’s request for a preliminary injunction on September 9, 2016, later that very same day, the Department of Justice, Department of the Army and Department of the Interior issued a joint statement indicating that the Army Corps of Engineers needed more time to reconsider its decision and would not authorize further construction in the meantime.
Following the Army Corps of Engineers’ December 4 decision to require an EIS, the Dakota Access Pipeline (having intervened in the lawsuit) filed a Motion for Summary Judgment, asking the court for a judgment permitting it to build the pipeline under Lake Oahe, despite the Army Corps of Engineers’ clear instructions to the contrary.
And that request is what’s at stake at the February hearing.
With the EIS process projected to take a year or two and the court hearing still at least a month and a half away, what’s happening in the meantime?
Behind the scenes, it’s safe to assume that lawyers on all sides are toiling to meet January’s briefing schedule deadlines, which are fast approaching.
Energy Transfer Partners, Dakota Access Pipeline’s parent company, has vowed “to complete construction of the pipeline without any additional rerouting in and around Lake Oahe” and has left the drill pad (which can be seen in this drone footage from November 1, 2016) in place.
But the company could be dealt yet another blow in the coming days. It has been reported that the Army Corps of Engineers intends to raise Lake Oahe’s water levels, rendering drilling beneath it nearly impossible.
Such a move, however, could flood the protest camps.
Speaking of the camps, all three (Oceti Sakowin, Sacred Stone and Rosebud) have thinned out considerably following Standing Rock Sioux Chairman Dave Archambault II’s request that people return home during the harsh winter conditions — but Standing Rock Sioux lawyer and activist Chase Iron Eyes estimates that there are still about 2300 people left.
In light of centuries of broken treaties and empty promises — and the fact that there have been at least 85 pipeline spills in North Dakota since 1996, with another 176,000 gallon spill occurring earlier this week just 150 miles away from Lake Oahe — it’s no wonder that many tribal members and supporters intend to remain until the drill pad is gone for good.
To underscore their ongoing commitment, the youth of Oceti Sakowin (now known as Oceti Oyate, or the “The Peoples’ Camp”) have built a new sacred fire, after community elders determined that the time had come to extinguish the first sacred fire that had been burning since July.
Right now, it seems that nothing — not even Lake Oahe’s floodwaters — could put out its flames.