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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.

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.

The protest camp at Standing Rock. (Photo: Erica Wohldmann)

The protest camp at Standing Rock. (Photo: Erica Wohldmann)

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.

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11 Responses

  1. Marc says:

    For all its bluster, it seems that ETP is royally screwed. It will NOT be operating the pipeline by January 1, and that means it will lose millions of dollars every day, in addition to the likelihood of existing oil delivery contracts being cancelled and re-negotiated at MUCH lower prices than when oil was over $100/barrel. At current market rates the negotiated price could be well under the current market rate of around $50/barrel.

    But, that is only the tip of the iceberg. ETP is also facing a major challenge to its TransPecos Pipeline Project in the Big Bend of Texas where they have falsely labeled it an intrastate pipeline even though it terminates in Mexico making it an International pipeline. ETP is facing huge objection from the people of West Texas, particularly the ranchers and farmers whose property would be seized by eminent domain to build the pipeline. I understand that some of the water protectors in North Dakota are now heading to Big Bend, where the air is warmer and the land is privately owned by people who will welcome their support in opposition to the pipeline.

    Meanwhile, on the economic front, many of the biggest banks financing Kelcy Warren and ETP have pulled their financing leaving ETP in a major financial hole at a time when cashflow is most needed. Everything is working against ETP, and hopefully these will kill the company. ETP needs to just go away never to be heard of again!

  2. Merrick says:

    This article mentions the possible water contamination for the Souix but fails to mention their water intake is more than 70 miles from the proposed DAPL crossing.

  3. Andy G says:

    Also fails to report how many thousands of people that also use the Missouri River for their water supply that are situated downstream. There was a figure that gave how many gallons per hour was going to be pushed through that 30 or 36 inch pipeline. How many hours will pass if a breech happens. That leak that happened north of the contested location took how long to detect?

  4. vicfurman says:

    Trump

  5. Marc says:

    Merrick, apparently you are unaware of how water migrates. The World Heath Organization has places aniline tracer dyes in water in the United States and found that exact same water in Europe, Asia and Africa. Water is fluid and it goes everywhere, thus the adage, “We all live downstream and downwind.” A mere 70 miles is a pittance of distance. The Enbridge pipeline spill on Talmadge Creek in Michigan in 2010, polluted all of Talmadge Creek plus at least 90 miles of the Kalamazoo River, killing over one million fish, birds and animals and driving about 40 families from their homes. Six years later not even one third of the spilled oil has been cleaned up after an expense of over $500 million.

    You so easily dismiss the threats to those living downstream, but if it were YOUR water being threatened, then I would guess you would have a vastly different concern and perspective. It amazes me how easily you disregard the health and safety of others in your defense of a corrupt company who began building their pipeline BEFORE having secured the proper permits or having done the required environmental impact studies to determine potential threats.

    All that aside, as I already stated, ETP is already screwed because they will NOT open that pipeline in less than 72 hours, which puts them in technical default of their contractual obligations to their customers who counted on moving their oil through that pipeline. ETP is going to take it up the poop chute on this one!

  6. Facts says:

    Marc, you are sadly mistaken on this issue. ETP already has received extensions until 3/31/17 for the contractual issues. Sorry to rain on your parade. Also, your comments on the shippers and oil prices are ridiculous. Oil is actually higher now than when the shipping commitments were made. No issue there. Lastly, the permits were issued. Jo Darcy, at Obamas command, ignored the actual Army Corp recommendation for final permitting and denied the permit. She has that power. However, unfortunately for the protesters, the new admin has the power to reinstate the already granted permit. It will stand in court against challenge, just like it did twice in Federal courts thus far. Face it, DAPL will be completed and this protest built on mistruths will end. Any comment on Standing Rock getting millions from oil companies for fracking on their reservation or royalties for the trains that carry crude across their reservation? This was never about the water. Was always about $.

  7. A. Scott says:

    An excellent rebuttal “facts” … to the silliness posted by Marc.

    In addition to the extensions on the contracts, the claim protesters have made any impact on the financing is simply ridiculous. By their own count – the protesters claim investors have divested $40 million in funding. Laughable.

    Even if true, $40 million out of a $3.9 Billion project is immaterial. Especially when other investors immediately snapped up those investments.

    The US Army Corp of Engineers validly and legally issued the permits for this project in June 2016 after a years long process. The Army Corp as directed by the Dept of Justice hacks Obama brought in reviewed the issuance of the permits and found them properly issued and legal.

    The DoJ scumbags were forced to admit the same in their early Dec release refusing to release the easement. And the District Court and Court of Appeals have agreed.

    The easements for crossing under the Missouri river – at Lake Sakakawea and at Lake Oahe at Cannonball – were authorized and approved in writing 7/25/16. The easement document for the Lake Sakakawea crossing was released by the Corp 8/1/2016 and that section was completed.

    There is ZERO legal basis to refuse the ministerial act of providing the easement document for the already approved easement for the Lake Oahe crossing. None. The Corp has NO DISCRETION to withhold an approved document.

    And the career Corp staff all know this. This is a DoJ action – done for purely political purposes – in direct violation of the law.

    As to the claim that the Corp has reviewed and determined an EIS is now necessary – that is yet another DoJ outright lie.This blatant politicization of a lawfully reviewed and issued permit is a first in history. I have talked to many of the career staff – and no in the Corp – with the exception of Obama political appointee Jo Darcy, believes there is ANY legal basis to withdraw lawfully issued permits and requiring an EIS.

    Add that the DoJ’s refusal to perform the ministerial act and issue the approved easement document is diametrically opposite to the Army Corps win (by the DoJ) in Court in the tribes claims about the permit.

    The Corps testified under oath to the Court that all requirements were legally met. The Court reviewed the record and agreed and an appeals panel affirmed. The DoJ’s new action, after prevailing directly contradicts their representations and testimony to the Court. They now claim, after further consultation with the tribe, that an EIS is required.

    This claim is made despite NO NEW evidence being uncovered or presented. The DoJ’s reversal turns their prior testimony into perjury. And perpetrates a fraud upon the Court.

    The Court kicked the can down the road – instead of granting ETF’s motion for summary judgement, which there is clear legal basis to have done. The Court chose to delay just long enough for the new admin to be able to act and undo the illegal actions by the Corp. But Judge Boasberg also telegraphed a clear message to settle this. And set scheduling so it would be quickly addressed if the new admin does not timely act to resolve this.

    Once again – there is no valid legal basis for the DoJ actions in refusing to provide the already approved easement, and demanding an EIS. None.

    The incoming administration does not have to “rationalize and supported findings that counter those already made.” They only have to find that the decisions forced upon the Army Corp by the previous admin and their DoJ henchman are not supported by the record or the law. Which any first year law school student could do.

    Obama appointee Jo Darcy already know she is toast. The new admin will replace her … but before doing so may well simply direct her to reverse her lawfully unsupported obstruction and release the easement document … make her directly responsible for the mess she chose to create by abandoning her professional ethics and honesty.

    The career staff at the Army Corp will be only to happy to help her out the door so they can try to get their reputation back.

  8. WP says:

    A. Scott, you fail to address the fact that the Corps has no legal RIGHT to issue such a permit, since Standing Rock retains the subsurface rights to the land that DAPL is supposed to go under.

  9. Joel Johnson says:

    How many pipelines already exist under the Missouri River between Bismarck and Mandan from the Tesoro refinery in Mandan? How many pipelines already exist under the Missouri River in the DAPL corridor. If the pipeline is on tribal land, why aren’t the Federal Bureau of Indian Affairs police involved? Just curious.

  10. Ellen Finazzi says:

    Just in case since you are all concerned with who wins! We the people will lose. Water is the source of all life. With out water we all die. What good is money in your greedy pocket. You can not eat money(greed) or drink oil. We all die!!!

  11. leanne keefer bechdel says:

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