Obama Caves on DAPL: What’s Next?

by Kathleen Sgamma, President on December 7, 2016 - 8:43am

I don’t think anyone was surprised by the fact that the Obama Administration caved into the No DAPL protests on Sunday when the Army Corps of Engineers denied an easement for the last bit of the Dakota Access Pipeline (DAPL) to go under Lake Oahe. Dismayed that the rule of law could be shouted down by rioters and saboteurs, yes. Disappointed that two court rulings and reams of supporting evidence carried less weight than baseless charges of racism and police brutality, yes. But surprised, no.

Since August, No DAPL protesters have been occupying camps along the Cannonball and Missouri Rivers on private and Corps lands. Their actions include sabotaging equipment, killing livestock, blockading roads, throwing Molotov cocktails, and even firing a gun at police. Hundreds of arrests have been made. From burning tires to dumping human excrement in open pits, they haven’t shown much respect for the sacred lands they are supposedly protecting.ine (DAPL) to go under Lake Oahe. Dismayed that the rule of law could be shouted down by rioters and saboteurs, yes. Disappointed that two court rulings and reams of supporting evidence carried less weight than baseless charges of racism and police brutality, yes. But surprised, no.

President Obama, who has felt free to comment on local issues in the past, has remained silent on an issue directly involving the federal government and marred by several violent clashes with law enforcement. He hasn’t sent in any support to the Morton County Sheriff’s Department or North Dakota. The dangerous situation has festered in the face of inaction by the federal government.

On the flip side, an Obama-appointed judge has reviewed the case exhaustively, and his September ruling is illuminating. Judge Boasberg detailed ad nauseum how Energy Transfer Partners, the company backing the DAPL, exhaustively and conscientiously met all permitting requirements and engaged in careful planning, consultation and environmental analysis.

The company conducted archeological surveys along nearly twice the 357 mile length of the pipeline in North Dakota. It modified the route 140 times to avoid potential cultural resources, and conducted 559 meetings with communities, elected officials and other organizations to gather input.

Likewise, the Corps conducted 389 meetings with 55 tribes to meet tribal consultation responsibilities. However, the Standing Rock Sioux Tribe, which is leading the protests, chose not to participate. After dozens of attempts to engage the tribe and meetings where tribal representatives including Chairman Archambault simply failed to show up, the Corps approved the Clean Water Act permits in July.

Since over 99% of the pipeline is on private lands, there is not a requirement to conduct a long, drawn out Environmental Impact Statement (EIS), as was required for Keystone XL. The Tribe, with shaky legal advice from EarthJustice, is claiming that the Corps’ process is faulty because it should have done a full EIS.

Sounds familiar? It’s the same situation oil and natural gas producers face on a regular basis. No matter how carefully you plan operations, how many environmental protections you put in place, Keep-It-in-the-Ground activists will push for no development whatsoever. Finding a federal nexus and forcing years-long EISs for private projects is a Holy Grail of the environmental movement. In that way, they can control the federal process and turn to the courts when that process doesn’t result in a halt to the project. EarthJustice pushed a legal theory on the tribe that these individual water crossing permits from the Corps together constitute a major federal action requiring a full EIS. This theory has already been shot down by the D.C. Circuit Court in Sierra Club v. U.S. Army Corps of Eng’rs, 2015. 

And with many other dubious legal maneuvers, EarthJustice has won this round with the current administration and its penchant for extra-legal activity. The Corps announced it’s kicking off an EIS for a project that is 99% complete. But therein lies the key to overturning this awful decision. The Trump Administration could simply follow the judge’s ruling, approve that last final easement, and stop the new EIS. Many who understand that pipelines safely carry the oil that forms the basis of American’s safe and healthy lifestyle will be supporting the President-Elect in that decision. 

Photo source: Washington Times