THE DAKOTA ACCESS PIPELINE AND THE RULE OF LAW – FACTS MATTER
Watching the events and the court case surrounding the Standing Rock Sioux Tribe, I appreciate that people are paying attention to any negative environmental impact an oil pipeline may have. At the same time, I cringe at the coverage and the absence of important factual information related to the pipeline’s legal permitting process. When I hear celebrities on the news claim the Dakota Access Pipeline is going through the heart of the Standing Rock Sioux Tribe’s land, I expect the reporters to correct them. The media should tell us that the pipeline follows existing utility easements (including the existing gas pipeline) and runs within half a mile of the tribal land, but does not cross it. No one wants any water to be in danger of contamination or sacred grounds to be destroyed. Because of the pipeline’s location near the Tribe’s land, and a planned route under a lake (again, following the same route as other pipelines, but here, going deeper and with double walls for extra protection), special attention is warranted. And a Federal Court, in response to an injunction filed by the Standing Rock Sioux Tribe, issued a painstakingly thoughtful, 58-page opinion that demonstrated it was fully “aware of the indignities visited upon the Tribe over the last centuries,” and “scrutinize[d] the permitting process with particular care.” See, Memorandum Opinion issued by the Honorable James E. Boasberg, U.S. Dist. Ct. Judge for the District of Columbia, in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, Civil Action No. 16-1534, dated September 9, 2016, at p. 58.
The Standing Rock Sioux Tribe sued the United States Army Corps of Engineers to block the operation of the Corps permit process for the Dakota Access Pipeline (DAPL). Thereafter, the Tribe filed a motion for preliminary injunction alleging that the Corps flouted its duty to engage in trial consultations under the National Historic Preservation Act (NHPA) and that irreparable harm would ensue. In its ruling, the Court concluded that the Corps likely complied with the NHPA and the Tribe had not shown it would suffer injury that would be prevented by any injunction the Court could issue. See Memorandum Opinion at p.1-2.
To be clear, the Tribe did not file an action against the pipeline, nor did it seek an injunction against the Corps to halt the permitting process and protect itself from any potential environmental harms. Even though the media’s spotlight on this case is on water, the Tribe has not shown that the pipeline work is likely to cause damage. See Memorandum Opinion at p. 56. In fact, the area around the pipeline’s route has been subject to previous surveying for other utility projects. The pipeline “will run parallel, at a distance of 22 to 300 feet, to an already-existing natural gas pipeline under the lake. Dakota Access will also use the less-invasive HDD [Horizontal Directional Drilling] method to run the pipeline, which will require less disturbance to the land around the drilling and bury the pipeline at a depth that is unlikely to damage cultural resources.” Memorandum Opinion at p. 57 [citations omitted].
With respect to the Tribe’s claim that they had not been sufficiently consulted during the permitting process, the Court outlined the extensive efforts of the Corps—with little success—to consult with the Tribe beginning in September, 2014. Memorandum Opinion at p. 16. In addition to numerous attempts to schedule meetings, the record reflects many letters went unanswered despite extensions in the deadlines to respond, and meetings that were scheduled but later cancelled by the Tribe. See Memorandum Opinion at pp. 16-21. Although there appears to have been some sporadic meetings in 2015, the facts of the case demonstrate ongoing, often ignored, efforts to meet with representatives from the Tribe. Throughout this time, the Corps also invited the Tribe to a general tribal meeting in Sioux Falls set for December, 2015. While five other tribes attended, Standing Rock did not. Memorandum Opinion at pp. 24-25. Meetings did occur in earnest in 2016, with no fewer than seven between the Tribe and the Corps between January and May. In one significant meeting, the Tribe’s archaeologist met with the Corps to express specific concerns about tribal burial sites, and in response, the Corps verified the information and successfully instructed Dakota Access to move the pipeline to avoid them. Memorandum Opinion at p. 28. This fact seemed to carry particular weight with the Court, because it demonstrated the willingness to work with the Tribe and Dakota Access Pipeline’s ready acceptance to re-route where the Tribe raised specific concerns.
In fact, the Court’s extensive opinion outlines the early efforts by Dakota Access to plot its route based on past cultural surveys and then extensive, new surveys to identify potential cultural resources: “[b]y the time the company finally settled on a construction path, then, the pipeline route had been modified 140 times in North Dakota alone to avoid potential cultural resources.” Memorandum Opinion at pp. 13-14. Additionally, the records reflect that where other tribes raised concerns over the pipeline route, Dakota access responded. For instance, when a site was declared eligible for listing on the National Registry that had not previously been identified, Dakota access agreed to bury the pipeline 111 feet below the site to avoid disturbing it. Memorandum Opinion at p. 29. According to the Court, “Standing Rock took a different tack. The Tribe declined to participate in the surveys because of their limited scope. Instead, it urged the Corps to redefine the area of potential effect to include the entire pipeline and asserted that it would send no experts to help identify cultural resources until this occurred.” Memorandum Opinion at p. 29 [citations omitted].
That is why, in response to the Tribe’s claim that the Corps failed to offer it a reasonable opportunity to participate in the Section 106 process (the portion of the NHPA that requires a federal agency to consider the effects of its undertakings on property of historical significance, including property of cultural or religious significance to tribes), the Court said that the factual record of the case told a different story. Summarizing the events, the Court explained that the “Tribe largely refused to engage in consultations. It chose instead to hold out for more—namely, the chance to conduct its own cultural surveys over the entire length of the pipeline.” Memorandum Opinion at p. 48. The Corps contended, and the Court agreed, that it did not have jurisdiction over the entire pipeline, but only discrete areas involving certain waterways.
Overall, the impression left by the Tribe’s legal action appeared to be less about a desire to re-route the pipeline, but instead its intent to stop, and probably remove, the entire pipeline. The Court hinted at this in its opinion, and even pointedly noted that the “relief sought cannot stop the construction of DAPL on private lands, which are not subject to any federal law,” and which comprise of 99% of the pipeline’s route. Memorandum Opinion at p. 51, and at p. 2. It is worth noting, again, that the Court was not without sympathy: “[t]he tragic history of the Great Sioux Nation’s repeated dispossessions at the hands of a hungry and expanding early America is well known. The threat that new injury will compound old necessarily compels great caution and respect from this Court in considering the Tribe’s plea for intervention.” Memorandum Opinion at pp. 50-51.
The Court’s tedious review of the record and careful consideration of the law honored its promised diligence. Despite its heightened scrutiny of the motion before it, the Court ultimately found in that the Corps complied with its permitting obligations, and the Tribe had not shown it would suffer irreparable harm that could be prevented by any injunction the Court could issue.
On the same day the Court issued its ruling that the Corps did everything right, President Obama’s administration (through the Departments of Justice, Army, and Interior) issued a statement that they wanted the pipeline to halt anyway, to see if the Corps needed to reconsider any of its previous decisions regarding the environmental impact of the pipeline. I found this to be a surprising development—on the day the Corps won, it issued a statement that it would nevertheless re-evaluate its permitting, and asked Dakota Access to voluntarily halt construction. By all appearances, it would seem someone or some department above the Corps wanted to deflect the negative publicity, even when the Court ruled the Corps acted properly in granting the pipeline permits.
Then, amidst inaccurate reporting about the pipeline “going through the heart of” the Tribe’s land or through sacred land, the Corps denied the final easement in the pipeline’s construction after initially saying it should be granted. The chilling result is that companies building infrastructure can be faced with so much uncertainty. It is difficult concept to swallow that energy companies should be faced with a moving target—this pipeline is over 90% built—and only 3% of the entire route required any Federal approval.
I do not ignore the important social issues at stake. For instance, maybe the current framework is flawed for engaging a tribe and ensuring meaningful tribal input. If so, we should demand new legislation and ask Congress to change that framework. Nevertheless, even if the current framework is flawed, the facts of the case show that the Corps documented dozens of attempts it made to consult with the Standing Rock Sioux from the fall of 2014 through the spring of 2016 on the permitted pipeline activities, including at least three site visits to the Lake Oahe crossing. See Memorandum Opinion at pp. 14-33. I would encourage anyone who is skeptical of the permitting process, to read the opinion. Lost within the sensationalism surrounding the Standing Rock case, is the chilling message being sent to energy companies who attempt to build our energy infrastructure. Also, I don’t think we should look the other way when the Executive branch of government changes the rules at the end of the game. I don’t think we will like the place such a path will take us.