By now, everyone who reads this blog has heard about #NoDAPL, the protests in North Dakota over the Dakota Access Pipeline. The issues are either very simple (NO to all pipelines, everywhere, end of story) or quite complex, involving Native rights, a protest encampment and permits and injunctions, arrests of protesters and journalists, calling out the National Guard, procedural challenges to the Army Corps of Engineers, destruction of Standing Rock Sioux Tribe cultural and burial sites, other substantive challenges based on water protection and climate change, defeats and partial victories in court, and federal government orders to stop the construction – or to stop parts of it. Confused yet?
Since I make sense out of confusion by reading and writing, and since you (presumably) read this blog for some kind of enlightenment, I’m posting a two or three or maybe even four-part explanation of what is going on. This is the first part:
Failure to consult, failure to protect: Army Corps of Engineers, State of North Dakota, Energy Transfer Partners
Let’s start with Native rights to this land and water. Apart from general issues of forced treaties and genocide, the Black Hills were seized by the federal government from the Standing Rock Sioux through Congressional action in 1877, and much of the now-public land crossed by the pipeline was acquired gradually by virtue of the same legislation. Despite the 1877 seizure of the Black Hills from the Sioux nation, ruled illegal in 1980 by the U.S. Supreme Court, U.S. law still requires that federal agencies consult with Native nations before proceeding with construction projects on land that has “religious and cultural significance.” The Atlantic summarizes:
“It is this right—the right to be consulted—that the Standing Rock Sioux and their legal team assert was infringed. The Army Corps of Engineers must approve and permit any interstate pipeline. The tribe alleges that not only was the permitting of Dakota Access rushed, but also that the tribe itself was not included as partners through the historical surveying process.”
The Army Corps of Engineers and the State of North Dakota failed to provide the required consultation with the Standing Rock Sioux Nation. According to The Atlantic’s reporting,
“Only near the end of the process, when approval seemed inevitable, did North Dakota state authorities approach the tribe with a couple areas of concern.”
The Army Corps of Engineers also bypassed standard environmental protection procedures. Ron Meador explains in MinnPost:
“Normally a four-state pipeline built to carry petroleum products across the landscape, like every other project with significant potential impact on the surrounding environment, would require federal review under the National Environmental Policy Act. The requirement is obvious and until recently it was routinely met.
“But in the last several years, in a shift most commentators trace to the Obama White House, several large pipeline projects have gotten federal signoff under NWP 12, which is administered by the Corps as part of its authority to protect the nation’s surface waters and wetlands.
“Designed for power lines, substations and similar public utility projects, this permit assumes minimal impact from, say, a tower or building whose surface disturbance would be less than a half-acre in size. By approving DAPL under NWP 12, the Corps essentially decided to treat it as a series of small wetland crossings instead of a four-state infrastructure project that will transport perhaps a half-million barrels of petroleum products per day, with high risks for spills and a huge contribution to global warming.
The Dakota Access Pipeline is a $3.7 billion, 1,172 mile pipeline planned to transport 470000 barrels of Bakken crude oil daily from North Dakota to a port in Illinois. The pipeline is owned by Energy Transfer Partners, a firm headquartered in Dallas.
Dave Archambault, chair of the Standing Rock Sioux Tribe, explained to Democracy Now:
“There are portions of this pipeline that cross federal lands, like water, and so they have to get permits, but they get easements on private property. And the private landowners who do not approve of the pipeline, there’s the eminent domain taking. So, the landowners where the pipeline crosses kind of have their hands tied. But in the federal permitting process—and it’s like, of the 1,200 miles, 200 waterways, maybe 300 miles are on federal lands. That’s what we’re saying: If we can’t do anything on the private lands, we’re going to ask the federal agencies to reconsider and take a look at this, because we never had the opportunity to express our concerns.”
The objections set out above might be called procedural: the Army Corps of Engineers, the State of North Dakota, and Energy Transfer Partners have violated normal and legally required procedures for approval of a pipeline.
In addition to these serious procedural violations, three serious substantive objections exist: destruction of Native sacred sites and burial places, endangering water quality, and overarching concerns about climate change and carbon emissions. I’ll insert links to those blog posts as I get them written and published.