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Why the Dakota Access pipeline fight may be a turning point in U.S. environmental politics

A sage tie, which has spiritual significance for Native American Plains tribes
REUTERS/Andrew Cullen
A sage tie, which has spiritual significance for Native American Plains tribes, hangs at the Seven Council camp, one of three encampments that have grown on the banks of the Cannon Ball River over the last month with the purpose of stopping construction of the Dakota Access oil pipeline near Cannon Ball, North Dakota.

In about two weeks' time, Indian-led opposition to the Dakota Access oil pipeline has grown in stature from a somewhat local, perhaps desperate struggle to what may well prove a watershed event in modern American history, marking significant shifts in environmental politics and  pipeline policy.

Given the Obama administration’s newfound willingness to give it more federal review, announced last Friday, it seems at least possible that the 1,172-mile pipeline, said by its owners to be 60 percent complete already, may seriously falter and even fail.

It also appears probable that the unity of tribes across the U.S. in support of the Standing Rock Sioux will persist long beyond their ad hoc collaboration of the moment, regularly described as exceeding in size and power the alliance preceding the Battle of the Greasy Grass 140 years ago. (And we know how that one — aka the Battle of the Little Bighorn — turned out.)

But the fight over the Dakota Access Pipeline (DAPL) is also over issues beyond saving tribal burial grounds from the bulldozer or protecting reservation rights to clean water from the Missouri River. White farmers and other landowners also have opposed the project along its route from the Bakken  formation in North Dakota through South Dakota, Iowa and Illinois, though with little success and less coverage so far.

There were 18 arrests on Saturday in Boone County, bringing the Iowa total to nearly 50, which doesn’t rival the tally over many weeks at the Standing Rock protests but isn’t trivial, either.

In addition to local environmental concerns, or simply wanting the pipeline routed away from their own properties, many in Iowa and elsewhere resent the four states’ grants of eminent domain to the project, which enable Energy Transfer Partners to take by legal force any easements for its pipeline that it can’t obtain by writing a check.

Eminent domain is typically reserved for the taking of private property for a public purpose, like highways and power lines.  Speaking of power lines, we now come to perhaps the most far-reaching way in which the DAPL battle may change national policy — by focusing attention and ire on the U.S. Army Corps of Engineers’ decision to authorize the pipeline without environmental review under its Nationwide Permit 12 program, aka NWP 12.

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.

Fast track for pipeline permits

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.

(As some may remember, this is the authority under which President Obama announced with pride that his administration would fast-track a TransCanada pipeline that had been part of Keystone XL, before eventually deciding to reject the remainder.  For a good discussion of this history, you could do worse than Steve Horn’s Desmog Blog post of last Thursday.)

And though many national environmental groups have opposed DAPL with special emphasis on the NWP 12 issues — mainstream media attention has been fairly light across the country and perhaps especially so in the Twin Cities. As Bill Richardson, the former congressman, governor, ambassador and energy secretary from New Mexico, wrote on Wednesday in The Hill:

As someone who regularly appears on television to discuss the day’s top stories, I’ve been fielding calls lately to give my thoughts on Secretary Clinton’s health, Donald Trump’s health, Secretary Clinton’s foundation, Donald Trump’s foundation, and so on. Yet, I have not received a single call from the media asking about the most important and quintessentially American story that is playing out on the banks of the Missouri River in North Dakota right now.

Clashes at the protest site

Interest has grown dramatically, however, since a flurry of activity that began Sept. 3, when bulldozers flanked by private security guards began digging near the Standing Rock protesters’ encampment, at a spot the tribe had just identified in a court filing as containing old burial sites.

Guards and protesters clashed. Pepper spray and guard dogs were deployed; reports indicate at least several protesters were bitten, at least one of them a child. In remarks that have echoed for many our southern civil rights struggles of the 1960s, local cops have consistently accused the protesters of starting all the trouble by throwing rocks, using flags as weapons and brandishing “pipe bombs” (later corrected to “peace pipes.”)

The authorities have not helped their worldwide image by holding one protest organizer, arrested on a misdemeanor trespassing charge, without bail and issuing arrest warrants for a nationally known broadcast journalist (Amy Goodman of "Democracy Now," accused of stepping onto private land) as well as presidential candidate (Jill Stein, who admits spray-painting a bulldozer with the tag, “I approve this message.”)

To my mind, however, the best parallel here is not Selma but Pine Ridge and all the other places in the Dakotas where authorities fought the American Indian Movement in a series of skirmishes and sieges so well documented by Peter Matthiessen’s “In the Spirit of Crazy Horse.” How I wish he were still with us to add his perspective on what’s unfolding there today.

And I think the sometimes embarrassing conduct of Morton County Sheriff Kyle Kirchmeier and the officers he commands shouldn’t shift all the focus away from the behavior of Energy Transfer Partners, which by most accounts has muscled its way through state-level project reviews and is suing protest leaders in a clear attempt at intimidating them into silence.

Meanwhile, the Standing Rock protest has set off like-minded demonstrations in Detroit, St. Louis, Toronto and, of course, at the White House; according to The Nation, more than 100 protests were planned worldwide for Tuesday.

It has also inspired a Michigan tribe to withdraw its approval of a settlement between the Environmental Protection Agency and the Enbridge pipeline company over damage from the big spill at Kalamazoo in 2010. Echoing the Standing Rock Sioux, the Grand Traverse Band of Ottawa and Chippewa says its treaty rights to consultation on matters affecting the Straits of Mackinac, which are crossed by an Enbridge line, were ignored in drafting the deal.

Where do we go from here?

Most of the DAPL project can go forward despite the administration’s decision to temporarily block construction on Corps-controlled land on or under the Missouri River at Lake Oahe until it resolves “important issues [of consultation] raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally.”

The announcement said the Corps will “move expeditiously” to reach this resolution and asked Energy Transfer Partners to voluntarily suspend DAPL work elsewhere until that’s done; to nobody’s surprise, the company declined.

At the same time, the Corps’ NWP 12 is heading for expiration next May unless it is renewed; public comments on renewal were collected during the summer but no decision has been made. Given the level of controversy that has arisen from the DAPL example, it seems fair to wonder if there might not be significant changes, at the least, in store for the permit or the ways it is applied.

Especially given this paragraph from the announcement:

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

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Comments (3)

Raises the question

Ron's article raises the basic question: Why do oil pipelines have the power/right of eminent domain in the first place?

Eminent domain is essential for linear infrastructure

Because of sunk costs in the planning and the alignment constraints that must be resolved up front. If all right-of-way transactions with landowners must be voluntary, holdout problems would become insurmountable.

The issue isn't eminent domain, it's that these elements of our energy infrastructure are inappropriately privatized (or regulated by public agencies that are captured by the industries they regulate). Energy infrastructure decisions should be made as carefully as possible based solely on the public interest (as to both need and alignment). If they were, we would have much fewer of them. For those that would be necessary, it would be impossible to avoid impact to some folks, but at least we'd be choosing the alignment and construction methods to minimize the impact and there would be compensation from the public at large for the concentrated impacts from a project otherwise in the public interest.

Dakota Access Pipeline permitting approach

Thanks for covering the Corps of Engineers permitting approach at one of the hearts of this issue, please keep up the coverage as it approaches renewal - or not - next May.