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Dakota Access Pipeline decision is a victory for Indians, for direct action — and for rule of law

The Corps makes a startling confession about risk assessments withheld from the Standing Rock tribe during consultations.

Protesters’ victory may serve, I earnestly hope, to encourage more direct action in defense of environmental values in this age where normal recourse is so often falling short.
REUTERS/Stephanie Keith

I don’t know quite know how to put into words how proud I am of our people … I don’t just mean the indigenous people of this continent, I mean all the people who came to stand with us. And it’s a beautiful day. It’s a powerful day.

— Jon Eagle Sr. of the Standing Rock Sioux tribe, as quoted in the New York Times

No matter the eventual outcome, Sunday’s decision to withhold for now a Dakota Access Pipeline (DAPL) crossing of the Missouri River is a major victory at many levels. And some of them should be appreciated even by people who like the project, including the president-elect.

Probable rerouting away from Lake Oahe is of course a huge win for the courageous, stalwart protesters against various abuses associated with DAPL, especially at Standing Rock but also in the farm country of Iowa and Illinois.

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Their achievements may also serve, I earnestly hope, to encourage more direct action in defense of environmental values in this age where normal recourse is so often falling short — while discouraging the excessive, militarized police responses we’ve seen at the encampments.

(Though some protesters say they’re not leaving just yet, and it’s probably too soon for Attorney General Loretta Lynch to recall her monitors and mediators.)

But the little-told story regarding Sunday’s announcement concerns some startling confessions  at the upper reaches of the U.S. Army Corps of Engineers, which now admits it has kept the tribe in the dark on key information about the crossing’s potential impact on members’ lands and lives.

So in that respect, these developments are a triumph of the law and its fair-minded, if shamefully belated, application to the rights of the Standing Rock reservation. Every American ought to admire that.

How pipeline escaped review

The Corps’ announcement late Sunday afternoon came at an awkward time in the news cycle and created a somewhat complex situation, not given to sound bites and 25-word summaries.

It has been widely reported, for example, that the Corps will not grant Energy Transfer Partners an easement to drill its pipeline crossing beneath Lake Oahe, which the Corps created and controls by virtue of having built it with a dam across the Missouri. Also, that the Corps intends to identify a new crossing elsewhere, based upon a new environmental review of alternatives.

Either, neither or both of these outcomes seems possible in my reading of the memorandum issued by Jo-Ellen Darcy, assistant secretary of the Army for civil works.

ETP needs two permits for an Oahe crossing. One is the standard “408 permit” for projects built on riverbanks and lakeshores, to prevent undue impact to public water bodies. This was granted back in July, after the Corps determined that the crossing “did not constitute a major federal action that would have significant environmental impacts.”

Between those quote marks is the magic language that exempts the crossing portion of the project from a full environmental impact analysis under the National Environmental Policy Act.

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NEPA reviews are commonplace for all manner of projects, from new roadways to new copper-nickel mines at the edge of the Boundary Waters, even for good-sized logging projects within the national forest surrounding the Boundary Waters wilderness. It’s a pretty small project that falls outside NEPA purview, is what I’m saying.

Still, this 1,200-mile pipeline crossing four states — creating significant surface disturbance during construction, as well as a new risk of spills and leaks after it’s in operation — has avoided NEPA along its entire length because the Corps decided to consider it under its Nationwide Permit 12. As I wrote in September:

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. …)

Risk assessments withheld

The portion at Lake Oahe was outside NWP 12, however. And instead of a full NEPA review, the Corps did a brief “environmental assessment” of the crossing — and also of an alternative crossing site, about 10 miles upstream from Bismarck, that had been eliminated early on.

The Bismarck alignment provoked significant public outcry over the threat to drinking water sources in North Dakota’s capital city, and the crossing was dropped in favor of one a half-mile upstream from the Standing Rock reservation — even though, as the memo notes,

The Tribe relies on Lake Oahe for drinking water and irrigation, portions of Lake Oahe downstream from the proposed crossing remain within the Tribe’s reservation boundaries, and the Tribe retains water hunting and fishing rights in the lake.

Under a separate federal law, the Mineral Leasing Act, an Oahe crossing also requires a second permit, or easement, which the Corps is supposed to grant only under terms that “protect the environment, those who rely on fish and wildlife in the area for subsistence, and the public.”

This is the signoff the Corps has not yet given, and may yet or may not give, pending a more thorough review of both the potential environmental impacts and also the quality of its consultation with the tribe, which the memo admits leaves something to be desired.

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Because of security concerns and sensitivities, several documents supporting the Environmental Assessment were marked confidential and were withheld from the public or representatives and experts of the Standing Rock Sioux Tribe. These documents include a North Dakota Lake Oahe Crossing Spill Model Discussion Report … the Lake Oahe HDD Risk Analysis Report, and the DAPL-Route Comparison and Environmental Justice Considerations Memorandum.

The Corps memo still maintains that “its previous decisions comported with legal requirements.” However, on Nov. 14 it determined that additional discussion with the tribe was warranted.

An initial five-hour meeting last Friday surfaced some “30 additional terms and conditions that could further reduce the risk of a spill or pipeline rupture,” and there was discussion of better monitoring and emergency response arrangements. But no movement toward an easement decision was made.

That will take a while.

What would Donald do?

Another theme running through coverage of the Corps’ announcement is that anything that happens between now and Jan. 20 is meaningless because surely Donald Trump, who has voiced support for the pipeline and may or may not still hold an investment interest in it now, will just give ETP what it wants by executive order after his inaugural.

Trump and his transition advisers have declined to answer questions about this prospect, but I actually think such a move is kind of unlikely.

What we have in the Corps’ handling of these matters, and now in its confession of deficiency, is a record of decision that becomes the basis of court review.

Indeed, it’s possible to see Sunday’s announcement in part as a pre-emptive move to head off a tribal lawsuit over its earlier handling of consultative obligations. But if Barack Obama’s White House has to worry about having a Corps easement for ETP undone in court, so does Donald Trump’s.

Not incidentally, it isn’t hard to imagine at least a few members of the Trump plurality asking themselves:

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How would I feel if some big, controversial infrastructure project was being rammed through my backyard, and the federal agencies that were supposed to be reviewing its risks were keeping their assessments secret from me and my neighbors?