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Suppressed memo shows many failings in Corps review of Dakota Access plan

This goes beyond silly and transparent revisionism. It’s an attempt to muddy some serious shortcomings in the Corps’ performance on DAPL that are little known and less understood.

A police barricade stands on Backwater Bridge north of the Dakota Access oil pipeline protest camp near Cannon Ball, North Dakota in January.
REUTERS/Terray Sylvester

Shortly after Donald Trump directed the U.S. Army Corps of Engineers to fast-track approval of the Dakota Access Pipeline’s Missouri River crossing on January 24, four legal memoranda related to the project were pulled from the Interior Department website.

This goes beyond the silly and transparent revisionism the new administration is bringing to settled government positions on climate change and other inconvenient realities. It’s an attempt to make opaque some serious shortcomings in the Corps’ performance on DAPL that are little known and less understood.

In particular, one memo details many failures of the Corps and of Energy Transfer Partners, which is building the project, to meet the requirements of federal law in dealing with the Standing Rock and Cheyenne River tribes. (The other three discuss aspects of federal energy regulation, land management and migratory bird protection whose relevance to DAPL is less clear to me.)

Their authorship is estimable: Hilary Tompkins, an expert in Indian law who has been Interior’s solicitor, or top-ranking lawyer, and with the change in administrations is moving into private practice.

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Tompkins’ memos are still visible in the U.S. District Court file for the tribes’ legal challenge to DAPL, a case that may produce an important ruling as early as next week, according to comments Judge James Boasberg is reported to have made last Tuesday.

It’s not difficult to imagine that ruling being influenced by the Corps memo’s extensively researched findings, including these:

  • The Corps’ abbreviated environmental assessment assumes that the crossing under Lake Oahe does not encroach on the Standing Rock Reservation. But the relevant treaties, subsequent acts of Congress and court decisions support the opposite conclusion, which requires consultation at a government-to-government level that the Corps has tried to avoid.
  • The Corps’ minimal environmental assessment accepts ETP’s assertions that “the pipeline will include technology designed to prevent leaks” and that the risk of an accident is extremely low, even though significant leaks occur in the U.S. pipeline system almost 300 times per year.
  • Although ETP has prepared an analysis of the impact of possible spills, this material has not been made available for independent review — by the tribes, federal experts or the general public — and does not consider the consequences of a truly “catastrophic” incident.
  • In concluding that the crossing poses little risk to the reservation’s drinking water, the Corps asserted erroneously that most of that water comes from wells and surface sources other than Lake Oahe — even though a majority of Standing Rock’s 4,300 residents get their water from a system whose intake is in Oahe.

Maybe, just maybe, this work can also persuade some pro-DAPL folks that there’s more to this conflict than a desperate effort to block a project that, as ETP routinely asserts and too many onlookers believe, had followed all the permitting rules.

Little press attention

But despite a fine piece of reporting last week by Ellen M. Gilmer at Energywire, the solicitor’s analysis isn’t getting the attention it deserves, especially in the mainstream press.

Tompkins’ 37-page “M-opinion” is dated last December 4 — the same day the Corps announced it was withholding a final decision on the DAPL crossing until it had conducted a review of potential environmental impacts, at the urging of the Obama White House.

The Corps had requested Tompkins’ review, and its announcement mentioned some of the issues she had raised without citing the source or going into much detail. It also asserted, in the words of assistant Army Secretary Jo-Ellen Darcy, that the Corps’ previous decisions moving DAPL ahead had “comported with legal requirements.”

Tompkins’ findings reach an opposite conclusion, and while they may not matter to an administration determined to wave the flag for fossil fuels, the court case is a different matter.

Jan Hasselman of Earthjustice, attorney for the Standing Rock tribe, told Gilmer he felt the Tompkins memo was “potentially determinative of the outcome of the case.”

We have to take that assessment as aspirational, but other legal experts Gilmer consulted seemed to agree the Tompkins findings would help Hasselman — while not necessarily predicting a slam-dunk. James Coleman, an energy law professor at Southern Methodist University, opined:

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The problem is that the Department of Interior letter says that the original environmental assessment was incorrect, and the Army secretary letter says, “No, actually, we still think that was correct.” The tribes would be in a much stronger position if the Army Corps had said, “OK, we need to withdraw this because it turns out we were wrong….”

In fact, Darcy’s defense of her agency’s work — even as she announced the do-over — was quite the opposite. Her concluding paragraph:

The Corps, and particularly the Omaha District and Northwestern Division, have performed with remarkable diligence and professionalism in responding to a demanding situation that has galvanized tribal communities across the nation, and presented difficult and unique challenges in protecting public safety, First Amendment rights, property rights, and law enforcement.

Excerpts from the memo

Tompkins’ findings are of course lawyerly but they are put plainly, and I think it’s fair to say they could scarcely be more at odds with Darcy’s defensive conclusion. Have a look at these excerpts, lightly compressed, and judge for yourself, starting with discussion of how the crossing got rerouted from the Bismarck area to Standing Rock:

The Corps ultimately rejected the Bismarck route due in large part to its proximity to a central municipality and to “multiple conservation easements, habitat management areas, National Wildlife Refuges, state trust lands, waterfowl production areas, and private tribal lands.” The Corps also noted that the Bismarck route crossed or was in close proximity to “several wellhead source water protection areas,” and thus determined that the agency should avoid that route so as ”to protect areas that contribute water to municipal water supply wells.

But while the Corps determined that these concerns rendered the Bismarck alternative non-viable, and thus chose not to analyze their decision in detail in the [Environmental Assessment], the EA minimizes identical considerations with respect to the Lake Oahe route’s threat to on-reservation tribal hunting, fishing, and water rights….

 The rationale for putting the pipeline at Lake Oahe is based on representations from the applicant [meaning ETP] with no input from the Tribes.

* * *

It appears from the record that the Corps did not specifically consult with the Tribes when it changed the proposed pipeline location from the original Bismarck route to the Lake Oahe route…. This abrupt shift did not comply with either the Corps’ own tribal consultation policy or that of the United States Department of Defense.

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Consistent with the trust relationship, proactive tribal consultation is important to, among other things, allowing tribes to raise the types of concerns addressed in this Memorandum prior to the commencement of federal action, thus avoiding the need to reconsider issues or halt ongoing projects and ultimately conserving federal, state, tribal, and private resources.

* * *

While I understand that the applicant conducted spill modeling for the DAPL project, it appears to have been summarized in a confidential evaluation that was not shared with the Tribes or the public.

[The National Environmental Policy Act] requires the consideration of “reasonably foreseeable impacts” of the proposed action, but does not require consideration of “remote and speculative impacts.” In this instance, potential leaks and spills from the pipeline are “reasonably foreseeable.”

[The Pipeline and Hazardous Materials Safety Administration] tracks incidents of “significant pipeline incidents,” which is defined as those resulting in (1) fatality or injury requiring in-patient hospitalization; (2) $50,000 or more in total costs, measured in 1984 dollars; (3) highly volatile liquid releases of five barrels or more or other liquid releases of fifty barrels or more; or (4) liquid releases resulting in an unintentional fire or explosion.

Their data indicates that since 1996, there has been an average of over 283 such incidents per year, with total annual incidents trending upward since 2013. With hundreds of “significant” pipeline incidents per year, and with even comparatively “insignificant” spills still able to affect tribal treaty rights, it is difficult to assume that the risk of such incidents in the DAPL context would not be reasonably foreseeable.

* * *

The Standing Rock and Cheyenne River Sioux Reservations are the permanent and irreplaceable homelands for the Tribes. Their core identity and livelihood depend upon their relationship to the land and environment – unlike a resident of Bismarck, who could simply relocate if the DAPL pipeline fouled the municipal water supply, Tribal members do not have the luxury of moving away from an environmental disaster without also leaving their ancestral territory. This underscores the far-reaching effects of a DAPL spill’s potential environmental impacts on the Tribes’ historic, cultural, social, and economic interests.

* * *

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Here’s the full text of Tompkins’ memo on the Corps’ performance.