June 14, 2017; Indian Country Today
U.S. District Court Judge James Boasberg ruled that the U.S. Army Corps of Engineers (USACOE) acted illegally when they complied with President Trump’s directive to fast track approval of the Dakota Access Pipeline (DAPL) earlier this year. The decision is the result of the third attempt by the Standing Rock Sioux tribe and the legal nonprofit Earthjustice to halt construction and use of the pipeline in federal court.
The first claimed that USACOE “had flouted its duty to engage in tribal consultations pursuant to the National Historic Preservation Act.” The second “maintained that the presence of oil in the pipeline under Lake Oahe would desecrate sacred waters…thus violating the Religious Freedom Restoration Act.”
On the third attempt, the Court found that “although the Corps substantially complied with NEPA [the National Environmental Protection Act] in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”
NPQ has followed the development of the DAPL controversy closely over the past few months. The protest, which attracted activists from all over the country to camp on site in North Dakota, inspired other tribes across the U.S. to resist encroachment on their land by oil companies.
The concern of the Standing Rock Sioux, that the pipe will leak and damage or destroy both drinking water and sacred sites, is very real and potentially disastrous. A pipeline 200 miles from Standing Rock has already leaked a few times this year, but it barely made the news because other, larger spills have made the smaller ones less newsworthy. The ecological impact of oil spills can be devastating.
DAPL was originally rerouted from a site near Bismarck because of concerns that leaks would poison Bismarck’s drinking water, so the impact of the project does not appear to be the issue, but whom it is okay to impact.
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David Archambault II, chairman of the Standing Rock Sioux, told ABC News, “We live with so many broken promises, there’s no reason for it.” The treaty that the Standing Rock Sioux signed with the U.S. in 1868 states that their land is
set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them; and the United States now solemnly agrees that no persons except those herein designated and authorized so to do…shall ever be permitted to pass over, settle upon, or reside in the territory.
A statement from Archambault about the Wednesday’s decision said, “This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing… We applaud the courts for protecting our laws and regulations from undue political influence and will ask the Court to shut down pipeline operations immediately.”
Energy Transfer Partners, the owner of the pipeline, is not obligated at this time to cease pipeline operations. The judge stipulated in his decision, “To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.”
Lisa Dillinger, a spokeswoman for Energy Transfer Partners, told Vice reporter Cole Kazdin that “It is important to note that while Judge Boasberg asked the Corps to provide greater substantiation for its conclusions, the Court did not find the prior determinations to be erroneous…pipeline operations can and will continue as this limited remand process unfolds.”
Jan Hasselman, an attorney with Earthjustice, pointed out the law doesn’t require projects to choose the most environmentally protective option and that “this may be a first-of-its-kind decision, overturning NEPA analysis for environmental justice reasons.”
The decision this week doesn’t immediately cease DAPL operations, but it does give hope to environmental and Native American rights activists who have persisted in their fight despite the directive from President Trump earlier this year. We will watch and wait to see whether “further briefing” will lead to an EIS and a halt to pipeline operations. Momentum may need to build again around DAPL and the protection of Native American rights.—Erin Rubin