Blog #2: View of the Federal Government

The involvement of the Federal Government in this case stems from the proposed location of

the Dakota Access Pipeline (DAPL), which crosses federally owned land under management

of the Army Corps of Engineers (“Corps”). When the Corps received applications from ETP

asking for the right to construct the pipeline on federal property, several sets of federal

procedures were initiated at once. First of all, the Corps began gathering evidence and

preparing a draft environmental assessment (EA). Environmental assessments are

governmental reports prepared by the Corps which essentially evaluate the consequences

(positive or negative) that a proposed project could reasonably be expected to have on its

surroundings. This judgement is then in used to determine if the project would satisfy federal

requirements under the National Environmental Policy Act (NEPA). NEPA is a federal law

that was enacted in 1970 with the aim of promoting the enhancement of environmental

conditions.

Source: https://healingmnstories.wordpress.com/2016/11/04/no-dapl-updates-religious-communities-respond-a-history-of-pipeline-spills-map-of-rejected-dapl-route-and-more/

Running concurrently to this effort, the Corps undertook the process of

determining if an easement should be granted to ETP under the Rivers and Harbors Act of

1899. According to this law, any project proposal which plans to crosse federal waterways

must be granted permission by the Corps. As such, the Corps had to evaluate the expected

impact of the pipeline and then decide whether or not to grant the easement, which would

allow ETP to build the pipeline under the federal waterways of the Missouri River. And

finally, the Corps had to initiate the process of determining whether or not the project required

a federal review under Section 106 of the National Historic Preservation Act (NHPA).

The NHPA is a piece of legislation which was passed in 1966 with the intention of protecting

historic and archaeological sites from any damaging activity. One way in particular that the

NHPA sought to do this was by establishing a federally recognized list of places that were

deemed worthy of special protections due to their historic value. This list was called the

National Register of Historic Places, or National Register for short, and it became a crucial

tool in the set of legal procedures known as the Section 106 Review. Section 106 of the NHPA

is perhaps the single most important legislative tool for protecting one’s cultural and

environmental rights, and it revolves around the National Register. Basically, if a site is

recognized under the National Register (either as eligible or potentially eligible), then the

relevant government agency (in this case, the Corps) must seek ways to avoid, minimize, or

mitigate any adverse effects. As a result these regulations then, the Corps was required to

consult with interested parties and evaluate the proposed site where DAPL would cross the

Missouri River in order to determine if it should be recognized under the National Register.

Source: https://theleapblog.org/black-snake-bleeding-out-how-dapl-is-duping-investors/

As the Corps made its way through the various federal regulations required of it by the

proposal to construct the Dakota Access Pipeline, it’s first conclusion was that there was no

need to pursue the NHPA Section 106 review process any further. After consultation with the

Standing Rock Sioux Tribe (SRST), the Corps established that the construction of the pipeline

did not pose any significant threat to the cultural heritage and/or property of the tribe. This

was a controversial decision however, and numerous tribal members and representatives

protested the findings. They insisted that neither the Corps, nor ETP could not reasonably

promise them that the pipeline wouldn’t pose a significant threat to their cultural heritage

and/or property given the companies history with oil leaks. The EA was released shortly

thereafter, and following a similar line of reasoning, it indicated that after making a good faith

effort to consult with the relevant SRST representatives, the Corps had determined that the

proposed construction of the pipeline would not interfere with pre-existing federal projects,

nor would it be considered injurious to the public interest. This was another important blow to

the SRST’s effort to protect their water because it relieved the Corps of an further

responsibility under Section 408 of the Rivers and Harbors Act of 1899. And finally, the EA

confirmed that granting an easement under Section 408 for the above reasoning, would not

constitute a “major federal action” that would “significantly affect the quality of the human

environment”. The implications of this decision are pretty significant too-- essentially it

marked the end of the Corps’ obligations under federal law by  indicating that no further

environmental evaluation was necessary under NEPA. At this point, the Corps was completely

finished with its job, having satisfying the federal requirements under NEPA, NHPA, and

Section 408 of the Rivers and Harbors Act of 1899.

Source: http://www.storybench.org/contextualizing-dakota-access-pipeline-roundup-visualizations/