Blog #3: The Legal Battle

Shortly after the first DAPL route was proposed, and before Energy Transfer Partners (ETP)

had even applied for permits from the Army Corps of Engineers (“Corps”), the Standing Rock

Sioux Tribe (SRST) were voicing their objections and conveying their concerns directly to

both parties. Over the course of the permitting process, SRST attempted to reach out and

communicate their stance on numerous occasions, both in meetings and in letters. Despite

these consistent objections, ETP went right ahead with their proposal, resulting in the release

of a draft environmental assessment (EA) in December 2015. According to the SRST, the

draft EA was deeply flawed, for it contained no mention of the potential impacts on

subsistence hunting, fishing, and gathering in the Lake Oahe area, nor did it provide an

assessment of the risk of oil spills. In fact, the EA failed to mention the existence of the SRST

at all, and did not include the reservation on maps of the site, even though it was only half a

mile downstream and would bear the full brunt of any subsequent oil spill. The SRST

responded by submitting several lengthy documents to the Corps, detailing their concerns

with the EA and urging the Corps to consider alternative routes for the pipeline and to initiate

an Environmental Impact Statement (EIS). An EIS is yet another government report which

considers the environmental impacts of a proposal and is then used as a tool for deciding how

best to address any negative impacts. Once again, ETP paid little attention to the objections

raised by the SRST, and began construction of the pipeline outside of Corps jurisdiction in

May 2016. To make matters worse for the SRST, the final EA was released the following

month along with a finding of no significant impact (FONSI). A FONSI is issued at the

conclusion of an EA if the government agency in charge of the assessment determines that the

proposed action does not constitute a “likely significant impact”. In essence, the Corps stated

that the SRST and their cultural properties were not legitimately threatened by the

construction of the pipeline.

Immediately after the release of the EA, SRST filed a lawsuit against the Corps seeking a

preliminary injunction on the pipeline’s construction. That is, they sought to have the Federal

Government put a halt to the pipeline’s construction until the lawsuit between the SRST and

the Corps was resolved. The tribe claimed that the agency had used a fundamentally flawed

EA as a justification for not conducting any further assessment of the pipeline’s potential

environmental impacts. Therefore, the SRST posited, the Corps had failed to adequately

ensure the preservation of the tribe's cultural heritage as required under NEPA. Basically, the

crux of the issue here is that the SRST challenged the Corps’ findings, which were published

in the EA, and tried to make the case that further evaluation should be mandated under NEPA

because the original EA was deeply flawed.

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

The motion for a preliminary injunction was denied in September 2016, but on the same day

the district court made its ruling, the Departments of Justice, the Army, and the Interior jointly

announced that they would be withholding permits from ETP temporarily while the Army

looks into issues raised by the SRST. The decision to allow continuing construction on the

pipeline, even as three separate Federal Agencies ruled that they would withhold permits,

seems peculiar and rather short-sighted. After all, why would you go ahead and move the

construction ever-closer to a site which may not even be a suitable location for the river

crossing? Regardless, everything hung in the balance as the Federal Agencies worked towards

a final decision as to whether or not ETP should be granted federal permits.

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

The legal battle was in something of a stalemate until January 24, 2018, when President

Trump signed an executive order which put the case back in motion, and moving towards an

easement for ETP. Despite the warnings of several congress members not to approve the

easement, Trump backed the easement and on February 8, 2008, DAPL was finally permitted

to go underneath Lake Oahe. However, a mere two month later, before construction on the

pipeline was even completed, a leak was reported in Spink County, highlighting the urgency

of the message which the SRST have fought so hard to get out. And to some extent….its

working. Just last June, a federal judge found that the Corps had made several clear errors in

performing environmental review procedures for the easement of DAPL. While this ruling

may not lead to an entirely new EA or EIA, it does require that the Corps reexamine parts of

its environmental review process, specifically considering the degree to which the project’s

consequences are likely to be controversial. Although the SRST have endured a long and

often painful battle for their sovereignty and cultural freedom, the situation is not all grim. At

least while the legal battle continues to rage on, it gives some hope that the cultural and

environmental concerns of the SRST will be heard and acknowledged eventually.

Source: http://earthunfiltered.com/2017/02/there-is-still-not-enough-media-coverage-over-the-dapl/