For years, the Keystone seemed inevitable. So when Obama finally decided to squash plans to extend the pipeline in 2012, it was a major victory for environmentalists everywhere. Unfortunately, pipeliners learned from their mistakes and have stepped up their game. No more press announcements or scissor-cutting ceremonies—plans need to be discrete and executed in small, disjointed increments.
The Dakota Access Pipeline
Ever heard of it? The pipeline is going to be huge—1,168 miles long, which is only 7 miles short of what was planned for the Keystone XL. It is being developed by Dakota Access LLC and Energy Transfer Crude Oil Co LLC, both based out of Texas. The best part: construction is supposed to begin ASAP.
On July 25, the Army Corps of Engineers issued permits authorizing the construction of segments of the pipeline in US waters, one of which is under Lake Oahe. The lake is a reservoir behind the Oahe Dam on the Missouri River; it is approx. ½ mile upstream from the Standing Rock Sioux Tribe’s reservation.
Although the pipeline will not cross Standing Rock's land, the tribe claims that the pipeline’s route passes through the tribe’s ancestral lands and other areas of great cultural and spiritual significance. To the Standing Rock, the Missouri River and Lake Oahe are sacred. . . and legally owned by the tribe.
The tribe’s reservation is located in a small section of North and South Dakota, but the original boundaries as defined in the 1851 & 1868 Fort Laramie Treaties were much larger. After the treaties, however, the Black Hills were seized by the US and a series of statutes were passed that further parceled the land. In 1980, however, the Supreme Court held that the lands had been illegally seized from the tribe and ordered the payment of just compensation. The Sioux refused to accept the money, though, because they did not want to relinquish their claim to the land.
The map on the left was the tribe's land following the Laramie Treaty. The map on the right is what's left today.
Standing Rock Sioux Tribe Seeks Judicial Intervention
Two days after the Army Corps approved construction of the pipeline the tribe filed suit in federal court for declaratory and injunctive relief. In the complaint, the tribe expresses concern over the location of the pipeline and claims that the Army Corps failed to adhere to specific regulatory processes when it issued permits to Dakota Access.
If a pipeline is going to pass through federally recognized waters, the plans must comply with the Clean Water Act and National Rivers and Harbors Act to be granted approval. Both Acts contain a myriad of environmental and procedural requirements, but most relevant to the Sioux are those that trigger certain requirements under the National Historic Preservation Act. When construction activities affect sites of historical significance, the pipeline proponent has to provide certain notices and complete cultural surveys of the area before the plans can be approved.
For the DAPL, Dakota Access hired non-tribal consultants to complete the surveys, all of whom apparently gave the green light even though no one bothered to question tribe members. To its dismay, the tribe was essentially excluded from the determination process and has only been provided with copies of partial surveys.
On top of that, the tribe also claims that instead of submitting the entire plan, Dakota Access has been submitting applications for small, scattered sections of the pipeline, which the Army Corps is approving despite the company’s failure to follow specific regulatory requirements. Dakota plans to begin construction in these segments immediately, even though they have yet to acquire/obtain approval for other, larger sections of the line. Clearly they have no reason to believe the rest of it won’t go as planned.
UPDATE: Dakota Access has agreed to halt construction until next week's court hearing.
Additional Information on the Dakota Access Pipeline:
My work as an attorney is focused primarily on environmental pollution and mass tort litigation. If interested, check out my posts discussing PFOA and Lead.
note: this post is for informational purposes only and is not intended to be legal advice or create an attorney-client relationship.