On December 4th, victory cries, prayers of thanks and yelps of jubilation rang out across North America when Standing Rock Sioux Chairman Dave Archambault II informed the crowd of water protectors and the media that the United State Army Corps of Engineers (USACE) announced it had denied the easement for the Dakota Access Pipeline to cross under the Missouri River at Lake Oahe, just north of the encampments at Standing Rock.
In July the USACE granted permission for the crossing of the Missouri River at Lake Oahe, but five months later Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy says she based her decision to deny the permit on a “need to explore alternate routes for the Dakota Access Pipeline crossing,” states Dave Foster, Army spokesman, Media Relations Division Office, chief of Public Affairs. Darcy explained that, although they have conducted continuing discussions and exchanges of new information with the Standing Rock Sioux and Dakota Access, “it’s clear that there’s more work to do.”
“More work” consists of exploring alternate routes for the pipeline crossing, which includes conducting an environmental impact statement to compare various route alternatives. “An EIS is a detailed analysis of identified impacts and alternative actions that could avoid or minimize the impacts,” Foster explains.
It comprises three phases: scoping, draft and final. Scoping identifies what should be studied in the EIS. After a draft is prepared, public comment is invited. Input is considered in preparation of the final version, which also allows for public comment. The process can take months or even years, depending on the project’s complexity.
An environmental assessment, not an EIS, was performed on the current route and “accompanied the Section 408 permission,” Foster points out. An assessment includes a preliminary analysis of potential environmental impacts.
The Standing Rock Sioux have said for months that the pipeline is illegal in part because the USACE did not solicit sufficient input from the tribe.
The USACE maintains that this new decision does not “alter the Army’s position that the Corps’ prior reviews and actions have comported with legal requirements.”
From cheering to sneering
Although this exploration of alternate routes may not change the pipeline’s course, not everyone is happy about the USACE’s decision. The pipeline’s owner, Energy Transfer Partners, and Sunoco Logistics Partners decry the announcement as a purely political action.
The partners immediately issued a statement indicating that they are “fully committed to ensuring that this vital project is brought to completion” and that they “fully expect to complete construction of the pipeline without any additional rerouting in and around Lake Oahe. Nothing this Administration has done today changes that in any way.”
The belief is that this is a delaying tactic until President Obama leaves office, but Foster says, “The U.S. Army will not speculate on any hypothetical situations.”
President-elect Trump has investments in ETP and has publicly supported oil pipelines. A transition spokesman said Trump will review the Dakota Access Pipeline when he takes office, giving ETP owner Kelcy Warren confidence that the pipeline will eventually proceed along this course.
Foster guardedly says, “The new Administration will have to decide how they want to proceed under relevant laws.”
Easing fears, Kennedy explains in a video that the USACE’s decision has now made it federal law to conduct an EIS and that it’s “something a president doesn’t have the power to overrule.”
He added, “It’s an important victory. It’s not a denial of the permit per se, but it is going to require what we’ve wanted to achieve from the beginning, which is to require that the pipeline company actually do a full environmental impact statement.” His hope is that as they go through the process, they will re-examine the issues associated with the current route and make adjustments.
For now, Foster expects work on the pipeline to cease, although there is concern in the Native community that ETP will continue drilling and pay the $50,000-per-day fine for operating without a permit.
The basis for their speculation stems from ETP’s contracts with oil shippers. The “take-or-pay” contracts, which obligate shippers to pay money to ETP whether they have oil to ship or not, are set to expire if the pipeline isn’t substantially completed by January 1, 2017.
Foster is less suspicious about illegal drilling under the river, stating, “Without an easement from the Army, construction must stop at the border of Corps property surrounding Lake Oahe. We hope they will work with us to expeditiously conduct this analysis and agree on a way forward.”
The Black Snake
The Dakota Access Pipeline, nicknamed the Black Snake by the water protectors, is an approximately 1,172-mile pipeline intended to connect the Bakken and Three Forks oil production areas in North Dakota to an existing crude oil terminal near Pakota, Illinois. The $3.8 billion pipeline is 30 inches in diameter and is projected to transport approximately 470,000 barrels of oil per day, with a capacity as high as 570,000 barrels.
Mostly complete, except for a segment planned to run under Lake Oahe, a reservoir formed by a dam on the Missouri River, the pipeline has been rerouted once, moving it away from the heavily populated capitol of Bismarck.
Members of the Standing Rock Sioux began protesting the proposed crossing of the Missouri River just north of their reservation eight months ago, out of concern that a leak would contaminate their primary source of water and in objection to desecration of sacred grounds. Calling themselves water protectors, they have been joined by other Indian nations, celebrities, environmentalists and, on Dec. 4, by veterans.
They have faced water and sound cannons, rubber bullets, lead-filled beanbags, explosive tear gas grenades and other chemical attacks from police forces sent by several nearby states.
Now they face harsh winter conditions. With snow already on the ground and a blizzard heading their way, Archambault urged the water protectors to go home.
But few are listening. Distrustful of government promises, the water protectors vow to stay until the pipeline is dead. Rerouting is not an acceptable compromise. Ladonna Brave Bull Allard told the Guardian
, “Until it’s dead, we stand. That doesn’t mean put it five miles up the river. That means kill it dead.”