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Friday, September 22, 2023

Construction suspended on part of North Dakota pipeline

The US government on Friday temporarily blocked construction on part of a North Dakota oil pipeline, an unusual intervention in a prairie battle that has drawn thousands of Native Americans and activists to camp and demonstrate.

Dakota Access pipeline protest in North Dakota. Photo Credit: "No Dakota Access in Treaty Territory - Camp of the Sacred Stones"
Dakota Access pipeline protest in North Dakota.
Photo Credit: “No Dakota Access in Treaty Territory – Camp of the Sacred Stones”

In announcing the pause, the government acknowledged complaints from the Standing Rock Sioux and other tribal nations that their concerns had not been fully heard before federal overseers approved a pipeline that the tribe said could damage their water supplies and ancestral cultural sites. The Justice Department and other agencies called for “serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”

The tribe in a statement called the federal order “a game changer.”

The government’s move, announced minutes after a federal judge rejected efforts by the Standing Rock Sioux to block construction of the project, appeared to seek to ease tensions and reset the terms of a passionate debate that has cast the 1,170-mile Dakota Access pipeline either as an economic boon for the Plains or a threat to Native American sovereignty, waters and lands. But perhaps more significantly, it appeared to signal a broader willingness to re-examine the involvement of the tribes in infrastructure decisions like this one.

The government said it would invite tribes to attend formal consultations about how they might work together on federal decisions on tribal lands and on whether future legislation is needed.

In recent days, protesters have clashed with the pipeline company’s contractors and private security guards, and officials in North Dakota have stepped up patrols and warned of rising tensions as ranchers, sheriff’s officers, tribal leaders and protesters waited for a ruling on the Standing Rock Sioux’s federal lawsuit to block construction on the pipeline.

In a joint statement from the Departments of Justice, the Interior and the Army, the government announced that the pause applied to the pipeline’s path across a sliver of federal lands and under a dammed section of the Missouri River known as Lake Oahe. The lake, created by government-built dams a half-century ago, is a water source for the Standing Rock Sioux and a focal point of the dispute.

The Army Corps of Engineers intends to review its previous decisions under federal environmental and other laws that had given approval for the pipeline. The government also urged the company building the pipeline to “voluntarily pause” all construction for 40 miles around Lake Oahe. The rest of the pipeline construction would not be affected.

Tribal leaders said they were heartened by the government’s move and relieved that, for the time being, the Dakota Access pipeline would not be allowed to cross under their water supply. “When there’s a wrong that keeps continuing to happen, it’s O.K. to stand up against that wrong. That’s all we did,” said David Archambault II, the chairman of the Standing Rock Sioux. “I’m just so thankful that agencies are starting to listen.”

For supporters and opponents of the pipeline, it was a day of high-tension whiplash.

The tribe had been bracing for a defeat in the courtroom. But the government’s intervention surprised so many that the tribe and its supporters sent out news releases condemning the ruling as soon as it was handed down, and sharply reversed course once they realized that the government-ordered pause had scrambled the situation here.

Craig Stevens, a spokesman for the MAIN Coalition, a pro-infrastructure group supporting the pipeline, hailed the judge’s decision, but said the government’s move was “deeply troubling and could have a long-lasting chilling effect on private infrastructure development in the United States.”

“Should the administration ultimately stop this construction, it would set a horrific precedent,” Mr. Stevens said in the statement. “No sane American company would dare expend years of effort and billions of dollars weaving through an onerous regulatory process receiving all necessary permits and agreements, only to be faced with additional regulatory impediments and be shut down halfway through completion of its project.”

Activist Howard Ehrman said: “This important victory only happened because of the unity, strength and solidarity of Native Americans in lifting up the rights of Mother Earth including the sacredness of water and taking direct action.”

The company behind the pipeline, Energy Transfer Partners, did not respond to a request for comment.

It was unclear whether the company would heed the government’s request to pause construction 20 miles to the east and west of Lake Oahe. After protests swelled recently and flared into violence last Saturday, construction work was halted near the site of the protest camp and the fields about a mile up the road where the pipeline is set to be buried.

The company has previously said it has complied with every state and federal rule and gotten all the necessary permits to build the $3.7 billion pipeline. It has said the Dakota Access pipeline would create jobs, pump millions into local economies and provide a reliable way to transport oil from western North Dakota to pipeline networks in Illinois that was safer than hauling oil on trucks or trains.

In his ruling, Judge James E. Boasberg of Federal District Court in Washington focused on efforts by the Army Corps to meet with the Standing Rock Sioux and others to work through possible issues with the pipeline, since “the Corps appears to have had little involvement in Dakota Access’s early planning,” the judge wrote, but “The writing was on the wall, however, that many DAPL permitting requests would eventually land in the Corps inbox.”

The judge described a series of attempted meetings and missed communications between government and tribal officials; the judge suggested that the lack of cooperation was mostly on the part of the tribe, while “the Corps has documented dozens of attempts it made to consult with the Standing Rock Sioux from the fall of 2014 through the spring of 2016” on the pipeline plan.

Two days after the Corps approved what are known as preconstruction notifications on the pipeline, the tribes filed suit demanding that the permits be withdrawn.

The judge said the efforts to obtain cooperation from the Standing Rock tribe were exhaustive, with dozens of attempts documented by the Corps to bring them to the table for discussion of Lake Oahe and other points of water crossings. The judge then wryly added: “To the reader’s relief, the Court need not repeat them here. Suffice it to say that the Tribe largely refused to engage in consultations.”

The meetings that the Corps was able to arrange, he wrote, “sufficed” under the law.

“Today’s news is a stunning development,” said Jan Hasselman, a lawyer with Earthjustice, an environmental legal group that is representing the Standing Rock Sioux. “It vindicates what the tribe has been saying form the beginning: The process was wrong, and the legal standards for projects like these need reform.”

It was unclear on Friday how long the government-ordered pause in construction around Lake Oahe might last, or whether the move had given the Standing Rock Sioux any greater odds of prevailing. But on Friday morning, tribal members said they had lived on the land for generation upon generation, and were prepared to stay through the fall, the winter and beyond.

“They’ll be here for years,” said Jana Gipp, a member of the Standing Rock Sioux, as she surveyed the camp’s tents and teepees from a grassy bluff. “They won’t give this up.”

By Jack Healy and John Schwartz (The New York Times)


Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers

The Department of Justice, the Department of the Army and the Department of the Interior issued the following statement regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers:

“We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act.  However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain.  Therefore, the Department of the Army, the Department of Justice, and the Department of the Interior will take the following steps.

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

“Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

“Finally, we fully support the rights of all Americans to assemble and speak freely.  We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence.  Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities.  The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety. 

“In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”

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