Fort Yates, ND — An environmental review of the Dakota Access Pipeline conducted by a consulting firm connected to the pipeline is raising concerns. More than two years after the owner of the Dakota Access Pipeline (DAPL) was court ordered to conduct a new environmental review, contending sides have recently released statements on its draft findings. The Standing Rock Sioux Tribe contests the draft, noting that it was conducted by a biased entity and member of the National Petroleum Institute, the largest U.S. trade association for the oil and natural gas industry.
In 2016, the Standing Rock Sioux Tribe (SRST) challenged the pipeline project in Standing Rock Sioux Tribe, Et Al. v. United States Army Corps of Engineers, Dakota Access LLC, saying that the Corps violated the National Environmental Policy Act (NEPA) by issuing an easement for the project to cross the Missouri River without preparing an Environmental Impact Statement (EIS).
Nearly three years after oil started to flow through DAPL, the U.S. District Court for the District of Columbia ordered the Corps on March 25, 2020 to prepare an Environmental Impact Statement (EIS) for the portion of the pipeline that crosses under the Missouri River at Lake Oahe — north of the Tribe’s reservation — because the pipeline’s “effects on the quality of the human environment are likely to be highly controversial.”
In January 2021, the U.S. Court of Appeals for the District of Columbia Circuit also sided with the District Court, mandating that Dakota Access LLC, DAPL owner and operator, conduct a new review of the portion that crosses under Lake Oahe.
After more than two years, the U.S. Army Corps of Engineers (Corps) issued a draft EIS on September 8, 2023 which is contested by the SRST for several reasons, including that the Corps tasked Environmental Resources Management (ERM) with preparing the EIS.
The Tribe says that the ERM is a member of the National Petroleum Institute and had previously submitted a brief in favor of DAPL, and against SRST. “The Tribe sees this as a clear conflict of interest,” said the Tribe.
“We’re furious that the Army Corps has addressed none of our major concerns during the review process,” said SRST Chairwoman Janet Alkire in a press release on Sept. 8. They said DAPL “presents a clear and enduring threat to delicate ecosystems and Standing Rock’s primary source of freshwater.”
SRST issued communications inviting the public to submit comments to the Corps regarding the draft EIS, and then had a 45-day period to do so. The deadline was extended to Dec. 13.
A large number of comments were submitted electronically supporting SRST’s call for a thorough EIS and can be found at the U.S. Army Corps of Engineers Digital Library. A majority of the comments voiced support of SRST, including advocating to respect their treaty rights and their safety. “The Dakota Access Pipeline tramples on the rights of Native Americans by putting corporate interests above Tribal treaty rights and clean water,” many of the comments state.
In U.S. Circuit Court Judge David S. Tatel’s 2021 disposition, he wrote in favor of the tribe and said in regards to the easement: “We agree with the district court that the Corps acted unlawfully…” The Court stated that the pipeline could not traverse federally owned land at the Oahe crossing without an easement from the Corps. Because it did so, it violated the NEPA. So far there hasn’t been a decision on what should be done in response to the violation.
Related: Supreme Court Declines Appeal in Dakota Access Pipeline Case [Feb. 2022]
The Tribe wants the pipeline shut down and wants the Corps to start the EIS process from the beginning, and to use an unbiased entity to conduct the environmental review.
During construction of DAPL, which started in August 2016 and continued through early 2017, tens of thousands of people traveled to the Standing Rock Indian Reservation in North Dakota to support the Tribe’s opposition to the pipeline. The pipeline was built through the Tribe’s unceded treaty lands — lands they did not give up willingly — and less than a half mile upstream from the northern exterior boundary of the Standing Rock Indian Reservation and under the Missouri River.
When encampments grew to hundreds and sometimes thousands of people, local law enforcement, led largely by the Morton County Sheriff’s Office, targeted and arrested hundreds of people for demonstrating against the building of the pipeline. Morton County had official support from dozens of other law enforcement agencies throughout the country including agencies from surrounding states. North Dakota spent upwards of $40 million in law enforcement costs during the protests, with some costs reimbursed by the Dakota Access Pipeline LLC, but other costs have been allocated from legislation in North Dakota.
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When the easement was halted in 2016, SRST issued a statement saying on Dec. 4, 2016, “The Standing Rock Sioux Tribe and all of Indian Country will be forever grateful to the Obama Administration for this historic decision.” However, the pipeline was completed in April 2017, with oil being delivered through just months later.
North Dakota Governor Burgum issued a statement in opposition to the SRST, saying that a call for a new EIS would likely shut down the pipeline, an act that would allow “…the Biden administration to continue its war on American energy…” and further harm the environment.
Dakota Access LLC has continually tried to expand operations of the pipeline, but have faced challenges from various entities on the pipeline’s route, citing a review of the company’s safety record. SRST said the draft EIS had been routinely delayed, and DAPL continues to operate illegally without a valid federal easement to cross the river.
“The pipeline is an imminent threat to the Missouri River, sensitive habitat and sacred burial sites along the riverbank. The oil company’s emergency response plans are inadequate, its safety track record is horrendous, and there’s been a stunning lack of transparency with Standing Rock throughout the environmental review process, including inaccurate characterizations of tribal consultation.”Standing Rock Sioux Tribe statement
The draft EIS is the second step in the NEPA environmental review process and will be followed by a final EIS that must take into account the public comments received during the comment period that ended last Wednesday.
About the author: Darren Thompson is an enrolled citizen of the Lac du Flambeau Band of Lake Superior Chippewa Indians in Wisconsin, where he grew up. His reporting on Indian Country has been published in USA Today, Indian Country Today, Unicorn Riot, the New York Times, Voice of America, the AARP, and many others. He can be reached at his website, www.darrenthompson.net.