Dakota Access Pipeline shutdown order

YATES, N. D.— Tribal leaders and constituents across Lakota Territory and elsewhere welcomed a hard-won court order on July 6 to shut off the oil flow in the Dakota Access Pipeline (DAPL) within 30 days.

“Today is a historic day for the Standing Rock Sioux Tribe and the many people who have supported us in the fight against the pipeline,” said Mike Faith, chair of the tribe headquartered at Ft. Yates. “This pipeline should have never been built here. We told them that from the beginning.”

His tribe, followed by the Cheyenne River, Yankton, and Oglala Sioux tribes, sued the U.S. Army Corps of Engineers for breaking federal laws and glossing over the devastating consequences of a potential oil spill in the Missouri River’s Oahe Reservoir when permitting the pipeline crossing upstream from drinking water supply intakes here in 2016.

Chair Harold Frazier of the Cheyenne River Sioux Tribe, applauded the decision of U.S. District of Columbia Judge James Boasberg “in finding what we knew all along, that this pipeline, like many other actions taken by the U.S. government, is in fact illegally operating.”

Frazier recalled the world-renowned 2016-2017 mass mobilization against the pipeline in which grassroots resisters and leaders of all Seven Council Fires of the Great Sioux Nation, or Oceti Sakowin, established camps at Standing Rock to support of the tribal governments’ lawsuits.

“It has been six years since the Dakota Access Pipeline began slithering a path through our treaty territory,” he said. “In 2016 water protectors stood up to the dangers that have threatened this land of which we are all a part. Today, the U.S. District Court ordered that the snake of oil moving through our territory cease….”

The Great Plains Tribal Chairmen’s Association (GPTCA), the Native American Rights Fund (NARF), and the National Congress of American Indians Fund (NCAI Fund) stressed, “The decision ensures that the treaty-reserved rights of the plaintiff tribes – the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, the Yankton Sioux Tribe, and the Oglala Sioux Tribe – are adequately addressed, along with any other land and natural resource considerations, in a full-fledged and well-documented environmental review process.

GPTCA, NARF, and NCAI Fund, which took part in submitting an amicus brief in the latest proceedings in the case, said they are “encouraged by this outcome,” adding, “We hope that this decision helps pave the way for full and proper environmental impact studies as well as meaningful consultation with tribal nations that have direct or indirect stewardship over the lands under review.

“Our organizations will continue to work to ensure that every time tribal lands and resources are at stake, the environmental review processes meet all legal standards and respect the federal government’s trust obligations to tribes set forth in federal laws,” they said.

Boasberg ordered the shutdown to last at least until a proper consultation with tribes and an environmental impact statement with public participation are completed, as required by the National Environmental Protection Act, NEPA. The process has an estimated duration of at least three years.

That means “It may be up to a new administration to make final permitting decisions,” said Earthjustice, a law firm that represented plaintiffs.

Boasberg ordered the Corps to re-examine the risks of the pipeline and prepare a full environmental impact statement on March 25 but left open the question of stopping the flow until now.

“Fearing severe environmental consequences, American Indian tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake,” the judge said. “Today they finally achieve that goal — at least for the time being.”

Dakota Access LLC, representing pipeline parent company Energy Transfer Partners, intervened on the side of the Corps of Engineers, arguing a shutdown would “pose an existential threat to DAPL” due to “massive” revenue loss. It said DAPL could lose as much as $643 million in the second half of 2020 and $1.4 billion in 2021 if the oil flow is halted.

“There is no viable pipeline alternative for transporting the 570,000 barrels of Bakken crude that DAPL is capable of carrying each day,” and railroads do not have the capacity “to fill the breach,” Dakota Access LLC states.

The company was in the process of applying for a permit to double the volume permitted on the line when the court order came down.

The court “does not take lightly the serious effects that a DAPL shutdown could have for many states, companies, and workers,” it states. “Losing jobs and revenue, particularly in a highly uncertain economic environment, is no small burden. Ultimately, however, these effects do not tip the scales,” it says.

“When it comes to NEPA, it is better to ask for permission than forgiveness,” in Boasberg’s opinion, which notes: “If you can build first and consider environmental consequences later, NEPA’s action-forcing purpose loses its bite.”

The ruling adds that Dakota Access LLC arguments strictly emphasize “its own interests and those of the industry,” with no evidence the public would be harmed. “The seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow,” Boasberg concluded.

Chair Frazier responded, “The fact that this operation had been operating illegally for three years before this conclusion was finally made shows you the power that money holds on the American government.

“It is time to put people before profit and seriously consider the impact of not only this project but the harm that this project brings to our land and planet.”

Frazier recognized the importance of grassroots support that thousands of people gave the tribal government lawsuits. “It is with extreme gratitude that I acknowledge the work, sacrifice and perseverance of every water protector involved in this fight,” he said.

“We must never give up in our struggles and need to follow the examples that our past naca (chiefs) and leaders have given us. We need to unite and continue to protect our way of life for the future of our people.”

Concluding a written statement datelined at his Eagle Butte headquarters, the chairman signed off with the Lakota rallying cry carried since the standoff at Standing Rock: “Mni wiconi! (Water is life!)”

Cheyenne River Sioux tribal member Joye Brown, an organizer for Indigenous Environmental Network who was among the first resistance supporters at the camps inaugurated on April 1, 1916, rejoiced with the same rallying cry.

“This is your win, water protectors!” she said. “I couldn’t be any more proud of every single one of you!” She counseled to “Enjoy the win!” and warned that other pipelines, such as the proposed Keystone XL Pipeline, will be shut down, too.

 

(Contact Talli Nauman at talli.nauman@gmail.com)

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