Dakota Access Pipeline Victory May Only Be Temporary

Dakota Access Pipeline
Oil Pipeline Construction (Wikipedia)

Protestors trying to stop construction of the Dakota Access Pipeline (DAPL) near the Standing Rock Indian Reservation in North Dakota were victorious on December 4, 2016, when the U.S. Army Corp of Engineers refused to permit the pipeline to carry dirty Canadian tar sands oil beneath Lake Oahe.  The U.S. State Department had previously approved the pipeline with a controversial determination that it wouldn’t substantially increase greenhouse gas emissions.

The protests against the DAPL began in April when members of the Standing Rock Sioux tribe established the Sacred Stone Camp to accommodate pipeline protestors near the mouth of the Cannonball River, where it empties into the lake. The primary objective of the protestors was to protect the lake from oil spills because it’s the source of the tribe’s water supply.

They used the slogan, “Water is Life.” But their protest soon grew into much more, and became a worldwide focal point for indigenous rights and climate change activists. Thousands of people joined the camp, including representatives from hundreds of tribes, making it the largest gathering of Native Americans in more than a century. About 2,000 veterans of the U.S. military also traveled to the camp intent on forming a human shield to protect the protestors from police attacks.

The National Environmental Policy Act (NEPA)

The Corp of Engineers explained they were denying a pipeline easement beneath the lake so they could conduct a full-blown environmental impact statement (EIS) in which alternative routes would be explored. An EIS is the most rigorous type of environmental study mandated by the National Environmental Policy Act (NEPA), which was signed into law by Republican President Richard Nixon in 1970. NEPA requires federal agencies to complete environmental studies of all their projects, using a public participation process that analyzes the environmental effects of various alternatives.

The Corp of Engineers has a say in whether a pipeline can be permitted beneath Lake Oahe because it has jurisdiction over public waterways and the lake is a reservoir on the Missouri River. The Corp had already completed an environmental assessment (EA) for the DAPL, a less rigorous type of NEPA study that’s typically used for projects with fewer significant issues. But the Environmental Protection Agency (EPA), the Department of the Interior, and the Advisory Council on Historic Preservation considered an EA to be inadequate for this project, and asked the Corp to complete an EIS.

The incoming Trump administration, however, will probably try to make the Corp reverse their decision to conduct an EIS, or even worse, work with the Republican-controlled Congress to revoke or eviscerate NEPA. This would have serious consequences on U.S. public lands administered under the multiple use doctrine by the Forest Service and Bureau of Land Management (BLM). The Forest Service, an agency within the U.S. Department of Agriculture, manages the nation’s 154 national forests and 20 national grasslands – comprising about 193 million acres. The BLM, an agency of the U.S. Department of the Interior, manages about 30 million acres, including 221 wilderness areas and 23 national monuments. NEPA is the primary mechanism by which Americans participate in the management of these lands because it requires federal land management agencies to conduct publicly reviewed environmental studies for their plans and projects. Without NEPA, the public would have little or no effective input on proposed mining operations, drilling operations, timber cuts, recreational activities, or livestock grazing schemes.

The scope of the potential danger is best illustrated by taking a closer look at the situation in regards to livestock grazing on public lands. The BLM administers more than 21,000 public lands grazing allotments, while the Forest Service has almost 6,000 grazing permittees. Public lands grazing is, by far, the most ubiquitous use of U.S. public lands, occurring on more than 200 million acres, mostly in the West. Subsequently, it’s also the commercial activity that inflicts the most widespread ecological damage on public lands. Even with NEPA, the public typically gets to review and comment on a grazing operation just once every 10 years – the term of a federal grazing permit. Without NEPA, even that modest opportunity would be gone.

But death of NEPA as we know it would do more than threaten the ecological health of hundreds of millions of acres of public lands. As mentioned above, a NEPA study must also be conducted when a proposed project might adversely affect a public waterway, even when the project is located on private land.

These are just some of the examples of the importance of the National Environmental Policy Act. It’s often been referred to as the environmental Magna Carta because its stated purpose is to “encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation.” If the Trump administration and the Republican Congress are allowed to neutralize NEPA, the U.S. will have crossed over an ideological threshold to a dark domain where the only thing that really matters is money.

Update

In January of 2017 newly elected President Donald Trump issued an executive order to make the U.S. Army Corp of Engineers reverse their decision under the Obama administration to complete a full-blown environmental impact statement (EIS) of alternative routes for the DAPL, and then had them issue a permit to allow the pipeline to be drilled beneath Lake Oahe.

On June 14, 2017, federal judge James Boasberg ruled that the Corp of Engineers was, indeed, required to complete an EIS for the DAPL on the Standing Rock reservation. The pipeline, however, had already been built and the judge didn’t order it to be shut down while the EIS is completed.

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