Can we count on the courts to stop DAPL?

July 25, 2017

Brian Ward reports on a legal victory against the Dakota Access Pipeline--and asks what it will take to halt the flow of oil and safeguard Indigenous rights once and for all.

A LEGAL ruling against the Dakota Access Pipeline (DAPL) last month is a victory for environmental activists and the Standing Rock Sioux Tribe--and a blow to the Trump administration's plans to let the oil flow. But it will take a much bigger struggle beyond the courts to finally stop Trump and the oil industry from pushing ahead with their pipeline.

One of Trump's first acts as president was issuing a memorandum to force through construction of DAPL over protests by members of the Standing Rock Sioux Tribe, who fear that the pipeline, which is routed under the Missouri River, would pollute drinking water and destroy sacred lands.

Trump's action wasn't a surprise. After all, Kelcy Warren, the CEO of Energy Transfer Partners, the operators of DAPL, gave $100,000 to the Trump campaign--and Trump had investments in DAPL until early December.

Trump's order came after months of sustained resistance at Standing Rock. Thousands of Indigenous and non-Indigenous people came to the protest camps established near the DAPL construction site and stood up against pipeline. In December, with the Obama administration still in command, the U.S. Army Corps of Engineers reversed course and halted the pipeline.

Marching in solidarity with Standing Rock in Washington, D.C.
Marching in solidarity with Standing Rock in Washington, D.C. (Leonard Klein | SW)

But the new Trump administration has put the fossil fuel industry back in undisputed control of U.S. energy policy. The camps were dismantled, and Energy Transfer Partners was able to construct enough of the pipeline that oil began flowing.

ON JUNE 14, however, a federal judge ruled that the Trump administration failed to follow proper environmental procedures when it rammed through approval of DAPL.

Judge James Boasberg ruled that the U.S. Army Corps of Engineers "largely complied with the National Environmental Policy Act," but added that the Corps "did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline's effects are likely to be highly controversial."

In siding with the Standing Rock Sioux Tribe, Boasberg said that the environmental impact study--required under the National Environmental Policy Act for federal permits--was insufficient, as it only looked at the impact of pipeline pollution inside of a half-mile buffer area.

Boasberg didn't overturn the permit granted to Energy Transfer Partners, however--which is somewhat unusual when a decision like this is made. As NPR pointed out, the judge's own order notes "that the standard remedy in this situation would be to vacate the pipeline's permits and easement, thereby halting pipeline operations until the Army Corps is in compliance with environmental procedures."

However, Boasberg wrote, "[s]uch a move, of course, would carry serious consequences that a court should not lightly impose." Instead, he ordered further briefs and hearings on the subject. In other words, the judge didn't halt pipeline operations, but he opened the door to that possibility down the road.

In mid-July, the Army Corps filed documents asking the judge to let oil continue to flow while further environmental studies are carried out through December. Corps officails suggested that since the oil now flowing through DAPL would have to be transported by other methods that also carry environmental risks, the pipeline should remain operational.

Energy Transfer Partners claims that a shutdown would cost the company $90 million each month. They clearly want the courts to view their bottom line as more important than the potential environmental impact of the pipeline.

The pipeline extends more than 1,000 miles from the Bakken oil fields in North Dakota to Illinois.

The Oceti Sakowin camp was located at Lake Oahe on the Missouri River. Adopting the slogan "Mni Wiconi," ("Water is life" in the Lakota language), water protectors pointed out that an oil spill would not only affect the drinking water of the Standing Rock reservation, but all communities downstream.

The fight for Standing Rock became a symbol not only for environmental justice, but also for Indigenous sovereignty.

The water protectors feared spills and leaks of the pipeline--and were right to do so. Since June 1, the oil transported through DAPL has accounted for nearly half of the daily oil production in North Dakota, the nation's second-leading producer behind Texas.

And spills have already begun to occur. On April 4, the first spill from the pipeline was recorded--followed by another spill on May 10 in South Dakota.

As the water protectors pointed out, it was never a question of if the pipeline would leak or spill--it was a matter of when and how much.

That the oil shouldn't be extracted or transported in the first place is, of course, not even up for consideration by the courts. So while Boasberg's ruling opens the door to the possibility of halting the pipeline, it will take a sustained fight to achieve this.

FOR MONTHS, Standing Rock became an inspiring site of resistance and drew thousands of activists at the height of one of the most unpopular presidential election in modern history.

Neither Hillary Clinton nor Donald Trump touched on the issue during the campaign--though Trump signaled from the start that as president he would be willing to do the bidding of the fossil fuel industry.

One of the most inspiring moments of solidarity at Standing Rock came when veterans of the U.S. military travelled to defend the camp from attacks by law enforcement and the threat of eviction.

In a scene that brought many to tears, soldiers opened up to tribal elders, apologizing for the historic actions of the U.S. government against the Indigenous.

After Trump took office, the Army Corps reversed its position and ordered the camp disbanded. But the Standing Rock Sioux Tribe has continued to challenging Energy Transfer Partners and its government cronies in court--including contending that the federal permits issued to Energy Transfer Partners were granted without proper consultation and an environmental impact study.

Commenting on Boasberg's decision in June, Standing Rock Sioux Chairman Dave Archambault II said in a statement:

This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing. The previous administration painstakingly considered the impacts of this pipeline, and President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests. We applaud the courts for protecting our laws and regulations from undue political influence and will ask the Court to shut down pipeline operations immediately.

Boasberg's ruling not only acknowledges the importance of the potential environmental impact of the pipeline, but also the tribe's treaty rights under the law. As Earthjustice attorney Jan Hasselman, who has been representing the tribe in court, said in a statement:

This decision marks an important turning point. Until now, the rights of the Standing Rock Sioux Tribe have been disregarded by the builders of the Dakota Access Pipeline and the Trump administration--prompting a well-deserved global outcry. The federal courts have stepped in where our political systems have failed to protect the rights of Native communities.

THE QUESTION now for activists is how we can continue the fight against DAPL and other fossil fuel projects.

There are competing ideas about what strategies to pursue. Archambault's approach favors fighting the pipeline in court. Last year, Archambault argued in favor of dismantling the Oceti Sakowin camp after Obama asked for an environmental impact statement.

Many of the water protectors disagreed with that approach. They argued that the camps should remain--and that activists needed a plan beyond the courts for how to oppose pipeline construction.

Victories like the ruling from Judge Boasberg are important for both the tribe and the larger environmental justice movement, and can embolden opponents of the pipeline. It's powerful when the courts acknowledge that the Trump administration is violating treaty rights.

However, to stop DAPL and get the government to halt the flow of oil will require protest on the ground--in the form of grassroots organizing to physical blockades.

This debate has to be had among activists. Many will say that "the courts are our best bet because Trump won't do anything," but we have to remind ourselves that it was the mass movements of the 1970s that forced then-President Richard Nixon to establish the Environmental Protection Agency. It was also the Nixon administration that reversed the detrimental policy of termination towards Indigenous people.

Nixon was no friend of either the environment or Indigenous people. It was the pressure of mass movements demanding more protection of the environment and self-determination for Indigenous people that forced his administration to make various concessions.

While the Trump administration is particularly ruthless, our ability to halt the flow of oil through DAPL will ultimately come down to how we organize to hold the government accountable. As the late historian Howard Zinn said, "The really critical thing isn't who is sitting in the White House, but who is sitting in--in the streets, in the cafeterias, in the halls of government, in the factories. Who is protesting, who is occupying offices and demonstrating--those are the things that determine what happens."

These debates about how we can continue to fight for justice for Standing Rock need to continue--and we need to build a fighting left that can ensure that protection of the environment and Indigenous sovereignty are seen as more important than profit.

Further Reading

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