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Jan Lee headshot

The Dakota Access Pipeline Fight Isn't Over

By Jan Lee

A federal judge who refused to halt the Dakota Access Pipeline’s controversial route under the Missouri River is now siding with the Obama administration’s efforts to block its current route, which the Army Corps of Engineers agreed may present risk to local water sources.

On Friday, U.S. Judge James Boasberg turned down a request by Energy Transfer Partners, the company building the pipeline, to “force” the federal government to expedite the project and let crews drill under the river.

Instead, Boasberg promised to review the case next year and gave Energy Transfer and the Justice Department until Jan. 31 to file petitions with the court.

The denial is the latest blow to the developer’s effort to complete the last leg of a 1,200-mile pipeline that would transport heavy Bakken crude from North Dakota to Patoka, Illinois.

The Obama administration’s surprise decision to turn down the route under the Missouri River brought jubilant responses not only from the Standing Rock Sioux Tribe and the cadre of protesters settling at a local encampment, but also from indigenous supporters across the world.

The DAPL protests are arguably the biggest and most vocal Native American protests in U.S. history. It has also become a symbol for indigenous tribes across the world who are struggling to solidify their own rights to local natural resources. Earlier this fall the Maya Indians of Guatemala traveled to Standing Rock to express their support for the Sioux tribe’s concerns about vital water resources.

The fate of the DAPL under a Trump administration

But does the Army Corps' decision really ensure that the Standing Rock Sioux's water and burial sites will be protected?

Even though Standing Rock Sioux Chairman David Archambault II called for protesters to go home, environmental organizations are sounding alarm that an incoming Trump administration could swiftly reverse the decision and award Energy Transfer Partners the right to drill under the Missouri River.

"The Trump administration could easily approve the project early next year," wrote supporters of Sacred Stone Camp, a website representing a grassroots movement opposing the DAPL-Missouri River crossing.

The organization asserts that the U.S. Army Corps of Engineers never really agreed to do a full environmental impact statement of the entire DAPL route -- even after the Corps announced it would need to review alternative options for DAPL's path. But the Corps said it will conduct a more thorough impact statement to help determine how to complete the pipeline.

But a pro-pipeline stance by the Trump administration doesn't necessarily mean Energy Transfer Partners will get their preferred route back, argues EarthJustice, which is providing Standing Rock's legal defense.

"Reversing this decision would be arbitrary, capricious and unlawful, and we would challenge it in court," EarthJustice insisted. "There are important issues on the table concerning tribal treaty rights and environmental justice that the Corps decided need a full review."

“The question on everyone’s mind is what happens in seven weeks,” said Jan Hasselman, a lawyer with the environmental organization. “If Trump reverses this decision, we’ll see them in court.”

Still, there are factors that pipeline proponents say should be taken into consideration in the future review. And there are others that could influence the outcome of a Trump-backed decision.

This isn't the first pipeline

Proponents point out that the Missouri River has been a crossing route for pipelines before. In fact, says the Standing Rock Fact Checker (SRFC), the proposed pipeline was designed to cross Lake Oahe at the same approximate point as a natural gas pipeline that was erected in 1983.

The SRFC is a project of the Midwest Alliance for Infrastructure Now (MAIN), a consortium of businesses that support the Dakota Access Pipeline. According to MAIN, the Northern Border Pipeline transports about 2 million cubic feet of natural gas each day to lllinois and Indiana using a crossing underneath Lake Oahe.

But natural gas isn't Bakken crude oil. While both substances have proved to be disastrous for drinking water sources, recent crude oil pipeline spills demonstrated even greater challenges in adverse or changing weather.

A crude oil spill under the Yellowstone River, which we reported on in January 2015, has become the test case for what happens when crude oil leaks under a major waterway -- and the unknown factors that contribute to environmental and drinking water degradation.

Crude oil pipeline leaks aren't rare

In June 2015, after a crude oil leak in Santa Barbara, California, High Country News published a map of crude oil leaks in North America. More than 200 incidents were reported in a five-year period, most from corrosion or defective seals or fittings.

Crude oil leaks continue to be a major concern, especially in the Midwest, where communities have expressed concern about the potential risk to wetlands and drinking water resources from heavy oil.

Native American sovereignty and rights

Last week, as ETP was in court appealing the Obama administration’s decision, another appeal was taking shape, this time before the Organization of American States.

On Friday, three U.S. tribes -- the Standing Rock Sioux, the Yankton Sioux and the Cheyenne River Sioux -- testified before the Inter-American Commission on Human Rights concerning the recent impacts of the DAPL project.

According to the filling, the tribes asked the commission to urge the U.S. government to “adopt precautionary measures to prevent irreparable harm to the Tribes, their members, and others resulting from the ongoing and imminent construction of the Dakota Access Pipeline, and from the harassment and violence being perpetrated against people gathered in prayer and protest in opposition to DAPL.”

They also maintain that the U.S. Army Corps of Engineers, under the U.S. Army, failed to assess and take precautions to protect against environmental and social impacts from the project, such as the loss of burial sites and artifacts normally protected by federal law.

The tribes also maintain that the steps that were taken by state and county agencies against protesters and water protectors raise “grave human rights concerns surrounding threats, harassment and injury sustained by people peacefully praying and protesting in defense of the waters and the Tribes’ rights.”

With the Trump administration due to take office in less than a month, it is unclear what geographic route, if any, the DAPL will take next year. But for now, both sides seem to be digging in for the long, hard winter fight.

Image credit: Flickr/Fibonacci Blue

Jan Lee headshot

Jan Lee is a former news editor and award-winning editorial writer whose non-fiction and fiction have been published in the U.S., Canada, Mexico, the U.K. and Australia. Her articles and posts can be found on TriplePundit, JustMeans, and her blog, The Multicultural Jew, as well as other publications. She currently splits her residence between the city of Vancouver, British Columbia and the rural farmlands of Idaho.

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