The future of the Dakota Access Pipeline, which sparked an opposition movement led by tribes across the nation, including many from Washington, now is in doubt, following a barrage of court rulings and a decision before the U.S. Army Corps of Engineers.
The 1,172-mile-long pipeline continues to move oil, despite a court ruling last month that yanked the pipeline’s permit.
A ruling from the U.S. Court of Appeals for the District of Columbia Circuit Wednesday kicked back to the lower court an injunction that required the pipeline to be shut down and drained of oil by Wednesday, Aug. 5, stating the basis for that finding was inadequate. But the court upheld that court’s decision to vacate permits crucial for construction and operation of the pipeline.
The split decision by the court puts the Corps of Engineers for the Omaha District in the position of deciding what to do next. A spokesman for the district declined to comment Thursday, as did the U.S. Department of Justice.
The pipeline has the capacity to move 570,000 barrels of oil a day from the Bakken oil fields in North Dakota to the Midwest, where the pipeline makes more connections to Gulf Coast ports. The pipeline has been operating since June 2017.
Energy Transfer Partners, the developer of the pipeline, said in an emailed statement Thursday that it’s staying in the fight to keep moving oil. The company maintains the environmental review for the pipeline was adequate and the underground pipeline is safe.
The Affiliated Tribes of Northwest Indians (ATNI), a nonprofit representing 57 tribes from Alaska to California, continues to oppose the pipeline, said Don Sampson, head of the climate change program from ATNI, and a traditional chief of the Walla Walla Tribe of the Confederated Tribes of the Umatilla Indian Reservation.
The ATNI, as well as the Stillaguamish, Nez Perce and Confederated Tribes of the Umatilla Indian Reservation were among 28 tribes that signed on as friends of the court in the suit to shut down the pipeline.
Sampson’s family took 80 Pendleton blankets, elk, roots and berries to Standing Rock in the bitter winter of 2016 to support thousands of tribal members and their allies. The protest encampment at Standing Rock drew worldwide attention, both for the vehemence of the protest against the pipeline, and the violence by police against the demonstrators, including hosing them with water during freezing temperatures.
The Standing Rock Sioux Tribe won its court fight against the pipeline, only to be set back by an executive order by newly elected President Donald Trump, who demanded the pipeline go forward.
With the permit to operate canceled by U.S. District Court Judge James Boasberg in his July 6 order, what happens now is the question.
“In an ordinary time, in an ordinary place, if you don’t have the permit, you can’t do the thing,” said Jan Hasselman, attorney with Earthjustice in Seattle, who has been lead attorney for the Standing Rock Sioux since the controversy began in 2016.
“So the question is, ‘OK, Army Corps, how will you handle that?'” Hasselman said. “This is putting the Army Corps in the position to say whether they are going to enforce their own laws, or let this slide.”
If the Corps allows the pipeline to keep operating, that raises the issue once more in the lower court to shut it down, as an environmental review of its safety proceeds. The lower court found the Corps violated the National Environmental Policy Act and glossed over the consequences of a potential oil spill when it affirmed its 2016 decision to permit the pipeline.
The court ordered the Corps to re-examine the risks of the pipeline and prepare a full environmental impact statement, a process that could take years — and leave final permitting to a new presidential administration.
“We really don’t know which way they will go,” Hasselman said of the Corps and the decision over whether to keep the oil flowing. “There is no precedent for this.”
The Corps became involved in the controversy because it was responsible for reviewing water crossings involved in a section of the pipeline. In total, the Corps has jurisdiction over a very small portion of the total pipeline project — approximately 37 miles.
However its crossing of the Missouri River at Lake Oahe takes the pipeline underneath a drinking water source for millions of people. The pipeline also crosses ancestral territory of the Standing Rock Sioux, which never ceded its rights to those lands by treaty or gave its consent to the project.
At the time it was built, the pipeline crossed nearby the tribe’s drinking water intake. The tribe has since moved the intake away from the pipeline.
However, the tribe’s opposition to the pipeline continues. And incidents, including a 276,864 gallon spill in November 2017, show the pipeline is unsafe, opponents contend.
“We are water protectors,” Sampson said of tribes opposed to the project. The fight isn’t only about one pipeline, but the larger battle for clean energy in a world in grave jeopardy because of emissions from fossil fuels that are heating the planet.
“How can anyone look into the eyes of grandchildren and say, we did nothing,” Sampson said.