By Michael Sainato
On August 7 the Standing Rock Sioux and Cheyenne River Sioux tribes filed a brief in federal court to shut down the Dakota Access pipeline, arguing that in lieu of a ruling in June 2017 that found a proper environmental review of the pipeline was not conducted, it should be shut down until it is completed. U.S. District Judge James Boasberg argued in his ruling that the Army Corps of Engineers “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.”
EarthJustice Attorney Jan Hasselman, representing the tribes, cited a similar case in the brief where a judge shut down a pipeline for a NEPA violation. “In fact, no party has identified any case in this Circuit where a court has allowed a project to continue while the agency conducts a new NEPA analysis on remand. Nor has any party explained why this Court should be the first,” the brief noted.
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He explained in an interview with me that it remains to be seen how the Army Corps of Engineers will respond under the Trump Administration. “We are not really optimistic. They have not reached out to the Tribes at all yet and the attitude expressed in the brief is that they are looking at this as a minor paper exercise – they are going to provide additional explanation for their decisions rather than a genuine ‘hard look’ that the law requires. The fact that the Trump Admin is in charge makes it even more unlikely that they will take this seriously,” Hasselman said. He added that if the federal judge continues to allow the pipeline to operate, there’s little recourse left. “There’s an appeal option but if the remand will be done by the end of the year, it is unlikely it would get resolved in time to make a difference.”
In 2016, thousands of water protectors, activists, protesters and members of Native tribes from across the World joined together at Standing Rock Water Protector Camps in North Dakota on the edge of the Standing Rock Sioux reservation to fight against the construction of the pipeline that crossed under Lake Oahe, threatening the drinking water of the Standing Rock Sioux reservation. The pipeline’s construction also desecrated dozens of sacred burial sites in the process of construction, and several water protectors suffered abuse and harassment from the Morton County Sheriff’s Department and private security hired by the pipeline’s company. Among the injuries included 21 year-old Sophia Wilansky nearly losing her arm from a concussion grenade fired at her by police and Vanessa Dundon losing sight in one of her eyes from being struck in the face by a tear gas canister. Water protectors regularly faced a barrage of mace, tear gas, and rubber bullets from a highly militarized police force. In September 2016, Democracy Now reported private security hired by the pipeline were using dogs to bite water protectors, and several protectors were arrested and held in dog kennels. As a propaganda tool to suppress the water protectors’ movement, the Morton County Sheriff’s Department ran their own disinformation campaign on their Facebook page, which included a highly racist Thanksgiving Day post mocking Native Americans among other falsehoods pushed by the police force. The Dakota Access Pipeline Company created their own disinformation website, DAPLPipelineFacts.com, and has ensured its the first thing to pop up in search engines when Dakota Access Pipeline is searched.
In late November 2016, Police defended using water cannons against water protectors in sub-freezing temperatures, a violent act that contributed to public support for water protectors. A few weeks later, the Army Corps of Engineers finally halted the pipeline’s construction and ordered an environmental assessment to be conducted to find alternate routes for the pipeline. As anticipated, the Trump Administration rescinded that decision and the pipeline’s construction was allowed to be completed. But just weeks after construction ended, before the pipeline was even fully functional, the inevitable leaks that water protectors asserted would occur did.
Since Trump streamlined the final construction of the pipeline, three separate leaks on the pipeline have been reported. The first leaked about 84 gallons at a pump station in Tulare, South Dakota, about 200 miles south of the Standing Rock camps. Two more leaks were later reported, one in Mercer County, North Dakota. The leaks spilled over 100 gallons of oil. The Associated Press reported the spills further corroborate claims from native tribes that oil leaks from the pipeline pose dangerous threats to the main drinking water supply of the Standing Rock Sioux reservation. On June 1, the pipeline began full operations, but a federal judge could shut it down until a full environmental review is completed.
In the latest brief, the Standing Rock Sioux and Cheyenne River Sioux tribes argued, “the Corps must prepare a new [environmental] analysis of key issues at the heart of this dispute and make a new decision based on a full and objective analysis. The only way to ensure the integrity of that process, and reduce the risks to the tribes that the process is supposed to be analyzing, is by applying the default remedy of vacatur — as virtually every court to face a similar situation has done.” Attorneys representing the Army Corps of Engineers are fighting to keep the pipeline operational.