On Friday Energy Transfer Partners will ask a federal judge to allow construction to resume immediately
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JAISAL NOOR: Thousands are vowing to brave treacherous winter weather and stay camped out in North Dakota even after the Army Corps of Engineers at least temporarily halts the construction of the Dakota Access Pipeline. Standing Rock Sioux Chairman Dave Archambault has also asked non-natives to go home. On Friday, the company behind the pipeline, Energy Transfer Partners, will ask a Federal judge in Washington, DC, to allow construction to resume immediately. JAMES MEGGESTO: Well, certainly anything can happen in Federal Court and the Judge has wide discretion, but from what I understand the Company has indicated that, and has filed papers to the effect, that they believe they believe they already have the necessary approvals. They’re doing this to get court approval for the fact that they could resume drilling and complete the pipeline. I think it’s somewhat at odds with what they said at the hearing in August, where they seemed to acknowledge that they needed the additional Army Corps easement to actually drill under the lake. But they view the Corps’ Sunday decision as for what it is, I think, which is it has the potential to be a significant delay for the project. Because what the Corps has done has said, “There needs to be an environmental impact statement.” Which can be a months-, perhaps even years-long process, in which numerous alternatives have to be studied and, in particular, they want a broader explanation as to why the original route, which would have taken it well north of the reservation and even north of Bismarck, why that was discarded early on? JAISAL NOOR: President-elect Trump’s transition team has said it supports the project and would review it after he takes office. Donald Trump is heavily financially connected to the pipeline project. Standing Rock Sioux Chairman, Dave Archambault II, said non-Sioux protestors could go home because no action was likely until late January, after Trump takes office. DAVE ARCHAMBAULT II: Our mission has been accomplished. We built awareness. A decision has been rendered. It’s time to remove the roadblocks. It’s time for everybody to go home and be safe. You know, the new administration coming in, it’s an opportune time for us to educate the President-elect and help him realize what he has achieved is only because of the cost that our people have paid. JAISAL NOOR: But some members of the Standing Rock Sioux Tribe disagree. This is Chase Iron Eyes, Staff Attorney of the Lakota People’s Law Project. CHASE IRON EYES: Every tool we have at our disposal needs to go to keeping our protectors safe right now and keeping them on the ground. Because DAPL has already indicated that it’s willing to violate the law. Trump takes office in 40 days and we have a live court case where DAPL is seeking a court order to allow them to drill anyway — despite Obama’s ruling. JAISAL NOOR: Energy Transfer Partners has said it has no plans to reroute the line and expect it to complete the project. According to court filings, they have already lost hundreds of millions of dollars due to delays and investors can walk away from the deal if the Army Corps doesn’t approve the deal by January. The pipeline is complete except for a one-mile segment that was to run under Lake Oahe which has required permission from Federal authorities. The US Army Corps of Engineers said it would analyze possible alternative routes. But any other route is likely to cross the Missouri River. We reached Native American Attorney, James Meggesto to contextualize the decision. He’s a deputy practice leader of the Native American Law Group, Holland & Knight in Washington, DC. JAMES MEGGESTO: I think the broader issue that you’re seeing with that is that people are passionate about the issue. And, whether Indian or non-Indian, people have gone to a place that’s going to see the harshest winter conditions of, really, any place in the lower 48th. And they’re there willing to stick through the winter because they believe strongly in what is at stake here. But I think it would be unlikely that even if the new administration when it comes in after inauguration day, if the Army Corps has set up a process where they want there to be additional study, that is only going to, you know, be able to be defensible in court, whichever side wins, if an adequate record is developed through not only consultation, fact-finding, and really some significant environmental research. The difference between what they’ve done previously with an environmental assessment versus a full environmental impact statement is significant. You can’t really do an effective EIS that will withstand judicial scrutiny if you don’t take the time necessary to establish a record or whatever preferred alternative is decided upon. JAISAL NOOR: Now some are worried that when Trump takes office he can just reverse the Army Corps decision and it goes back to them being able to drill that last mile. JAMES MEGGESTO: Well, there certainly is a new administration coming in and there are some things that can be done right away. But there are other things that are sometimes difficult for administrations, whichever issue it is to immediately undo. You know, you see it with Obamacare. You know, that’s not going to be repealed on day one. There are a lot of moving parts and I think the same is true here because it’s the agency, it’s the Army Corps of Engineers that’s already a party to the litigation brought by Standing Rock. The decision that it’s made thus far — which isn’t a permanent denial of the easement, they’ve simply said, “We need more time. We need more study. We need more information to determine whether we’re going to grant that easement.” If there was something done to reverse that interlocutory decision, then I think it becomes vulnerable to judicial review. I don’t think this is necessarily the kind of purely political decision that some have characterized it as. This is, you know, to build a pipeline of this length and crossing the consideration and intersection of a number of statutes. JAISAL NOOR: And do you see the struggle at Standing Rock and the massive amount of national, international support for them, as a historic moment? And do you think this could be a turning point for the relationship between the indigenous people of the United States and their land and their rights in this country? JAMES MEGGESTO: Well, I think in a lot of ways it already has been a significant turning point. Tribes have been galvanized that I’m sure hundreds upon hundreds of, you know, unique different Indian tribes from across the country and, as you said, indigenous groups from across the world, have expressed support and have actually gone to Standing Rock. And there’s a reason for that. They’ve gone there because they them …of pollution, contamination, you know, taking of land, and it all really becomes a part of the question of environmental justice. I think, it’s not a coincidence that Indian tribes have a disproportionate amount of brownfields and contamination affecting their lands. And really it’s an issue that affects, you know, all communities, you know, a lot of communities and people of color. That, you know, you can have a hard time finding tribal lands that haven’t been negatively impacted by environmental issues. And so, I think for whatever reason, this has galvanized Indian country and a line in the sand, so to speak, has been drawn and people want their voice to be heard, that you know, enough is enough. And I think the government has heard that. I don’t view this as a partisan issue. You know, the government and its responsibility to Indian tribes endures whether it’s a Republican or Democrat in the White House. And what has come out of this situation is a re-examination of whether the consultation and the environmental statutes that are designed to protect the environment and protect cultural and historic resources, need to be strengthened so that Indian tribes have a strong voice, because it’s important to remember Indian tribes are not the general public. They are sovereign entities that have to protect the homelands for their people. They’ve been doing so since European contact and will continue to do so going forward. And they can only really do that if consultation with them means something more than simply checking a box. JAISAL NOOR: For The Real News, this is Jaisal Noor. ———————— END