Standing Rock, DAPL, loopholes and the law
Monday, November 07 2016
Written by Winona LaDuke,
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The Standing Rock Tribe is poised to consider the Dakota Access Pipeline (DAPL) in a set of regulatory hearings, very similar to the hearings undertaken in 2015 by the White Earth and Mille Lacs bands of Ojibwe. In the case of the Mille Lacs and White Earth Band, Tribal Administrative hearings were held on the proposed Enbridge Sandpiper line, after essentially Minnesota’s Public Utilities Commission continued on with a process absent of any tribal regulation; and until ordered by the Minnesota Appeals court, had refused to do an environmental impact statement. The Standing Rock case is very similar; there has been no environmental impact statement or comprehensive review of the l600 mile Dakota Access Pipeline, despite a clear set of environmental impacts.

As the arrests increase (over 300 at last count), and what is a clear set of conflicting interests in North Dakota’s regulators, Senators and governor; it is clearly time for the Standing Rock Tribe to conduct environmental hearings. Those hearings will be held on Nov. 4 (Administrative Offices in Ft. Yates), November 9 and 21 (Prairie Knights Casino), and November 22 in South Dakota. The hearings will offer the public and expert witnesses the opportunity to testify as to the impact of federal decision making on the environment, and provide documentation which has not been used by the Army Corps of Engineers and other federal agencies to date, as the process has been circumvented.

Having spent four years in the Minnesota PUC hearings opposing the proposed Enbridge Sandpiper (640,000 barrel per day fracked oil) pipeline, I can say that I tried to work within the system.

Enbridge, the largest North American pipeline company, abandoned the pipeline, I assume, because a true environmental review would have made it unfeasible; or what’s called a no build option. Costs were high to do the right thing. When the system works it shows that, sometimes, despite how much money a corporation puts into the political system or how many politicians have hearty friendships with lobbyists, the project should not go ahead in the interests of the public. That’s how the law should work. But that process was clearly forced by the White Earth and Mille Lacs Band of Ojibwe, as well as citizens such as Friends of the Headwaters, who filed a lawsuit forcing the state to do an environmental impact statement (EIS).  

Not so out here in the heart of the Missouri River Basin – Lakota, Arikara, Mandan, and Hidatsa territory – today known as North and South Dakota. The Dakota Access Pipeline is an example of how the system doesm’t work. It is also a case study in Regulatory Capture, a cool name for when corporations write your public policy, or hijack it.  

In mid October, Honor the Earth, with the Sierra Club and the Indigenous Environmental Network (IEN), sent a letter to the US Army Corps of Engineers asking for a full environmental impact statement on the proposed DAPL. The 570,000 barrels per day of fracked oil pipeline which crosses wet lands, rivers, and plows through Native sacred sites and cemeteries, will put at risk the water of the poorest people in North Dakota, while sparing Bismarck. The organizations say DAPL cheated, and that under federal regulations, an EIS can be requested of the Army Corps of Engineers if there is new information, or information not reviewed previously by the Corps.

In the October 10 letter, the organizations noted, “The National Environmental Policy Act (NEPA) dictates that ‘agencies…shall prepare supplements to either draft or final environmental impact statements if… there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’” The organizations are asking for a full environmental impact statement, based on the new findings.    

It seems there’s a quick way to get a pipeline in these days, that’s when you use loopholes to get your way. Under the law (404 permit), the Army Corps of Engineers must provide “notice and an opportunity for public hearings” and evaluate the project’s impacts pursuant to the NEPA. (That’s the one that keeps, for instance, your drinking water clean and the poisons  out of  air of residential communities).

That didn’t happen. Instead the Army Corps used a regulation called the Nationwide Permit  process. The Clean Water Act’s general permit program was intended for projects with minimal environmental impacts or results in under a half acre loss of waters. This is for essentially boat ramps, mooring buoys, and recreational facilities. The letter notes, “The Corps avoided this transparent review process for DAPL by approving each of the thousands of water crossings along the pipeline route under the fast-track Nationwide Permit 12 process… the Corps has begun segmenting massive interstate pipelines like DAPL by artificially treating the thousands of water crossings as separate projects that each qualify separately under NWP 12. In this way, the Corps has approved the 1,168-mile DAPL crude oil pipeline under NWP 12 without any project specific 404 review process. The Sierra Club, with Honor the Earth and the IEN, suggest that this process was circumvented in the DAPL proceeding, and does not meet the requirements of the intent of the law.”

Then there’s the desecration. There are laws to protect historic and sacred sites. “…On Friday, September 2, the day before Labor Day weekend,  Standing Rock submitted to the court detailed findings of rare cultural sites, which include 27 graves, stone prayer rings, and other sacred artifacts directly in the path of the proposed pipeline. There are at least 380 archeological sites that face desecration along the entire pipeline route. NEPA actually prohibits the Corps from issuing the final permit/easement for… Lake Oahe if it determines that the company engaged in anticipatory demolition; that is, if DAPL intentionally destroyed or adversely affected potential historic sites along the pipeline’s path….. Early the next morning, DAPL responded by bringing in construction crews and bulldozing the specific areas described by Standing Rock in their filing. When protectors of the site entered the construction area, private security guards attacked them with dogs and pepper spray.”

“This demolition is devastating,” Standing Rock Sioux Tribal Chairman David Archambault II said. “These grounds are the resting places of our ancestors. The ancient cairns and stone prayer rings there cannot be replaced. In one day, our sacred land has been turned into hollow ground.”

Then there’s what’s fair. On August 18, the Bismarck Tribune reported that DAPL had routed the pipeline through Standing Rock’s ancestral lands and under its drinking water supply to avoid jeopardizing the drinking water supply of Bismarck, ND. The paper reported, “early in the planning process, Dakota Access  considered (crossing)… Missouri River about 10 miles north of Bismarck…; but rejected that option…due to the costs associated with the proximity to wellhead source water protection areas (of) municipal water supply wells.” Instead the pipeline went upstream from the main drinking water intake for the Lakota.

Additional concerns are the 250,000 metric tons daily of carbon this project would add and the clear lack of regulation by the state of North Dakota, which has resulted in, according to the National Sciences Foundation, “widespread groundwater contamination” from fracking.

Example, since January of 2016 over l,000,000 gallons of crude oil waste oil, bio solids, natural gas and brine have spilled into the waters of the region, along with about 50,000 gallons of slaked lime solids which slid into the Missouri River. North Dakota’s Industrial commission has been levying some fines, but not collecting them. In 2015 and 2016, the Commission proposed a total of  $4.5 million in penalties, and collected only $126,000 or so.

For more info on the hearings, contact Allyson Two Bears at the Standing Rock Environmental Office at: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

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