Yesterday, opponents of the Dakota Access Pipeline rallied again in front of the White House, this time featuring Senator Bernie Sanders alongside protesters.
Despite multiple facts to the contrary, protesters opposed to the pipeline insist that the pipeline is illegal and should be stopped because it crosses tribal lands, did not receive a thorough review, has destroyed sacred sites, and will contaminate the Missouri River.
Protesters were seemingly bolstered by the extraordinary decision by the Executive Branch to supersede a federal court ruling by formally requesting a halt to construction through a combined statement from the Department of the Interior, Department of Justice, and Department of the Army.
But here are the facts that the protesters often seem to overlook:
The pipeline was reviewed and approved by 4 state utility regulators and the federal government. Permits were granted for construction by the North Dakota Public Services Commission, South Dakota Public Utilities Commission, Iowa Utilities Board, Illinois Commerce Commission. A Section 404 Permit under the Clean Water Act was granted for construction by the U.S. Army Corps of Engineers.
The pipeline does not cross the land of the Standing Rock Sioux Tribe. In fact, Dakota Access received voluntary easements from 100% of the property owners in North Dakota.
Dakota Access will have no impact to the Missouri River or any water resources in the region. This was determined during the regulatory review of the project. As many as 8 pipelines already pass under the Missouri River, transporting hundreds of thousands of gallons of petroleum products every day.
The project will not disturb historically or culturally significant sites. Numerous historians, archeologists, and experts reached this conclusion during their review of Dakota access.
While opponents’ claims might appeal on an emotional level, they lack any factual backing.
The Dallas Morning News is reporting that Kelcy Warren, CEO of Dakota Access’ parent company Energy Transfer Partners released a memo to employees which clarified the company’s position amidst the ongoing protest against the Dakota Access Pipeline.
The memo highlights the following points:
The right of way for the entire Dakota Access Pipeline has been obtained in all four states.
The land adjacent to, and underneath Lake Oahe where the pipeline will be constructed is not subject to Native American control or ownership.
The pipeline crossing at Lake Oahe is adjacent to an existing natural gas pipeline constructed in 1982.
Multiple archaeological studies found no sacred items or sites along the route.
Multiple pipelines, railways, and highways which transport energy resources already cross the Missouri River.
Warren goes on to say that the company has met with the Standing Rock Sioux Tribe nine times over the course of the permit application process:
“We – like all Americans – value and respect cultural diversity and the significant role that Native American culture plays in our nation’s history and its future and hope to be able to strengthen our relationship with the Native American communities as we move forward with this project,” says Warren.
After two years of rigorous review, consultations, and planning, state regulatory bodies of four states and the federal government gave final approvals to build the Dakota Access Pipeline. Thousands of American workers have labored to already complete half of the pipeline, at a cost of $1.4 billion — all in private money.
But last week, the Obama Administration announced a plan to “reconsider… previous decisions” regarding a single crossing of the pipeline. The letter came despite a federal judge’s decision to allow construction to continue, and despite a lack of jurisdiction over the regulatory process in question by either the Department of Interior or Department of Justice.
Continued delay of a portion of the project and after the fact reconsideration of permits and approvals undermine the very regulatory process the government created.
No American company would dare expend years of effort and billions of dollars weaving through the regulatory process to receive the necessary permits and agreements, only to be faced with additional regulatory impediments and be shutdown halfway through completion.
The administration’s final decision should reflect science and engineering – not political pressure.
The National Association of Manufacturers (NAM) and the MAIN Coalition, a partnership of agricultural, business and labor groups, support the economic development and energy security benefits associated with infrastructure projects including the Dakota Access Pipeline.
The Standing Rock Sioux Tribe (SRST) and EarthJustice’s suit is entirely focused on National Historic Preservation Act requirements and does not have anything to do with irreparable ENVIRONMENTAL harm.
DAPL utilized past cultural surveys, including from Northern Border, and the route was modified to avoid all 91 of these stone features and all but 9 of the other potentially eligible sites. By the time the company finally settled on a construction path, then, the pipeline route had been modified 140 times in North Dakota alone to avoid potential cultural resources
Repeated attempts to engage SRST failed often because SRST failed to respond or engage while other tribes did respond to requests from the Corps
Meetings between Chairman Dave Archambault and the Corps were frequently skipped or rescheduled.
Some of the court findings included that the Corps exceeded its NHPA obligations at many of the PCN sites, the Tribe, then, did not have an absolute right to participate in cultural surveying at every permitted undertaking, as it seems to argue, and General Permitting (NWP 12) is advantageous in a case like Dakota Access where the vast majority of the project will not occur on federal land.
It was the Standing Rock Sioux Tribe’s burden to point to the specific NWP 12 permitting that was likely to cause it injury. Standing Rock did not do so with regard to the permitting that has occurred outside of the PCN verified locations.
The full memorandum can be found here. Here are a few of the key findings from the U.S. District Court for the District of Columbia:
“SRST filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur.”
Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 1 of 58
“General permitting has obvious advantages over individual permitting…”
Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 8 of 58
“Dakota Access nevertheless also prominently considered another factor in crafting its route: the potential presence of historic properties. Using past cultural surveys, the company devised DAPL’s route to account for and avoid sites that had already been identified as potentially eligible for or listed on the National Register of Historic Places…Professionally licensed archaeologists conducted Class II cultural surveys, which are “focused on visual reconnaissance of the ground surface in settings with high ground visibility.” Id. In some places, however, the same archaeologists carried out more intensive Class III cultural surveys…these latter surveys required coordination with and approval by State Historic Preservation Officers.
“Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 14 of 58
“…the Corps reviewed extensive existing cultural surveys both within and outside the Lake Oahe project area to determine whether the work might affect cultural resources. Then, on October 24, the Corps sent out a letter to tribes, including the Standing Rock Sioux, with information about the proposed work and maps documenting the known cultural sites that the Corps had already identified…includ[ing] sites that the Corps considered to be outside the projected area of effect…No response was received from the Tribe.”
“It was Standing Rock’s burden to point to the specific NWP 12 permitting that was likely to cause it injury. Standing Rock did not do so with regard to the permitting that has occurred outside of the PCN verified locations.”
Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 54 of 58
Not only was due diligence completed by the Corps of Engineers for cultural, historical, and archaeological surveys, in many cases consultation and surveys exceeded what was required under Federal law. But most notably, this suit had nothing to do with the environmental impacts of the pipeline, which were also examined in thorough detail by the North Dakota Public Services Commission, the U.S. Army Corps of Engineers, and the U.S. Fish and Wildlife Service during the review process. All of the necessary permits were granted by those organizations so construction could commence.
Immediately after a ruling from the U.S. District Court for the District of Columbia that would have allowed construction on the Dakota Access Pipeline to proceed, the Department of Justice interceded and released a joint statement with the Department of the Army and the Department of the Interior calling for construction to voluntarily halt on the Lake Oahe segment of the Dakota Access Pipeline.
MAIN Coalition spokesman Craig Stevens released the following statement in response:
“The joint statement issued by the Department of Justice, the Department of the Army, and the Department of the Interior immediately after Judge Boasberg’s ruling is deeply troubling and could have a long-lasting chilling effect on private infrastructure development in the United States. Judge Boasberg had already issued a thoughtful, thorough decision agreeing that the Army Corps had done its job and had adequately consulted with and considered Tribal concerns; which in turn led to more than $1.4 billion in investments by Energy Transfer Partners – the pipeline construction company.
It is also concerning that the federal government would threaten the livelihoods of thousands of workers who rely on good governance to support a stable workplace. Based on the Administration’s actions today, these workers’ jobs are in peril.
Should the Administration ultimately stop this construction, it would set a horrific precedent. No sane American company would dare expend years of effort and billions of dollars weaving through an onerous regulatory process receiving all necessary permits and agreements, only to be faced with additional regulatory impediments and be shutdown halfway through completion of its project.
We hope and trust that the government will base its final decision on sound science and engineering, not political winds or pressure.”
MAIN Coalition spokesman Craig Stevens released the following statement:
“We are pleased that Judge Boasberg’s reasonable decision will allow work to move forward on the Dakota Access Pipeline. The company has received all needed approvals, invested billions of dollars across four states, and worked to be good partners in this – one of the largest private infrastructure projects ever developed in the U.S.
“Had the decision been different, it most certainly would have had a chilling effect on domestic infrastructure development and the U.S. economy as no sane American company would dare invest the time and resources necessary for proper consultations and approvals only to have its project shuttered halfway through.
“While we certainly recognize the emotionally charged atmosphere at the site and elsewhere, we are hopeful that all parties will follow the law, peaceably demonstrate, and ultimately move forward together in support of a better future for all individuals and communities concerned.”
In a blog published in The Hill, Jack Rafuse, a former energy advisor to the Nixon administration weighed in on the ongoing protest of the Dakota Access Pipeline:
“In a recent opinion piece, Standing Rock Sioux tribe chairman David Archambault II writes eloquently, but ultimately without precision and factual context as he opines against the ongoing Dakota Access pipeline. He said that, when it comes to opposing Dakota Access, “we all have a responsibility to speak for a vision of the future that is safe and productive for our grandchildren.”
To be sure, it is fully within the opposition’s right to disagree with aspects of the Dakota Access pipeline. However, the Standing Rock Sioux tribe did not participate in any public comment meetings in North Dakota, did not submit written testimony in opposition to the project, and refused to meet with officials from the Dakota Access project on 7 different invitations. This was a process that included nearly 400 meetings on cultural surveying and 11 meetings between the Army Corps of Engineers and the Standing Rock Sioux tribe. As American citizens, we have the right to civic participation but also the obligation to abide by its outcomes.”
Mr. Rafuse is correct. After nearly two years of review, it is time to accept the decisions made by the proper regulatory authorities that have already approved the construction of this project. The Standing Rock Sioux Tribe had multiple opportunities to participate in the review process for the project and chose to not engage with the state. The Corps of Engineers held multiple consultations with the tribe as a part of their legal obligation.
The decisions have been made, it’s time to move forward with the lawful construction of Dakota Access.
President Obama recently weighed into the conversation surrounding the Dakota Access Pipeline. In an August 31st letter addressed to critics of the project, Mr. Obama outlined the need for the continued investment in alternative energy technologies, but rebuked the unrealistic notion that all fossil fuel production must cease immediately. To the contrary, he instead stressed his belief that safety must be at the forefront of American energy policy.
“Of course, we cannot complete the transition to a clean-energy economy overnight. We will continue to rely partly on fossil fuels—and while we do so, safety must be our first priority.”
Mr. Obama is right to emphasize the need for a safety-oriented approach when it comes to harnessing the power of our domestic energy resources. The Dakota Access Pipeline could not align better with this vision as it will serve as essential step to modernizing our nation’s energy infrastructure. By offering a safe, efficient means for transporting our energy resources, the pipeline will drastically reduce the volume of crude oil traveling through our communities in accident-prone railcars and trucks.
Furthermore, the Dakota Access Pipeline is being built by the most qualified workforce available – men and women who have dedicated their lives to advancing America’s infrastructure in a manner that ensures safe operation and long-term integrity. The pipeline will employ the latest in safety monitoring technology and in many cases, by built in a manner that exceeds federal guidelines and standards.
The MAIN Coalition applauds Mr. Obama for his thoughtful, realistic response to a set of impracticable demands that had been imposed upon him.
At a press conference alongside the North Dakota State Highway Patrol and the Morton County Sheriff’s Department, Gov. Jack Dalrymple announced that the North Dakota National Guard will be activated to assist local law enforcement at the Dakota Access Pipeline protests south of Mandan in Morton County.
The Governor said the decision was made “out of an abundance of caution” in order to free up law enforcement to patrol the area, while armed guardsmen will be posted at a checkpoint along Highway 1806. That highway was previously closed because of protest activity in the area. About 100 guardsmen from the 191st Military Police Company will also be on standby alert.
The decision comes at the same time members of Native American tribes and nations gather in Bismarck at a yearly powwow to celebrate Native American heritage and traditions at the United Tribes Technical College. Thousands of members of Native American communities from across the Great Plains are expected to attend.
Following the Governor’s announcement, MAIN Coalition spokesman Craig Stevens issued the following statement:
“Due to the emotionally charged and escalating atmosphere surrounding the Dakota Access Pipeline, we agree with Governor Dalrymple’s decision to activate the National Guard to help maintain a peaceful environment. Protesters should be able to peaceably convene, however individuals should also be able to conduct their work in a safe and harassment-free environment.
The pipeline is sited along a long-utilized energy corridor that has undergone significant construction over the past few decades and of which state archeologists issued a ‘no significant sites affected’ determination several months ago. The pipeline will not cross into the Standing Rock Sioux’s reservation and, once operational, will be among the safest, most technologically advanced pipelines ever constructed.”
According to an article released by the Dickinson Press the North Dakota State Historic Preservation Office (NDSHPO) believes that due diligence under federal and state regulatory standards was completed for the route of the Dakota Access Pipeline.
Chief Archaeologist Paul Picha said that he and a fellow NDSHPO staff member participated in a walk-through of the pipeline route on U.S. Army Corps of Engineers land east and west of the pipeline’s proposed Missouri River crossing. NDSHPO assisted in the federal review of the project.
The State Historic Preservation Office issued a “no significant sites affected” determination in February on the North Dakota segment of the pipeline, concurring with the findings of three cultural resource consulting firms, who meet the federal standards for archaeological review.
Additionally, North Dakota Public Services Commissioners pointed out that more than 500 cultural resources identified were addressed through reroutes, mitigation or other measures, and that the Standing Rock Sioux Tribe had multiple opportunities to weigh in on cultural concerns at the three public hearings held throughout the state as well as through consultations with the company that began in September 2014. The Tribe chose not to participate in these events.
The tribe has claimed inadequate time for meeting notices in tribal publications, despite the fact the project has now been announced for over 800 days, and North Dakota publicized the hearings for months.