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Commentary by Leon Worden
| Thursday, Mar 26, 2020

 

Photos & video by Leon Worden, November-December 2016

 

Remember Standing Rock?

Remember how the Standing Rock Sioux Tribe and its allies from across the country and around the globe fought to keep the Dakota Access oil pipeline away from the tribe’s primary water intake on the Missouri River?

Remember how they weren’t successful?

Well, a funny thing happened Wednesday in Washington, D.C., while the rest of us were busy “sheltering in place” and trying to “flatten the curve.”

The Standing Rock Sioux Tribe won.

Three-and-a-half years later – three-and-a-half years after 10,000 or 15,000 or more of us were freezing our butts (and hands and feet and faces) off in a minus-40 blizzard 50 miles south of Bismarck, North Dakota – the tribe won the exact thing it was fighting for.

On Wednesday, a federal judge struck down the pipeline company’s permits on grounds the U.S. Army Corps of Engineers didn’t follow the letter of the law when it signed off.

Understand, strictly speaking, the fight was never about stopping the pipeline completely. It was about stopping the pipeline from threatening the Standing Rock Sioux Tribe’s water supply.

It was about getting a federal agency to follow federal law and conduct a full-blown environmental review, known as an Environmental Impact Statement or EIS.

It was about equal justice under the law for a sovereign Indian nation. It was about following the process that would allow the tribe to say, in a legally meaningful way, nation to nation, that the pipeline was going to put its water supply in jeopardy.

Those things never happened.

Allies of the tribe came from all directions.

You’ve heard of an EIS. It’s the type of environmental review the feds did for Cemex. Which was appropriate. The highest-level environmental review of a 490-acre gravel mine that would impact us here in our little corner of Los Angeles County.

Now here was a 1,200-mile pipeline stretching across four states, and the federal government said no, let’s not bother to do as high a level of review as we did for a gravel mine in Soledad Canyon.

You see the imbalance?

The Standing Rock Sioux Tribe never got due process. It never had the opportunity to contribute to the strictest level of scrutiny of the pipeline project because the strictest level of scrutiny wasn’t done.

Even though federal law requires it.

Had there been a full environmental review, the tribe would have been able to show that the pipeline must be routed away from its primary water intake.

There wasn’t one, so the pipeline was allowed to plop right down across (actually beneath) the tribe’s primary water source.

All pipelines leak. Nobody disputes that. Even the Dakota Access builder said so.

Here’s the rub. The pipeline was originally going to cross the Missouri River 50 miles north of Bismarck. Guess who lives there? White farmers. They complained to the Army Corps. They complained that the pipeline was going to leak all over their property and ruin their crops.

After all, from 2006-2016, the pipeline operator had 276 separate accidents causing more than $53 million in property damage, according to court records.

Dakota Access Pipeline construction security lights shine on a campfire at the water protectors’ Oceti Sakowin Camp.

So, what did the Army Corps do? The Army Corps erased the farms from its pipeline map and stuck it down in Indian Country. It rerouted the pipeline 50 miles south of Bismarck, right on the border of the Indian Reservation, right next to the tribe’s water intake, without so much as a howdy-do or a full environmental review.

Now, three-and-a-half years later, the environmental review will be done.

On Wednesday, District Judge James E. “Jeb” Boasberg chastised the Army Corps for failing to take the tribe’s analysis of the pipeline project into proper consideration. The judge affirmed the pipeline operator has “one of the lower performing safety records of any operator in the industry” and ordered the Army Corps to prepare an EIS.

The judge wrote: “This court ultimately concludes that too many questions remain unanswered. Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains ‘highly controversial’ under (the National Environmental Policy Act). As the court thus cannot find that the Corps has adequately discharged its duties under that statute, it will remand the matter to the agency to prepare an Environmental Impact Statement.”

As water protectors encircled the entire camp in prayer on December 4, 2016, President Obama announced he was canceling the pipeline permits and ordering an Environmental Impact Statement.

Mike Faith, chairman of the Standing Rock Sioux Tribe, said: “After years of commitment to defending our water and earth, we welcome this news of a significant legal win.

“It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet. Perhaps in the wake of this court ruling the federal government will begin to catch on, too, starting by actually listening to us when we voice our concerns,” he said.

Stranger things have happened. On December 4, 2016, literally while thousands of us were linking arms in a giant prayer circle all around the water protectors’ camp (don’t call us protesters!), President Obama announced that he was canceling the pipeline permits and ordering an EIS. It was a joyous day. Even the sun came out for it.

Of course, Obama was a lame duck on that date. Moments after President Trump took office, he canceled Obama’s order, and the pipeline went through.

If re-ordering an environmental review sounds sort of familiar, it’s because shortly after the pipeline started to flow with fracked oil in 2017, a court ordered the Army Corps to reconsider the cursory environmental analysis it did do. The Army Corps took a perfunctory look at its analysis and said, “looks OK to us,” and that was that.

This is different.

The huge thing that’s different this time is that Judge Boasberg canceled the Dakota Access Pipeline permits while the Army Corps goes back to the drawing board and completes a full-blown EIS. Which will take some time.

#MniWiconi. Water is Life.

 

Leon Worden is president of SCVTV. His views are strictly his own.

 

It was cold.

 

 

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1 Comment

  1. jim says:

    Thanks Leon, for the update. And thanks for bringing this issue to us several years ago. There is a faint hope here that our legal jurisprudence may still help to save The Republic.

    Things have gotten a lot worse since then, and I won’t jump into the morass that we’ve allowed to happen in this missive.

    Just Thanks.

    Jim

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