Washington Watch: Social Media-Fueled Protests

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I’d like to tell you a story of social media-fueled protests by Native Americans and climate activists against the development of an oil pipeline, identify the key players, describe the legal actions associated with the protests, and offer a few observations. At issue is the Standing Rock Sioux Tribe’s (Tribe) attempts to halt construction on the $3.7 billion Dakota Access Pipeline (DAPL), which would transport approximately 470,000 barrels/day of Bakken crude more than 1,100 miles from North Dakota to existing pipeline infrastructure near Patoka, Illinois, where shippers would have access to markets and refineries. Protestors temporarily delayed work on an important pipeline water crossing, but seek much more – an injunction staying the future construction. The case is now pending before the United States Court of Appeals for the District of Columbia Circuit, the second most powerful court in the country.

Standing Rock Sioux Tribe

The Tribe is a successor to the Great Sioux Nation, which in the mid-19th century entered into two treaties that ceded a large portion of their homeland, but reserved certain land rights. In 1889, however, Congress stripped away portions of the large Sioux reservation, resulting in nine smaller Sioux reservations, including the Standing Rock Sioux Tribe. Sixty years later, in 1958, the Corps (without the consent of the Tribe) built a dam on the Missouri River near Pierre, South Dakota, which created Lake Oahe and permanently flooded 56,000 acres of bottomland on the Standing Rock reservation. Today, the Tribe’s reservation consists of approximately 3,500 square miles stretching from just south of Bismarck, North Dakota to just north of Pierre, South Dakota and has a population of fewer than 9,000 people.

Dakota Access Pipeline

DAPL is an oil pipeline being developed by Dakota Access LLC (Dakota Access), which in turn is owned by Energy Transfer Crude Oil Company LLC. Today, most oil production from North Dakota’s Bakken and Three Forks formations is shipped on rail cars and trucks because of insufficient pipeline capacity. DAPL would resolve the pipeline shortage and provide producers with a safer and more cost-effective way for their North Dakota sweet crude to reach markets.

DAPL is sized to transport up to 570,000 barrels/day of crude (about half of North Dakota’s oil production) approximately 1,170 miles through a pipeline that varies in diameter from 12-, 20-, 24-, and 30-in. traverses four states. Where possible, DAPL’s route parallels existing pipelines, power lines or roads. Eventually, about half of the Bakken production will flow through pipeline. DAPL has created up to 12,000 construction jobs and will result in 40 permanent jobs. Once complete, it will generate each year $55 million in property taxes for North Dakota, South Dakota, Iowa and Illinois. DAPL will reduce producers’ need to rely on rail transportation, and free up rail cars for agricultural use.

Regulation

Under the Natural Gas Act, the Federal Energy Regulatory Commission authorizes the construction of an interstate natural gas pipeline; with that authorization the pipeline receives the right of eminent domain, that is, the ability to condemn the land needed for the approved route. But oil pipeline regulation is different: oil pipelines are common carriers (like railroads) and, as a general matter, their construction requires minimal permitting.

Indeed, DAPL is no exception: almost the entire pipeline route is over private land; only 3 percent of the pipeline route is subject to federal permitting of any kind. As such, the bulk of the pipeline has already been placed in the ground, backfilled and the soil reclaimed. Almost all of the clearing and grading has been done in North Dakota, except for the crossing leading up to the west side of Lake Oahe, a man-made lake southwest of Bismarck.
However, the federal government does regulate construction activities in regulated waters along the pipeline route. Specifically, the Army Corps of Engineers (Corps) issues permits under the Clean Water Act and/or the Rivers and Harbors Act. On July 25, 2016, the Corps issued to Dakota Access a general permit (Nationwide Permit 12), which authorizes “certain activities that have minimal individual and cumulative adverse effects on the aquatic environment,” such as the construction, maintenance and repair of utility lines and access roads. The Corps also issued what is known as a Section 408 Permit allowing the easement for Dakota Access to lay a pipeline on federal land adjacent to and under Lake Oahe, but never perfected the permit by actually writing
the easement.


This map is being reproduced with the consent High Country News, for which the author is very appreciative.

This map is being reproduced with the consent High Country News, for which the author is very appreciative.


Legal Challenges and Protests

On July 27, 2016 (two days after Dakota Access received Nationwide Permit 12), the Tribe filed with the federal district court in Washington, D.C., a complaint challenging the Corps’ actions and requesting that the court enjoin Dakota Access from further construction. The Tribe, which is represented by Earthjustice (“the nation’s original and largest nonprofit environmental law organization”), did not allege that Dakota Access violated the law, but instead argued that the Corps had erred, claiming that (1) Nationwide Permit 12 authorizes discharges into federally regulated rivers, streams and wetlands without sufficiently protecting Indian cultural resources along DAPL’s route (not just the water crossings) in violation of the National Historic Preservation Act; and (2) all water-crossing authorizations issued by the Corps be vacated to protect, among other things, the Tribe’s
drinking water.

While the complaint was pending, Dakota Access scheduled construction activities near the Lake Oahe crossing (about a mile from the reservation) on Aug. 10, 2016. But work could not occur because of resistance from Tribe protesters and related individuals. In ensuing days, the size and scope of the protests increased, forcing pipeline contractors and even law enforcement officers to withdraw. Ultimately, the protestors’ ranks swelled to 7,000, comprised of Native American communities and climate activists from all over the country; they camped out on federal land in tepees and tents; and although generally peaceful, violence and property destruction occurred, and DAPL construction was delayed.

The protestors camped out on federal land just south of the Cannonball River near Lake Oahe at a site they named the Sacred Stone Camp. That site was not big enough for all the protestors; and an overflow site north of the Cannonball River was also used. The Corps did not eject the protestors for trespass. Instead, the Tribe filed for a special use permit for both Sacred Stone and the overflow camps. During this time tensions flared: protestors prevented construction by chaining themselves to excavation equipment and Green Party presidential candidate Jill Stein allegedly spray-painted construction equipment during a protest, for which she was charged with misdemeanor counts of criminal trespass and criminal mischief and a still pending arrest warrant issued.

On Sept. 9, a federal trial judge in Washington, D.C., rejected the Tribe’s request for a preliminary injunction based on a claim that the Corps had not sufficiently consulted with the Tribe and found that the applicable regulations “demand only that the Corps make a ‘reasonable and good faith effort’ to consult on identifying cultural properties. . . .” According to the judge, the Corps repeatedly tried to consult with the Tribe, but the Tribe repeatedly refused to meet or scheduled meetings and then did not appear.

Unhappy with the trial judge’s order, the Obama administration stepped in hours later and took unilateral action. The Corps, the Department of the Interior and the Department of Justice issued a “Joint Statement” (1) indicating that the Corps would not grant to the necessary easement to drill under the Lake Oahe, until after the Corps reviewed its permitting decision; (2) asking Dakota Access to voluntarily stop pipeline construction within 20 miles of each side of the lake; and (3) inviting Indian tribes to establish “formal, government-to-government consultations” to improve the disputed processes.

On Sept. 12, the Tribe filed an appeal with the DC Circuit and requested an emergency injunction pending appeal. On Sept. 16, the court granted the request and temporarily halted construction on 20 miles either side of Lake Oahe. On Oct. 5, a three-judge panel heard oral arguments on the Tribe’s emergency stay request. The Tribe claimed that cultural artifacts and burial grounds along the pipeline’s path are at risk because the Corps did not consider the indirect effects of its approval of the pipeline’s water crossings. According to reports, some of the judges were “flummoxed” by the Tribe’s argument, and was unsuccessful in eliciting a response by the Tribe’s lawyer to the question, “How far down the pipeline route do you look?” Conversely, government lawyers recognized the Corps’ requirement to consider indirect effects, but argued the Corps reasonably considered the effects within a one-mile radius of work areas related to the proposed crossing.

On Sept. 17, the Corps issued the special use permit to permit protestors to maintain their Sacred Stone Camp, but suggested that protestors in overflow camps relocate or obtain liability insurance. The protestors have never left the overflow camp and apparently never obtained insurance to cover the damage left in their wake.

On Oct. 9 the DC Circuit denied that Tribe’s emergency stay request pending appeal because, among other things, the Tribe could not clearly show that a “substantial likelihood of success on the merits.” The DC Circuit also noted: “A necessary easement still awaits government approval — a decision Corps’ counsel predicts is likely weeks away; meanwhile, Intervenor DAPL has rights of access to the limited portion of pipeline corridor not yet cleared where the Tribe alleges additional historic sites are at risk.” Notwithstanding, the DC Circuit ruling, on Oct. 10, the Corps renewed its request for Dakota Access to voluntarily stop construction on private land within 20 miles of Lake Oahe.

At this juncture, the story has no ending. Three issues remain outstanding. First, the Corps has yet to issue Dakota Access a written easement. No one expects a decision until after the election. Second, the Corps has yet to grant the Tribe a special use permit for the overflow camp or, alternatively, remove the protestors from the federal land. Perhaps the Corps believes the bone-chilling, North Dakota winter will be the most effective means of dispersing the protestors. Third, the DC Circuit still needs to decide whether affirm or reverse the trial judge’s denial of the injunction. It’s unclear when that decision will be issued.

Observations

First, as a general matter, the Tribe’s most compelling legal concerns focus less on environmental issues, but more on the notion that a sovereign nation can reasonably expect to be consulted on construction near tribal lands. Indeed, this may, in part, explain the widespread support of the Tribe from Native Americans across the country. On this issue the Tribe’s position seems strong and unassailable. However, the Tribe’s actions during the consultation process undercut its position, as noted by the trial judge:

The Corps has documented dozens of attempts to engage Standing Rock [the Tribe]in consultations to identify historic resources at the Lake Oahe and other PCN crossings. Suffice it to say that the Tribe largely refused to engage in consultations. It chose instead to hold out for more — namely, the chance to conduct its own cultural surveys over the entire length of the pipeline.

Notwithstanding the above, no one would warmly embrace the notion of a construction project on their neighbor’s land, especially if the project could damage your property and potentially harm your drinking water or irrigation system. For your neighbor to begin the project without first talking to you would surely cause some consternation. And, his knocking on your door while you are away, or leaving you a text message providing notice would likely provide little comfort. At bottom, both the Federal government and the tribes will need to do better in the future.

Second, the Tribe has expressed concerns that any leak of crude transported by DAPL could harm the quality of its water supply — Lake Oahe. Concerns with water quality are reasonable and should be addressed. However, it appears that many of the Tribe’s concerns have been addressed. To begin, Lake Oahe is not an ancestral lake of significant cultural importance, but rather a man-made lake created in the 1960’s. The lake crossing would be accomplished using directional drilling, which will place the pipeline at least 90 ft beneath the lake bed with no disruption of the lake’s waters or banks. No tribal lands would be directly impacted: the pipeline’s crossing would begin on private land and emerge on the other side of the lake on private land. Further, the land near the water crossing is already subject to utility easements: the tribal and other protestors gather under high voltage transmission lines and above a natural gas pipeline that were built years ago. Moreover, it’s been reported that in the next few months, the Tribe will move its water supply intake to Mobridge, South Dakota, about 45 miles south of the current intake and 70 miles south of the DAPL crossing.

Third, the future of DAPL is now in doubt.  The Corps has yet to provide Dakota Access with a written easement for the Lake Oahe crossing. And Nationwide Permit No. 12 is only valid through March 18, 2017: the longer construction activity is delayed, the less likely Dakota Access will be able to complete the water crossing before the permit expires. Compounding this problem, the Joint Statement referenced a need to reconsider previously issued permits in light of the requirements of the National Environmental Policy Act (NEPA), which directs federal agencies to evaluate environmental risks when approving a project. Just a few months ago, the White House’s Council on Environmental Quality decreed that, as part of their NEPA review process, all federal agencies should account for the costs of greenhouse gas emissions. This could provide the Administration with an opportunity to further delay the DAPL thwart another oil pipeline (the first being Keystone XL) opposed by environmental and climate activists.

Fourth, the Tribe, unable to convince the Corps and a federal court of the efficacy of their claims, ultimately prevailed in persuading the Obama Administration, especially after the protests grew larger and were joined by climate activists. This does not portend well for the rule of law and the ability of energy companies to rely on the permits issued by the Federal government, especially if permits involve environmental issues favored by the Administration and championed by the climate movement. At the end of the day, all stakeholders would benefit from the Federal government developing, adhering to, and enforcing legal rules and regulations for the development of energy projects.

Finally, social media played an important role in allowing the Tribe to keep its members apprised of events and recruit support from the neighboring (and even distant) tribes and environmental/climate activists. The large number of protestors and coordinated actions would not likely have occurred before the advent of Facebook, Twitter and Instagram. Like it or not, other organizations that oppose energy projects will likely be able to take a page out of the Tribe’s playbook. If these protests could happen in North Dakota (my home state), they can happen anywhere.  Indeed, on Oct. 11, climate activists, proclaiming solidarity with DAPL opponents, tampered with the emergency valves of five oil pipelines that carry Canadian crude into the United States. These actions will necessarily compel project developers, pipelines, the Corps, and law enforcement to take additional steps to prepare for and guard against protests and worse. If this is our “Brave New World,” I’ll take the old one.

Washington Watch is a bimonthly report on the oil and gas pipeline regulatory landscape. Steve Weiler is a partner at Stinson Leonard Street LLP in Washington, D.C. Contact him at steve.weiler@stinson.com.

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