Trump's Bad Bet #1: DAPL

A Dakota Access Pipeline protest camp near Cannon Ball, January 24, 2017

Terray Sylvester/Reuters

UPDATE: Construction is complete.  Oil is flowing.  Was the action lawful - federal judge still to decide.

Energy Transfer Partners is seeking to construct a pipeline under Lake Oahe to transport oil from western North Dakota to refineries in Illinois. The pipeline would run for 1,172 miles and transport up to 570,000 barrels of oil per day. The Assistant Secretary of the Army decided that an Environmental Impact Statement was necessary to address the impact an oil spill could have on the Standing Rock Sioux Tribe who depend on Lake Oahe for their drinking water. Key documents regarding oil spill risk, response and environmental justice had been withheld from the Tribe and others. In addition, previous analysis had failed to address the Tribe's treaty rights and the government's obligation under the Mineral Leasing Act to protect subsistence fishing and hunting.  The Army Corps of Engineers initiated a public comment period to prepare the EIS on January 18, 2017. In an abrupt about-face, the Trump Administration shut down this comment period and granted Dakota Access an easement to construct the pipeline under Lake Oahe.  

President Trump is a businessman, so you’d think he would know a good bet when he sees one. Reversing Obama’s decision on the Dakota Access Pipeline isn’t.   

Here’s why:

  1. The tribes and others affected by the decision deserve a meaningful say. They didn’t get it. In January, the U.S. Army Corps of Engineers initiated a public comment period for the preparation of an Environmental Impact Statement. On February 7, the Army Corps shut down the public comment and announced that it would grant the easement to complete the pipeline.
  2. Trump broke the law. Agencies have to justify a reverse course. Here, the Army Corps didn’t.
  3. The National Environmental Policy Act requires agencies to analyze new information. Again, the Army Corps didn’t.  
  4. Trump ignored his own order. His own presidential memorandum requires conditions on the easement that are “necessary and appropriate.” Completing an Environmental Impact Statement is needed to determine such conditions.
  5. Additional analysis is needed to prevent and detect oil leaks. Existing analysis does not adequately address these issues. In fact, the Army Corps continues to keep critical risk analysis and spill response documents secret. And the risks are real: In December, as the Standing Rock Sioux and its allies resisted Dakota Access, a pipeline rupture—just 150 miles away—undetected by leak-detection systems spilled 176,000 gallons into a nearby creek.
  6. Further analysis is needed to protect reserved treaty rights. In a December 4, 2016, opinion, the Solicitor of the Department of the Interior concluded that "[l]ands taken to create Lake Oahe remain on-reservation." In addition to crossing under the lake, the pipeline crosses unceded Sioux territory. ​
  7. More analysis is needed to ensure compliance with the National Historic Preservation Act.
  8. Pipeline profits will benefit a few.
  9. Risk of harm is borne by many.
  10. The many will resist. Trump claims that he has received no calls to complain about Dakota Access. Take a minute to call him now.

What happens next:

  • With the easement to cross under Lake Oahe in hand, Energy Transfer Partners began drilling under the lake to complete the pipeline.  The company has completed construction and oil is flowing.  
  • A federal judge denied the Cheyenne River Sioux Tribe’s request to stop construction of the Dakota Access pipeline for now.  The Tribe unsuccessfully appealed the decision to the U.S. Court of Appeals in D.C.  The Cheyenne River Sioux have joined the Standing Rock Sioux's lawsuit against the Army Corps.  The federal district judge is now evaluating whether the pipeline approval was lawful.  If he finds it was not, he could shut the pipeline down.

About the Authors

Sharon Buccino

Director, Land & Wildlife program

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