Sipa via AP Images
Native Nations Rise march in Washington, D.C. against the construction of the Dakota Access Pipeline in Portland, Oregon, March 2017.
For Native Americans, battles for control over ancestral homelands and the natural resources that happen to be inconveniently located under them are a constant, as whites continue to bulldoze over indigenous rights and interests. Against the backdrop of Black Lives Matter and President Trump’s neo-Confederate holiday crusade, three oil pipeline decisions spotlight Indian tribes’ fights against environmental racism in new and powerful ways. All were victories for the tribes.
The U.S. District Court for the District of Columbia responded to the Trump administration’s move to accelerate Dakota Access Pipeline permitting with an unexpected decision: a shutdown. The court recently ruled that the Army Corps of Engineers failed to comply with the National Environmental Policy Act (NEPA) and complete an environmental impact statement for the easement, a process that could take up to three years or longer (even though the Corps says it can have it done in a little over a year.)
“[G]iven the seriousness of the Corps’ NEPA error,” Judge James E. Boasberg wrote, “the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease.”
“It’s a blockbuster decision,” says Noah Sachs, a professor at the University of Richmond School of Law, who adds that it is rare for an existing pipeline to be shut down for NEPA violations.
The plaintiffs, the Standing Rock Sioux and the Cheyenne River Sioux, feared that oil spills could contaminate drinking water and spoil hunting and fishing grounds. The tribes’ 2016 response to the construction, a peaceful occupation in the path of the project, galvanized tribes (many participants were veterans of earlier campaigns against the Keystone XL pipeline project) from all over North America and produced brutal reprisals from highly militarized local law enforcement and private security guards.
“They decided, we’ll just go over to Standing Rock, those Indians ain’t going to do nothing. “Well, we did.”
The siting of the pipeline generated controversy early on, as local and federal officials failed to properly consult the tribes and evaluate threats to water supplies in the region. One proposed route would have taken the pipeline north of Bismarck, which is 90 percent white, and its water supply was eliminated by the Corps, which Native leaders have consistently criticized. “Systemic racism did not allow the mayor and the city council to say we have the same concerns as the Standing Rock Sioux Tribe, how do we come together?” says Judith Le Blanc, director of the Native Organizers Alliance, a national advocacy group based in Seattle.
Joye Braun, an Indigenous Environmental Network community organizer and a leader of the protests against DAPL and Keystone XL, is blunt about Bismarck’s role. “They decided, we’ll just go over to Standing Rock, those Indians ain’t going to do nothing,” she says. “Well, we did.”
According to Braun, a member of the Cheyenne River Sioux Tribe, the court’s decision was a validation of the tribes’ sovereignty and their stewardship over bodies of water that nearly 20 million people in the region rely on. She also notes that the victory puts North Dakota officials on notice to start working on embracing a just transition from fossil fuels and other economic-development opportunities provided by safer energy options like wind and solar.
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The Corps’s environmental studies will take anywhere from 13 months to three years (or more) to complete, so the district court decision does buy the tribes time, in a volatile energy market made even more uncertain by the pandemic-induced reduction in demand. (Energy Transfer Partners, the pipeline developer, plans to appeal the court’s decision.)
It’s unclear if and how the markets will rebound in the post-pandemic order, particularly as states continue their march toward net-zero carbon emissions targets and energy generation predicated on renewables. These factors will determine whether DAPL carries oil after its shutdown.
The Supreme Court followed up with a second win for the region’s tribes, denying the Trump administration’s request to continue construction on the Keystone XL pipeline while the Ninth Circuit Court of Appeals hears challenges to the project. A federal district court judge had ruled that the Trump administration had violated Endangered Species Act provisions requiring consultations with federal wildlife agencies.
Neither court decision spells the end for DAPL or Keystone XL, but additional delays can create their own momentum and force energy companies to reassess whether any individual project merits additional investments, especially during this period of coronavirus-generated economic dislocation. Pressure from environmental and indigenous groups is making it cost-prohibitive to build new infrastructure to carry fossil fuels, opening up an important new front in the climate battle.
For example, even after a Supreme Court decision that allowed them to proceed with construction, Duke Energy and Dominion Energy decided to abandon the Atlantic Coast Pipeline, once the $4 billion project ballooned to $8 billion, largely due to legal actions brought by environmental groups. Current low gas prices, historic cuts to production, and flat projections did not help matters.
Like Keystone XL and DAPL, the Atlantic Coast Pipeline project involved disputes over waterways and marshes, which are increasingly becoming flashpoints for conflict across the country. The ACP would have crossed 51 state-controlled waterways. In an article for the Prospect last year, Sachs noted that environmentalists opposed to the pipeline have long cited the dangers to those resources along with climate change risks and threats to the iconic Appalachian Trail. (The three tribes whose lands would have suffered some of the deepest impacts—the Lumbee, the Coharie, and the Haliwa-Saponi—have not been federally recognized and had limited recourse to legal remedies.)
The Trump administration has waged an assault on NEPA and other federal environmental regulatory protections to bolster “critical infrastructure” fossil fuel investments. The effort has been aided by legislation in South Dakota and three other states directed at indigenous people and their allies that criminalizes protest against gas or oil pipelines. It’s hard not to miss who the targets of such measures are when pipeline projects often avoid white areas and bulldoze their way through communities of color. But Native Americans fought back and won this week. For Braun, “it puts the tribes front and center, which is very, very rare.”
