Professor James Grijalva Guest Columnist on DAPL Issue
School of Law
Original Article from Jurist, April 11, 2017
As spring emerged on the northern plains in late March, news broke of unrelated but congenerous developments in the long running sagas of two oil pipelines proposed for the Midwestern United States. The Energy Transfer partnership completed construction of the Dakota Access Pipeline under Lake Oahe in North Dakota just upstream from the Standing Rock Sioux Tribe's reservation, and federal courts denied requests for injunctive relief, with Bakken shale crude oil expected to begin flowing at any moment. Over in Montana, the U.S. State Department opened the border for TransCanada's Keystone XL Pipeline, planned for moving Alberta's tar sands crude oil to refineries in the Gulf of Mexico, and the Indigenous Environmental Network promptly filed suit [PDF]. Both lawsuits stem from the unexpected election of Donald Trump, and his nearly immediate reversal of President Obama's decisions halting both pipelines.
Three South Dakota tribes downstream from the DA Pipeline crossing filed suit—the Cheyenne River, Yankton and Oglala Sioux Tribes—and the DC District Court consolidated the cases with Standing Rock. On March 7, the court denied a Cheyenne River request for an injunction under the Religious Freedom and Restoration Act, despite acknowledging "the Tribe is likely to suffer irreparable harm to its members' religious exercise if oil is introduced into the pipeline." The court found tribal success on the merits unlikely, and that Energy Transfer, which claims to be "one of the largest and most diversified investment grade master limited partnerships in the United States," would be substantially harmed financially and logistically from an injunction pending merits analysis.
Cheyenne River appealed to the DC Circuit Court of Appeals [PDF] on February 14, and unsuccessfully sought from the District Court an emergency injunction pending appeal. On March 18, the DC Circuit affirmed that latter denial [PDF] per curiae, concluding the Tribe had not met "the stringent requirements" for relief pending appeal. Meanwhile, Standing Rock and Cheyenne River have summary judgment motions pending before the District Court on a variety of treaty rights and environmental law claims.
Unlike the nearly completed DA Pipeline, the XL Pipeline is a proposed project. It stalled in November 2015 when the Obama State Department concluded that importing Alberta's tar sands crude oil would not contribute significantly to the economy or lower energy prices for Americans, instead, it would hinder the United States' global leadership on climate change and its movement toward a clean energy economy. Four days after his inauguration, President Trump invited TransCanada via Presidential Memorandum to resubmit its application and directed the relevant Departments to "expedite" review and decide within 60 days. Trump also issued an Executive Order directing federal agencies "streamline and expedite" environmental reviews of "high priority" infrastructure projects.
In two days TransCanada resubmitted its application, and two months later, on March 23, the Trump State Department announced its unsurprising decision [PDF]: the XL Pipeline is in the national interest. The Department found the project would "meaningfully support U.S. energy security by providing additional infrastructure for the dependable supply of crude oil." The Department noted that crude oil has continuing importance to the economy, the U.S. is still a net oil importer despite increased domestic production, and Canada is our best trading partner and a stable source of crude oil. The next day the State Department issued the Presidential Permit [PDF], and three days later the Indigenous Environmental Network--a grassroots organization headquartered in the U.S. but representing Indigenous Peoples worldwide-- filed suit [PDF] asserting violations of the National Environmental Protection Act (NEPA), the Endangered Species Act, the Migratory Bird Treaty Act and the Bald and Golden Eagle Acts.
The legal claims in both cases are too numerous and complex for a full analysis here. But mainly, both center around an alleged failure of genuine consideration of the projects' foreseeable negative impacts on the environment, Indian treaty rights and Indigenous human rights. Underlying these controversies is an important environmental justice question: to what extent will American society continue to tolerate sacrificing Indigenous cultural rights for short-term economic gains, especially from an outmoded energy source?
Curiously, although both projects are similar, the agencies' environmental analyses differed significantly. The XL Pipeline would transport about 830,000 barrels per day (bpd) of crude oil over 875 miles through three states, and the State Department did a full EIS (over 1,000 pages excluding appendices). The DA Pipeline will carry some 570,000 bpd over 1,100 miles through four states, but the Corps of Engineers did only an abbreviated Environmental Assessment (EA) on the DA Pipeline (just over 100 pages). The Corps reconsidered that decision when faced with the Sioux Tribes' NEPA suit, the presence of 10,000 Water Protectors encamped at the lake crossing, and several violent confrontations with corporate security guards armed with dogs and riot-like tools that drew international media attention. In the final days of Obama's term, the Corps issued a notice of intent to do a full EIS, Trump's memo to issue the lake crossing easement expeditiously caused the Corps to reverse course and cease further environmental review
The Sioux Tribes' NEPA claims against the abbreviated DA process are multifaceted and strong. While Administrative Law allows agencies to change course, they must confront contrary facts and conclusions that supported the former direction. The Corps did not confront the opinions of EPA and the Department of the Interior Solicitor that the EA had fundamental shortcomings requiring further investigation in an EIS. The Corps did not address the Tribes' expert reports documenting numerous EA flaws and gaps, including: dismissing impacts on Indian treaty rights without analysis, violating NEPA regulations for actions with impacts that are "highly controversial" and "highly uncertain", understating the risk of significant pipeline leaks, ignoring the inability of detection systems to identify slow leaks that could result in large oil discharges over time, inadequately analyzing spill risks, and depriving the public of comment by keeping the underlying spill modeling data secret.
Especially poignant is the Tribes' contention [PDF] the Corps' environmental justice analysis was "gerrymandered" and kept secret from the Tribes and public. The draft EA didn't even mention the Standing Rock Reservation less than a mile downstream from the proposed Lake Oahe crossing. The final EA "recognized" that fact, but rather than confront the health and cultural impacts of contaminating the Reservation's largest water body and its shorelines, the EA instead re-emphasized the pipeline's off-Reservation location, the expensive and high-tech nature of the horizontal drilling technique for putting the pipeline below the lake, and the very low likelihood of spills. Illogically, that same low risk of spills justified rejecting an alternate route upstream of the State Capitol of Bismarck, whose racial composition is overwhelmingly White. The Corps' explanation for dismissing the obvious EJ issue strains credulity: focusing narrowly on the site of the pipeline crossing, that rural county has fewer minorities than Bismarck, a city of nearly 70,000 people, so the agency asserted the Bismarck route would affect more minorities than the proposed route. Adding insult to injury, the EA defined the area of impact as the site crossing plus 0.5 miles downstream, and then compared the county that begins 0.55 miles downstream and encompasses the northern half of the Reservation (82% native) to conclude again that few minorities would be affected. EPA's and DOI's pointed criticisms of the Corps for not considering the downstream impacts on the Tribe and its citizens went unmentioned.
Indigenous environmental justice also pervades the Complaint recently filed [PDF] against the XL Pipeline permit, which alleges numerous NEPA flaws as well as statutory claims prohibiting the taking of endangered species, migratory birds and eagles. The XL EIS, like the DA EA, assumes tribal interests are minimal since the pipeline route (intentionally) avoids crossing any Indian reservation. Outside Indian country, the analysis properly focuses on identifiable traditional cultural properties, but does not recognize that modern Indigenous Peoples have important cultural connections to traditional lands beyond ceremonial sites and burial grounds. For example, the State Department identified no Indian treaty rights whose exercise might be affected by the pipelines, nor discussed modern cultural uses of wild game, fish or plants in the affected areas. And, treating the pipeline—whose sole purpose is carrying tar sands crude oil—as divorced from the extensive, destructive impacts of tar sands mining in northern Alberta, the EIS is completely silent on the cultural survival of numerous Canadian First Nations. (That silence is mirrored by the Canadian Government's own Environmental Assessment Act analysis.)
These EJ issues implicate international human rights. In its Declaration on the Rights of Indigenous Peoples, the United Nations recognized Indigenous Peoples' ability to maintain spiritual, religious and cultural traditions, and their connections to traditional lands and resources, as fundamental human rights, and exhorted nation-states to consult and cooperate in good faith when implementing legal and administrative procedures that may affect those rights. The UN has not yet spoken to the XL Pipeline controversy, although the lawsuit alleges failures of genuine consultation. At the Oceti Sakowin camp in North Dakota, an Expert Member of the UN's Permanent Forum on Indigenous Issues noted apparent violations [PDF] of the Declaration's consultation requirement (and duty to protect Water Protectors from violence) in November 2016, a theme also raised in the Sioux Tribes' litigation. In March 2017, the UN's Special Rapporteur on the rights of indigenous peoples said US consultation, while well intentioned, is "a confusing and disjointed framework that suffers from loopholes, ambiguity, and a general lack of accountability.
The XL EIS lists ostensibly extensive tribal consultations, and the DC District Court denied Standing Rock [PDF] a preliminary injunction in September in part because it found the Tribe had not availed itself of multiple opportunities for consultation with the Corps. But the court and the federal agencies approach consultation from a narrow, project-specific perspective. They ask if tribes can identify qualified, discrete geographic sites that might necessitate adjustments in proposed projects, say for example, by moving a pipeline half a mile to avoid an ancient archeological site.
Tribes certainly want to avoid actual destruction of culturally important places and resources. But tribes come to these project-specific discussions with the broader perspective that consultation is an exercise of government-to-government relations with the federal government that recognizes tribes' unique legal and political status as inherent sovereigns. And the larger context for those relations cannot be understood apart from Indigenous Peoples' historical trauma at the hands of the federal government. Federal administrators processing permit applications, and judges reviewing their actions, are likely not thinking about—indeed, may not even know about—the genocide, suppressed religion, forced religious indoctrination, cultural assimilation, relocation, education, and more—but tribal representatives can't forget so easily.
As the Great Plains Chairmen's Association informed the court [PDF], the traditional territory of the Great Sioux Nation was repeatedly taken by war, genocide, forced negotiation, and outright theft. It is not insignificant that the main federal actor in the DA Pipeline saga is the Corps of Engineers, an arm of the Department of the Army that killed so many tribal ancestors in the 19th century, and in the 20th century built multiple dams on the Missouri River flooding traditional cultural properties and the most fertile reservation lands for the benefit of non-Indian farmers and ranchers. The UN Special Rapporteur noted the sordid treatment of the Sioux Tribes and recognized "the painful history of Lake Oahe has resurfaced" because of the proposed pipeline crossing. In January 2017, the American Psychological Association urged the Corps to find an alternate route for the DA Pipeline, noting research has linked historical trauma to significant health disparities and increased risk of premature death. So when the Sioux Tribes were invited to "consult" on a pipeline carrying millions of gallons of someone else's oil through their traditional territories to markets elsewhere, it was hard not to see it as an yet another federal project benefitting others at the possible expense of tribal citizens.
That perception is very likely the main reason for the unprecedented tribal solidarity shown by the DA Pipeline protests and the first assembling of the Seven Council Fires perhaps since the stunning defeat of Custer in 1876. Some who camped at the river may have been more concerned with the intensive energy needs for mining Alberta's tar sands and fracking North Dakota's oil shale, and the Greenhouse Gases generated by our continued reliance on fossil fuels. But others were wondering what happened to the trust responsibility, which the US Supreme Court has nobly proclaimed imposes on the federal government "moral obligations of the highest responsibility and trust" toward Indian tribes. The Canadian Supreme Court, drawing on the country's continued affinity for royalty, has often declared that "the honour of the Crown is always at stake" in the government's dealings with Aboriginal peoples. That court says the fundamental objective of Canada's Aboriginal law is reconciliation between Indigenous and other peoples and their respective claims, interests and ambitions. So far, President Trump's approach on the DA and XL Pipelines reflects little concern for moral obligation, honor or reconciliation with the nation's Indigenous citizens.
James M. Grijalva writes and lectures on environmental law and federal Indian law, especially in the area of protection of the Indian country environment. He directs the Tribal Environmental Law Project and teaches American Indian law, property law, environmental law and administrative law at the University of North Dakota School of Law.
Suggested citation: James M. Grijalva, Resistance, Resilience and Reconciliation, JURIST - Academic Commentary, Apr. 12, 2017, http://jurist.org/forum/2017/4/James-Grijalva-resistance-resilience-and-reconciliation-indigenous-human-rights-to-environmental-protection-in-a-frenzy.php
Cohen, Ben, "Professor James Grijalva Guest Columnist on DAPL Issue" (2017). UND News Archive. 1501.