The Army Corps of Engineers announced yesterday (December 4) that it would not grant easement for the Dakota Access Pipeline to cross beneath Lake Oahe in North Dakota after recognizing the need to examine alternative routes. It was a major victory for the thousands of water protectors who have been camped out since April 1 in order to defend the water and sacred sites of Native people in the region.
"Although we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it's clear that there's more work to do," said Jo-Ellen Darcy, the Army’s assistant secretary for civil works, in an online statement. "The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”
This decision came the day before the Corps was planning to evacuate the Oceti Sakowin Camp north of Cannonball River. It’s not clear if this evacuation is still in order, but, according to Facebook and Twitter posts, occupiers are hesitant to leave the camp in case something changes.
LaDonna Brave Bull Allard, who founded the Sacred Stone Camp in North Dakota, wrote:
Even after today’s small victory we can say thanks but remember we have been down this road before. I know that Dakota Access will continue to work. The lights are still on above the camp, Morton County has not removed the barriers, they are moving in troops by Fort Rice. They think these people will leave the camps and we will be able to continue to work. Never trust these crooks we have already seen what they will do to our people. Make them accountable we need everyone on the ground until every pipe I removed. We stand.
In possible defiance of the Army Corps decision, Energy Transfer Partners, which is overseeing the project, put out a statement yesterday clarifying its commitment to completing the pipeline without any additional rerouting. The company also called the Corps’ decision a “purely political action” and criticized President Barack Obama’s administration for rejecting the legal process which Energy Transfer Partners used to get the project underway.
Per the statement:
For more than three years now, Dakota Access Pipeline has done nothing but play by the rules. The Army Corps of Engineers agrees, and has said so publicly and in federal court filings. The Corps’ review process and its decisions have been ratified by two federal courts. The Army Corps confirmed this again today when it stated its “policy decision” does “not alter the Army’s position that the Corps’ prior reviews and actions have comported with legal requirements.”
In spite of consistently stating at every turn that the permit for the crossing of the Missouri River at Lake Oahe granted in July 2016, comported with all legal requirements, including the use of an environmental assessment, rather than an environmental impact statement, the Army Corps now seeks to engage in additional review and analysis of alternative locations for the pipeline.
In potentially bad news for #NoDAPL water protectors, Reuters reported that President-Elect Donald Trump said Thursday in a briefing note sent to campaign supporters and congressional staff that he supports the completion of the project—and that this has nothing to do with his personal investments of up to $1 million in the project. "Those making such a claim are only attempting to distract from the fact that President-elect Trump has put forth serious policy proposals he plans to set in motion on Day One," reads the note, according to Reuters.
Trump’s administration will have legal options to reverse this decision, says environmental attorney Justin Savage, who served in the Department of Justice’s Environmental Enforcement Section for nearly a decade before heading to private law firm Hogan Lovells.
If Energy Transfer Partners files an administrative appeal asking the Corps to reconsider its denial, President Trump—not Obama—would oversee such an appeal. In addition, if the company decides to sue the Army Corps, Trump would be in office when it was time to settle the lawsuit, Savage explains. “The bottom line is that the next administration will have the ability to undo the decision,” he says.
Pipeline opponents won’t be able to claim that Trump reversed the decision improperly either, Savage argues. Obama’s White House originally granted all permits and gave Energy Transfer Partners the green light—and it was not until sustained protests that the administration took steps to delay construction.
This makes it more difficult, from a legal stand point, Savage says, for water protectors to argue that the president-elect reversed the decision for political reasons. Trump’s administration could counter that they are only doing what President Obama originally wanted. “If you’re a DOJ lawyer,” Savage says, “this case may twist you into a pretzel because their position is going to have to change several times. It’s a very interesting case.”
Still, opponents of the 1,172-mile-long pipeline, which is nearly completed, did rejoice—at #NoDAPL camp sites in North Dakota and afar via social media. At least one celebrity who has supported the movement since the very beginning was cheerful on Twitter:
soooo how many #NoDAPL babies you think are going to be made tonight?!
— Shailene Woodley (@shailenewoodley) December 5, 2016
Other celebrities were more critical of how long the administration took to make this decision:
Per U.S. tradition, took WAAAY too long for gov't leadership to stop this disgusting, tyrannical violence. UNITY still has value. #NoDAPL
— jesseWilliams. (@iJesseWilliams) December 5, 2016
— Rosario Dawson (@rosariodawson) December 4, 2016
Overall, people across the globe celebrated the win, even if it’s just a temporary one.
Sioux chmn thanks feds for 'taking steps to correct the course of history.' What happened today will reverberate for a long time #NoDAPL
— Bill McKibben (@billmckibben) December 4, 2016
power to the people. #NoDAPL
— deray mckesson (@deray) December 5, 2016
— Linda Sarsour (@lsarsour) December 4, 2016
We sing our victory songs tonight, but stay vigilant for the next phase of the fight. #TrumpWeSeeYou
— Dallas Goldtooth (@dallasgoldtooth) December 5, 2016