Professor James Grijalva Guest Columnist on DAPL Issue

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 Sakowi

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