DAPL Court Ruling a Mixed Bag: Reveals Deeply Flawed Environmental Justice Review, but Weak on Treaty Rights

A recent court ruling on the Dakota Access Pipeline (DAPL) is stunning for what is reveals about how the U.S. Army Corps of Engineers conducted its so called “environmental analysis” of the project.

The June 14 decision by U.S. District Court Judge James Boasberg will require the Corps to go back and do the analysis correctly. He left open the possibility that the court could shut down the pipeline until these issues are resolved. That decision will come at a later hearing.

The court ruling says the Corps analysis “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice.” Read more deeply into the decision, and it raises questions about whether the Corps is simply oblivious to the concept of environment justice or whether its staff willfully slanted the review to get the outcome it wanted.

(In a related matter, the Trump administration has proposed eliminating the Environmental Justice Program altogether and making deep cuts to other civil rights services. See this CNN story.)

According to the court decision on DAPL: “The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations.”

The problem with the Corps’ environmental justice analysis boils down to this: It drew such a tiny circle defining the project’s impact area that it excluded the Standing Rock Nation from consideration.

That’s right. The Corps’ environmental justice analysis only looked at the impact on a predominantly white community mostly upstream from where DAPL crossed under Lake Oahe. It did not consider the impact on the Lakota people of the Standing Rock Nation just downstream from the crossing — the community that would be impacted by any spill. Continue reading

Surveillance-Industrial Complex Unmasked in Leaked DAPL Documents

To the water protectors who tried to stop the Dakota Access Pipeline (DAPL), the fact that law enforcement and security firms coordinated efforts to undermine the camps is old news. For those less familiar, the news site The Intercept is providing new details on the behind-the-scenes surveillance and public relations operations by the government and private security.

The Intercept received leaked documents from a contractor who worked with TigerSwan, a private security firm hired by Energy Transfer Partners to coordinate DAPL security. The Intercept just published its second story in a three-part series.

TigerSwan is largely made up of special operations military veterans, (which tells you a lot about the approach Energy Transfer Partners wanted to take in the conflict). TigerSwan “was formed during the war in Iraq and incorporated its counterinsurgency tactics into its effort to suppress an indigenous-led movement centered around protection of water,” The Interept story said.

The story raises serious questions about law enforcement’s impartiality and the “Surveillance-Industrial Complex.” Continue reading

Leaked Documents: Private Security Used Anti-Terrorist Tactics Against Peaceful Water Protectors

Sign at Water Protectors Camp (2016) sending message to those conducting surveillance.

Leaked documents paint a disturbing picture about how a private security firm used anti-terrorism tactics against the water protectors who opposed the Dakota Access Pipeline (DAPL), according to a story in the news site “The Intercept.”

The private firm coordinated with local, state, and federal law enforcement to undermine the protest, the story said. “The documents also provide extensive evidence of aerial surveillance and radio eavesdropping, as well as infiltration of camps and activist circles.”

This news comes as DAPL is now fully operational, Standing Rock Chairman David Archambeau is found not guilty of protest-related crimes, and complaints are being investigated against Energy Transfer Partners for failing to follow the rules during DAPL’s construction.

The Monday report from The Intercept — Leaked Documents Reveal Counterterrorism Tactics Used at Standing Rock to “Defeat Pipeline Insurgencies” — is stunning. Here’s how it starts:

A shadowy international mercenary and security firm known as TigerSwan targeted the movement opposed to the Dakota Access Pipeline with military-style counterterrorism measures, collaborating closely with police in at least five states, according to internal documents obtained by The Intercept. The documents provide the first detailed picture of how TigerSwan, which originated as a U.S. military and State Department contractor helping to execute the global war on terror, worked at the behest of its client Energy Transfer Partners, the company building the Dakota Access Pipeline, to respond to the indigenous-led movement that sought to stop the project.

Internal TigerSwan communications describe the [water protectors’] movement as “an ideologically driven insurgency with a strong religious component” and compare the anti-pipeline water protectors to jihadist fighters.

The article is based on more than 100 internal documents leaked by a TigerSwan contractor, as well as more than  1,000 documents obtained through public records requests, the story said. Documents obtained “also suggest that TigerSwan attempted a counterinformation campaign by creating and distributing content critical of the protests on social media.”

Click here for the full story. For another take, check out this story in Consumer Affairs.

For more DAPL updates, keep reading.

Continue reading

DAPL’s First Leak, Minnesota’s Own Pipeline Problem

File photo.

Well, the Dakota Access Pipeline (DAPL) isn’t fully operational yet, but it had its first spill, 84 gallons of crude oil near one of its pump stations, according a story in The Guardian. It might not seem like a lot, but think what it would look like to take the hose off a gas station pump and hold the handle down so that it spilled enough gas to fill about eight sedans. (But in this case we’re talking crude oil.)

And this is when the line is brand new!

Energy Transfer Partners (ETP), the Texas-based company building DAPL, has other troubles out east. In a rush to finish its Rover natural gas pipeline in Ohio, Indian Country Today reports that ETP “spilled about two million of gallons of drilling materials in two separate accidents into two of Ohio’s few remaining wetlands.”

“Energy Transfer Partners has dumped millions of gallons of a milkshake-like substance into pristine wetlands,” said Jenn Miller, director of the Sierra Club of Ohio. “This will have massive impacts on the plant, fish and amphibian species there.”

One-third of Ohio’s endangered species rely on wetlands for habitat and survival, Miller said.

Click on the story link to see a photo of how bad the spill is.

Meanwhile, resistance to such projects continues. Indian Country Today reports on a unique alliance of Nebraska tribes, ranchers, and landowners that are resisting Keystone XL and other fossil fuel developments. Keystone XL will pass through traditional Ponca lands, lands that were taken from them. They still consider these ancestral lands as part of their culture and traditions.

On April 29, members of the Ponca Tribe began a remembrance walk to commemorate their forced removal from their traditional lands in the 1870s, the story said. The planned 12-day walk covered the 273 miles from Niobrara, Nebraska, to Barneston.

“Knowing how painful it was to have that land taken away from us, we can empathize with those farmers that own that land today. We know what it’s like to be told somebody’s going to take your property away,” said Larry Wright, Ponca Tribal Chairman of Nebraska. …

For the past three years, members of … various groups have been gathering in Neligh, Nebraska, to plant Ponca sacred corn where the pipeline’s route crosses the trail the tribe was forced to take away from their homeland. They sow the corn by hand, following principles of prayer rooted in a deep respect for the land.

Minnesota, you are next up in the efforts to stop pipelines from threatening our signature lakes and rivers. Enbridge, a energy transportation company, is proposing to abandon an old and failing tar sands pipeline through northern Minnesota and wants to install a new and larger pipeline, including a significant route change. The 337-mile pipeline, called Enbridge Line 3,  would pass through the Mississippi headwaters region and through traditional Anishinaabe wild rice areas.

The Minnesota Department of Commerce is expected to release a draft Environmental Impact Statement (EIS) Tuesday, May 16. The EIS should draw media attention and elevate the public debate over this project. There is expected to be a 60-day public comment period.  More information coming soon on how to get involved. For more background, see the Enbridge Line 3 Page of our blog.

As DAPL Construction is on Fast Track, Minnesota and Texas Also Face Pipeline Threats

“Energy Transfer Partners has finished drilling under Lake Oahe and will soon be laying pipe under the Missouri River reservoir,” according to a story by Minnesota Public Radio. As legal challenges to the Dakota Access Pipeline (DAPL) linger in court, the oil could start flowing in two weeks.

Meanwhile, Native peoples in West Texas are trying to stop an Energy Transfer Partners natural gas pipeline project that crosses under the Rio Grande. Minnesotans are gearing up to stop a proposed pipeline expansion that would increase the flow of high-polluting tar sands through the state.

Continue reading

Secret DAPL Analysis Withheld from Tribes: Government Memo Spotlights Flawed Process

In the waning days of the Obama administration, the top lawyer for the U.S. Department of Interior wrote about significant flaws in the permitting process for the Dakota Access Pipeline (DAPL) easement under the Missouri River at Lake Oahe. The government had not honored federal trust responsibilities to consult with Native nations. Worse, the government had kept key environmental analysis secret, unavailable for review by Native nations and the general public. Worse yet, some of the analysis was simply inaccurate — and since it was secret it couldn’t be challenged.

The 38-page memo is from Hilary Tompkins, the Department of Interior’s solicitor, to the Secretary. The conclusion is this:

[T]here is ample legal justification for the Corps to exercise its discretion to suspend or revoke the existing Section 408 permit and/or postpone a decision on the proposed easement conditional on additional analysis
and government-to-government consultation concerning the tribal-specific issues discussed in this Memorandum … If the Corps ultimately does decide to authorize the easement, additional tribal consultation is necessary to develop conditions for the authorization that will protect the Tribes’ rights and interests in and around Lake Oahe. (page 35)

Disturbingly, the Dec. 4 memo details problems with the government’s process that until recently have been hidden.

Continue reading

DAPL Rorschach Test: Pope Appears to Back Standing Rock While Pipeline Exec Sees Terrorists

Pope Francis appeared to back the Standing Rock Nation’s efforts to block the Dakota Access Pipeline (DAPL), “saying indigenous cultures have a right to defend ‘their ancestral relationship to the earth,'” according to a story published Wednesday in Reuters.

While [the Pope] did not name the pipeline, he used strong and clear language applicable to the conflict, saying development had to be reconciled with “the protection of the particular characteristics of indigenous peoples and their territories”.  …

Speaking in Spanish, Francis said the need to protect native territories was “especially clear when planning economic activities which may interfere with indigenous cultures and their ancestral relationship to the earth”.

Some comments on a listserve of Native American scholars and allies took the Pope to task for being a late comer, noting that the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP) passed in 2007. (In fairness to Francis, he did not become Pope until 2013.)

Pope Francis’ statement stands in stark contrast to an oil company executive who is comparing the DAPL protestors to terrorists, according to a Wednesday story in Minnesota Public Radio. Joey Mahmoud, executive vice president of Texas-based Energy Transfer Partners, made his comments at a hearing before a U.S. House energy subcommittee, it said. Continue reading