The Dakota Pipeline Protests: Where They Started and Where They Are Going (Hint: Nowhere)

The Dakota Pipeline Protests: Where They Started and Where They Are Going (Hint: No Where)

by Kate McCormick, Staff Contributor

As temperatures continue to drop well below freezing in Cannon Ball, North Dakota, between two and three thousand protesters huddle in their “semi-permanent shelters” in an attempt to stay warm.[1] Camping at the edge of the Standing Rock Sioux Tribe Reservation,[2] these “water protectors,” as they have come to be known,[3] hope to halt the construction of the Dakota Access Oil Pipeline (DAPL)—“a 1,172-mile conduit slated to carry crude oil from North Dakota to southern Illinois.”[4] Over the past few months, the water protectors have drawn attention from not only across the country but the entire world, as they have clashed with local police forces.[5]

How Did This All Happen?

Aiming to protect and rehabilitate the nation’s rivers, lakes, and streams, Congress passed the Clean Water Act (CWA) in 1972.[6] Under the law, the US Army Corps of Engineers (USACE) may grant permits to those discharging dredge and fill materials into “navigable waters,” the class of waterways protected by the CWA.[7] In July of this year, USACE granted a permit to Energy Transfer Partners to build the DAPL, two years after the company had announced its plan to build the $3.8 billion project.[8]

The process for obtaining such a permit is usually relatively extensive: under § 404 of the CWA, USACE is required to issue public notice to allow for comments from the community, to which the agency must respond. In some instances, USACE also generates an Environmental Assessment (EA) that considers the extent of the project’s potential environmental impacts.[9]

The building process for the DAPL began in February of 2015, when USACE sent a letter to the Tribal Historic Preservation Office (THPO), with whom USACE is required to consult if a project has the potential to impact nearby tribes.[10] At risk is the Sioux Tribe’s drinking water intake, just downstream from the pipeline’s proposed route.[11] Given this risk, the THPO responded to USACE by “requesting a full archaeological investigation… which allegedly [went] unreturned.”[12] Despite multiple attempts by the Tribal Chairman to consult with USACE regarding concerns about “significant and unevaluated properties” on the site and continued requests for further investigation into these concerns, USACE published an EA stating that “the Standing Rock THPO had indicated to DAPL that the Lake Oahu site avoided impacts to tribally significant sites.” But in fact, other tribes, the U.S. Environmental Protection Agency, the American Council on Historical Preservation, and the U.S. Department of Interior had submitted critical letters and concerns.[13]

Despite all of this, in April of this year, USACE concluded its investigation, finding that “no historic properties are affected,”[14] finally issuing its July permit as a fast track permit allowing for the construction of the pipeline through four states.

What’s Actually Going On at Standing Rock, and Why Should We Care?

Opponents of the DAPL argue that the pipeline poses a threat not only to the tribe’s water supply, but also to “that of millions of people downstream from the pipeline’s proposed crossing under the Missouri River.”[15] Protesters also argue that the pipeline would be “inconsistent with the United States’ climate goals [by locking] in greenhouse gas emissions in an amount equivalent to that of 30 coal plants.”[16]

As for the Sioux Tribe and its land, since the beginning of construction, Energy Transfer Partners’ project has already damaged some of the “tribe’s sacred and cultural rights, including burial sites.”[17] Further pursuit of the DAPL exacerbates a long-standing pattern of injustice against Native Americans in our country.[18] In addition to Native Americans, other landowners are protesting their property being taken from them. In Iowa, “landowners and farmers are resisting handing over their land to Dakota Access with a lawsuit defending their property rights from eminent domain abuse.”[19]

As result, thousands have come together on the outskirts of the Sioux Tribe’s reservation in an effort to physically halt the construction, protect Native American rights, and combat the effects this project would have on climate change. Protesters range from local tribes and governments to native people from across the continent and environmentalists from around the world. The protests are “an opportunity to not only build momentum for the movement and attract media attention, but also for prayer, ceremony, and celebration” of the Native American culture and practices.[20]

Since the camp has been settled and continues to grow, there have been consistent clashes between protesters and local police, who have unleashed tear gas, used water cannons in freezing temperatures, and fired rubber bullets into crowds.[21] As videos of such incidents continue to circulate, outcries against law enforcement for use of excessive force and human rights violations have grown louder, as has opposition to the continued construction of the pipeline itself.[22]

What’s Going to Happen Now?

Because of the media attention that is being focused on the protesters, both Congress and the USACE have finally begun to take steps to rectify the situation at Standing Rock. On November 14th, USACE announced that it would delay the construction of the DAPL as a result of the need to conduct additional discussion and analysis, including inviting the Sioux Tribe to the talks.[23] Sen. Cory Booker sent a letter to Attorney General Loretta Lynch urging the U.S. Department of Justice “to open an investigation into the tactics used by police against peaceful protesters.”[24] Sen. Al Franken, in another letter to Lynch, drew attention to the trauma Native Americans have already experienced, and reiterated that the “tactics against protesters exercising their Constitutional rights threaten to add another layer of trauma to these communities.”[25] Other Democrats, Bernie Sanders among them, have issued a letter to the President, urging him to suspend the construction and compel USACE to complete a full environmental impact statement.[26] As more stories of injustice circulate, opposition to the DAPL continues to grow throughout the nation and across the world.

Despite this progress, USACE is demanding that the protesters leave the land that is designated for construction.[27] Additionally, “other members of the Senate remain vocally opposed to the presence of protests on federal lands — including the senators who theoretically represent many of the water protectors at Standing Rock.”[28] Energy Transfer Partners has said it is “optimistic about what a Trump presidency will mean for the pipeline’s construction,” since the President-elect is an investor in the company and has endorsed the revitalization of the coal and oil industry.[29]

Regardless, the protesters at Standing Rock have no intention to end their fight or leave their camps, despite the cold winter approaching. “We are wardens of this land. This is our land, and they can’t remove us,” protestor Isaac Weston, an Oglala Sioux member from South Dakota, told The Associated Press on Saturday. “We have every right to be here and protect our land and to protect our water.”[30]

[1] Daniel A. Medina, North Dakota Governor Order Pipeline Protesters to Leave, Citing Winter Weather, NBC News (Nov. 28, 2016), http://www.nbcnews.com/storyline/dakota-pipeline-protests/north-dakota-governor-orders-pipeline-protesters-leave-citing-winter-weather-n689366.

[2] Terray Sylvester, At Camp with the Standing Rock Pipeline Protesters, Outside Online, https://www.outsideonline.com/2114966/camp-standing-rock-pipeline-protesters#slide-1.

[3] Phil McCausland, Dakota Pipeline Protesters Vow to Stay Despite Army Corps’ Order, NBC News (Nov. 27, 2016), http://www.nbcnews.com/storyline/dakota-pipeline-protests/army-corps-engineers-orders-dakota-pipeline-protesters-abandon-camp-n688476.

[4] Alexander Sammon, A History of Native Americans Protesting the Dakota Access Pipeline, Mother Jones (Sept. 9, 2016), http://www.motherjones.com/environment/2016/09/dakota-access-pipeline-protest-timeline-sioux-standing-rock-jill-stein.

[5] Id.

[6] 33 U.S.C. § 1251 (1987).

[7] Solid Waste Agency of N. Cook County v. United States Army Corps of Eng’rs, 121 S. Ct. 675, 676 (2001).

[8] Seattle Times Staff, What You Need to Know About the Dakota Access Pipeline (Oct. 26, 2016), http://www.seattletimes.com/seattle-news/environment/what-you-need-to-know-about-the-dakota-access-pipeline/.

[9] Dakota Access Pipeline, powershift.org, http://powershift.org/sites/wearepowershift.org/files/resources/NoDAPL.Fact%20Sheet.Action.pdf.

[10] Sammon, supra note 8 (under NEPA, USACE is required to consult with the THPO).

[11] Lynda Mapes, Dakota Access Pipeline Battle Also Playing Out in Court, The Seattle Times (Oct. 28, 2016), http://www.seattletimes.com/seattle-news/environment/dakota-access-pipeline-battle-also-playing-out-in-court/.

[12] Sammon, supra note 5.

[13] Id.

[14] Id.

[15] Seattle Times Staff, supra note 7.

[16] Dakota Access Pipeline, supra note 11.

[17] Sammon, supra note 5.

[18] Andrew Revkin, The Core Issue in the Dakota Pipeline Fight is Sioux Rights, Not Oil, The New York Times (Nov. 7, 2016), http://dotearth.blogs.nytimes.com/2016/11/07/the-core-issue-in-the-dakota-pipeline-fight-is-sioux-rights-not-oil/?_r=0 (for an extended discussion of Native American Rights violations, look to this article, or to http://www.npr.org/sections/codeswitch/2016/11/22/502068751/the-standing-rock-resistance-is-unprecedented-it-s-also-centuries-old).

[19] Dakota Access Pipeline, supra note 11.

[20] Sylvester, supra note 2.

[21] Protesting the Dakota Access Pipeline, Yahoo! News (Nov. 21, 2016), https://www.yahoo.com/news/protesting-north-dakota-pipeline-153348604.html.

[22] Morgan Brinlee, What is Happening at Standing Rock? The Dakota Access Pipeline Protests Continue Despite New Winter Challenges, Bustle (Nov. 24, 2016), https://www.bustle.com/articles/196909-what-is-happening-at-standing-rock-the-dakota-access-pipeline-protests-continue-despite-new-winter-challenges.

[23] Id.

[24] Sophia Tesfaye, Congress Finally Begins to Notice Dakota Access Pipeline Protests and Standing Rock, Salon (Nov. 29, 2016), http://www.salon.com/2016/11/29/congress-finally-begins-to-notice-the-dakota-access-pipeline-protests-at-standing-rock/.

[25] Id.

[26] Sammon, supra note 5.

[27] Id.

[28] Tesfaye, supra note 26.

[29] Brinlee, supra note 24.

[30] Phil McCausland, Dakota Pipeline Protesters Vow to Stay Despite Army Corps’ Order, NBC News (Nov. 27, 2016), http://www.nbcnews.com/storyline/dakota-pipeline-protests/army-corps-engineers-orders-dakota-pipeline-protesters-abandon-camp-n688476.

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