WASHINGTON - A long-awaited decision issued Sunday, Dec. 4, denies an easement for the Dakota Access Pipeline, but it does not mean an end for the controversial Bakken oil pipeline.
The Department of the Army said it would not approve an easement to allow the 1,172-mile pipeline to cross under Lake Oahe north of the Standing Rock Sioux Reservation, where protests have escalated in recent months.
Jo-Ellen Darcy, the Army’s assistant secretary for civil works, called for a full Environmental Impact Statement with additional review and public input on the following issues, according to a document filed in federal court:
- Consideration of alternative routes for the Missouri River crossing, including more detailed information about the route Dakota Access considered about 10 miles north of Bismarck.
- Detailed discussion of the potential risk of an oil spill and potential impacts to Lake Oahe, the tribe’s water intakes and the tribe’s water rights.
- Additional information on the tribe’s treaty rights in Lake Oahe, as well as treaty fishing and hunting rights.
"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," Darcy said in a statement. "The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing."
Pipeline opponents, who began camping near the contentious area of the pipeline route last April, celebrated Sunday but remained cautious knowing that President-elect Donald Trump has voiced support for the $3.8 billion pipeline's completion.
“We are asking our supporters to keep up the pressure, because while President Obama has granted us a victory today, that victory isn't guaranteed in the next administration,” said Dallas Goldtooth, lead organizer with the Indigenous Environmental Network, who estimated the size of the pipeline resistance camps to be about 10,000 on Sunday.
Standing Rock Sioux Tribe Chairman Dave Archambault II called Sunday’s announcement a historic decision.
“In a system that has continuously been stacked against us from every angle, it took tremendous courage to take a new approach to our nation-to-nation relationship, and we will be forever grateful,” he said in a statement.
Standing Rock would be ready to challenge if Trump does intervene, said Jan Hasselman, who represents the tribe as an attorney for environmental law firm Earthjustice.
“If the Trump administration tries to reverse this decision, we will see them in court,” Hasselman said Sunday.
If the tribe gets a thorough environmental review as ordered by the Army, there may not be much reason to proceed with the federal court case the tribe filed last July against the U.S. Army Corps of Engineers, Hasselman said.
However, Dakota Access LLC has its own cross claim against the federal government and could file additional claims after Sunday’s decision.
“No one can predict which way this story will turn next,” Hasselman said.
Energy Transfer Partners, parent company of Dakota Access, did not immediately issue a comment Sunday.
The entire North Dakota congressional delegation criticized the Obama administration over the decision.
“Today’s unfortunate decision sends a very chilling signal to others who want to build infrastructure in this country,” Rep. Kevin Cramer, R-N.D., said in a statement. “Roads, bridges, transmission lines, pipelines, wind farms and water lines will be very difficult, if not impossible, to build when criminal behavior is rewarded this way.”
Further, Cramer said he spoke Sunday with Darcy, and she “was unable to give any legal reasons for the decision and could not answer any questions about rerouting the pipeline.”
Sen. John Hoeven, R-N.D., said the Obama administration's decision “violates the rule of law and fails to resolve the issue.”
“The reality is that the company has observed all proper procedures and met all environmental standards required by four states and the Corps itself,” Hoeven said in a statement.
Sen. Heidi Heitkamp, D-N.D., said the administration’s delay in taking action doesn’t bring any finality but keeps the pipeline in limbo. She called on protesters to “act responsibly to avoid endangering their health and safety” and move off the Corps land north of the Cannonball River, which the Corps has said will close to the public on Monday.
Archambault called for peace and prayer and said the tribe looks forward to celebrating in thanks.
“With this decision we look forward to being able to return home and spend the winter with our families and loved ones, many of whom have sacrificed as well,” he said.
Archambault added that the tribe hopes Energy Transfer Partners CEO Kelcy Warren, Gov. Jack Dalrymple and the incoming Trump administration respect the Army’s decision.
“Treaties are paramount law and must be respected, and we welcome dialogue on how to continue to honor that moving forward,” Archambault said.
Gov. Dalrymple, who has repeatedly called for the easement to be granted, said in a statement the Army’s decision prolongs “serious problems” faced by law enforcement trying to maintain public safety.
“The decision today by the Obama Administration to further postpone any action on the easement for the Dakota Access Pipeline is a serious mistake,” Dalrymple said.
Morton County law enforcement took steps to de-escalate tensions Sunday afternoon by relocating further away from protesters north of the Backwater Bridge, a move announced before the Corps decision became public. The move requires protesters to follow certain conditions, including staying off of the bridge.
Jack Gerard, president of the American Petroleum Institute, called on Trump - who takes office later next month - to make approving Dakota Access a top priority.
“Modernizing our nation’s energy infrastructure benefits American consumers by keeping energy affordable, creating well-paying American jobs, and improving our environment,” Gerard said in a statement.
Amnesty International USA, which has sent human rights observers to the protests that have at times involved violent confrontations with law enforcement, said the Army’s decision should be the beginning of an improved process for projects that affect indigenous communities.
“This is an important victory for Indigenous people who fought to protect the water and their rights,” said spokesman Eric Ferrero.
The Dakota Access Pipeline, which would transport 470,000 barrels per day from the Bakken oilfields to Patoka, Ill., en route to refineries in the Gulf Coast, was scheduled to be in service by the end of the year. The project is primarily built with the exception of the 1,100-foot section crossing Lake Oahe, but the additional analysis ordered keeps the completion date uncertain.
“An Environmental Impact Statement is a thorough and meaningful process and, at some point, I hope Dakota Access gets the message that they’re never going to be able to put this here and they walk away,” Hasselman said.
The company has estimated in federal court records it will lose $2.7 million in lost revenue per day after Jan. 1 if the project is not complete.