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The Battle Over DAPL Continues

In the most recent update to the Dakota Access Pipeline (DAPL), D.C. District Court Judge James Boasberg held that the United States Army Corps of Engineers (USACE) failed to perform an adequate environmental study when approving of the project’s stretch over the Missouri River, according to The Atlantic. Although noting that USACE’s final “Permit 12” was in fact deficient, DAPL continues to run while Judge Boasberg comes to a decision on whether or not it should be stopped pending further environmental study.

Under the National Environmental Policy Act (NEPA), major federal actions significantly affecting the environment must undergo a specific level of environmental analysis by the responsible federal agency. Agencies generally opt to begin with the much simpler Environmental Assessment (EA), which only briefly outlines an action’s potential environmental effects. An EA may be all that is necessary; for example, if the potential effects are insignificant, or maintain the status quo. However, if agency action may have any significant impacts, agencies are required to prepare an Environmental Impact Statement (EIS), a much more in-depth report outlining a project’s potential impacts, alternatives, and other factors that need be considered.

Although much of DAPL crosses over private land, the most contentious portion of the pipeline since its inception has been its crossing over Lake Oahe of the Missouri River, from where the Standing Rock Sioux obtains its drinking water. Under the Clean Water Act, USACE maintains jurisdiction over the “waters of the United States,” which gave the USACE the responsibility over the permitting process for DAPL’s crossing over the Missouri. Uncertainty exists in the law as pertaining to Native American water rights, however, as the Winters Doctrine established by Winters v. United States, 207 U.S. 564 (1908), held that water rights on a reservation are presumed to belong to the reservation. Regardless, USACE asserted jurisdiction in the permitting process and issued an EA with a “FONSI” (Finding of No Significant Impact) for DAPL’s crossing over the Missouri. Despite numerous potential significant impacts such as those to public health and safety, the uncertainty of the possible impacts on the Missouri, and the threat of loss of cultural resources, under this EA, USACE issued its final Permit 12 for the crossing.

This approval of construction began months of protests leading up to a momentary victory when the permit was pulled by the Obama administration last December pending further environmental study. However, just days into the inception of the Trump administration, the order to pull the permit was reversed, with President Trump telling USACE to approve the project as quickly as possible. DAPL has already leaked approximately 100 gallons since construction completed, and while this is meager in comparison to the 470,000 gallons of oil it transports daily, concerns persist given the wide range of health effects oil can have when present in drinking water, including increased rates of cancer, skin rashes, pregnancy complications, morbidity, spontaneous abortion, malnutrition, and overall increased mortality rates. A separate natural gas line owned by Energy Transfer Partners (ETP), the owner of DAPL, has already “caused seven industrial spills [and] polluted fragile Ohio wetlands” prior to its opening, only further calling into question DAPL’s potential for a disaster. Although ETP has previously argued that halting the pipeline would be prejudicial given their multi-billion dollar investment into the pipeline’s completion, it remains to be seen whether DAPL’s potential risks will outweigh these concerns.

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