The federal government’s 2014 climate change assessment puts the Standing Rock dispute in context with this paragraph about the Great Plains. “Rising temperatures are leading to increased demand for water and energy. In parts of the region, this will cons
Courtesy Mark Trahant
The federal government’s 2014 climate change assessment puts the Standing Rock dispute in context with this paragraph about the Great Plains. “Rising temperatures are leading to increased demand for water and energy. In parts of the region, this will constrain development, stress natural resources, and increase competition for water among communities, agriculture, energy production and ecological needs.”

Overdue National Debate About Pipelines and ‘Sound Silence’

Mark Trahant

TRAHANT REPORTS—On Friday I tweeted: “What an extraordinary day, the federal government has a pulse.” The United States finally weighed in on what many of us believe is the most important issue in the country right now: The question of how this nation will address climate change.

And pulse or not this remains an unsettled question. But at least last week the federal government took one small step toward the right answer.

Let’s back up. The Standing Rock Sioux Tribe filed suit against the U.S. Army Corps of Engineers because the agency did not adequately consult with the tribe as required law. On Friday U.S. District Judge James Boasberg disagreed, saying that the tribe had not demonstrated that an injunction was warranted to stop construction of the Dakota Access Pipeline.

The most remarkable section of the ruling, however, was the background of the case. “A project of this magnitude often necessitates an extensive federal appraisal and permitting process. Not so here. Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99 percent of its route traverses private land.”

Mark Trahant

The only regulatory role for the federal government in this case “concerns construction activities in federally regulated waters at hundreds of discrete places along the pipeline route. The Corps needed to permit this activity under the Clean Water Act or the Rivers and Harbors Act – and sometimes both. For DAPL, accordingly, it permitted these activities under a general permit known as Nationwide Permit 12.”

RELATED: Moments After Judge Denies DAPL Injunction, Federal Agencies Intervene

In other words — as a public policy — there is no public debate about this pipeline except in the context of water.

Several minutes after the court ruling three federal agencies issued their own statement.

“We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act. However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain.”

So the Department of the Army, the Department of Justice, and the Department of the Interior acted to “reconsider” previous decisions regarding the Lake Oahe site and its approval. “The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution,” the statement said. “In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

The statement also called for a serious discussion on tribal consultation about such projects. (More about that later.)

So what does this all mean? It means there will be a quick review (who knows what quick means in Fed-speak) about the underground water crossing of the Missouri River near the Standing Rock Reservation.

And, if the federal government has a pulse, it also has the ability to keep a secret. There is no way this was a rushed decision. This had to be debated at the White House level because so many multiple federal agencies were involved (it’s interesting that the Environmental Protection Agency and the Department of Energy did not join in on this statement.)

The idea that the water crossing needs a second look is an entry point into a larger question, how important are water resources in the era of climate change?

I suspect the oil and pipeline industry already knows the answer. A news release from the National Association of Manufacturers said, “President Obama has crossed the line.” This decision “sets a bad precedent that could threaten future infrastructure projects.” The Midwest Alliance for Infrastructure Now was even gloomier in its assessment. “Should the Administration ultimately stop this construction, it would set a horrific precedent. No sane American company would dare expend years of effort and billions of dollars weaving through an onerous regulatory process receiving all necessary permits and agreements, only to be faced with additional regulatory impediments and be shutdown halfway through completion of its project.”

This is too rich. A federal judge (in a ruling the industry liked) said the process was not onerous. In fact it’s the opposite because domestic oil pipelines require no general approval from the federal government.

The Midwest Alliance went on to say: “We hope and trust that the government will base its final decision on sound science and engineering, not political winds or pressure.”

And that is exactly where the country ought to start the conversation, using sound science.

The federal government’s best science comes from the U.S. Global Research Program. In its most recent report, it says “climate change does not occur in isolation. Rather, it is superimposed on other stresses, which combine to create new challenges.”

The Dakota Access Pipeline is such a challenge. The industry’s own promotions say this pipeline will move more oil to markets faster, eventually moving 570,000 barrels a day. Instead of reducing consumption, it makes it easier and cheaper for Americans to have more.

Yet at the same time the United States has promised the rest of the world that we will slow down our use of oil and reduce our carbon impact. The official goal is to limit the increase (not reverse) global warming to “well below” 2 degrees centigrade. That will not happen with more, cheaper oil.

Again, consider the Federal Government’s best science. It says: “Climate change challenges the idea of hydrologic stationarity, which assumes that the statistical characteristics of hydrologic data are constant over time—in other words, that water dynamics of the future can be expected to be similar to those of the past. Climate change means that this assumption may not hold for all cases, undermining fundamental paradigms of water resource management and infrastructure design.” My translation: We need to protect water as the most important resource on the planet.

That same report says in order to protect basic human needs there needs to be “a safeguarding of natural assets, promoting resilience in urban and rural areas, decoupling carbon emissions from economic growth, and encouraging sustainable production and consumption patterns.”

The sound science is clear. We need to make sure that water is treated as the nation’s most important natural resource. Water is life. That’s not politics. It’s science.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On @TrahantReports" target="_blank">Twitter @TrahantReports.

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Sammy7's picture
Submitted by Sammy7 on
Given that the name of the Standing Rock Sioux Chairman David Archambault II is being publically used, Why are the "personal names" of the Energy Transfer Partners and the owners of the Dakota Access LLC being hidden? Knowing those names would add balance to this issue. Knowing who they are and what their backgrounds are is critical to understanding the dynamics of this issue. Why have they been given a pass, even by American Indian journalists?

matosicha's picture
Submitted by matosicha on
As I see it, U.S. Judge James Boasberg identified three basic problems at hand: (1) "Congress has decided that no general federal regulation applies to domestic oil pipelines." (2) "Powerless to prevent these harms given the current posture of the case, the Court cannot consider ... the relief sought here. Put simply, any such harms are destined to ensure whether or not the Court grants the injunction the Tribe desires." (3) "As Standing Rock acknowledges, Dakota Access has demonstrated that it is determined to build its pipeline right up to the water's edge regardless of whether it has secured a permit to then build across. ** Like the Corps, this Court is unable to stop it from doing so." At glance, it appears Standing Rock entered its injunction request upon the weakest reed or straw available: that is, whether the U.S. Army Corps of Engineers "flouted its duty to engage in tribal consultations." The answering record becomes a multi-year return indictment of dereliction, negligence or unresponsiveness on the part of tribal employees or officials when pressed to consult or to provide information - with a few notable exceptions. A dilemma for Standing Rock or other Indian Nations is when consultation or cooperation converts into "consent" to what is more accurately an "oil pipeline accommodation process." Dakota Access has stated its willingness to snake its way through identified "sacred sites" to "the water's edge" irrespective of any broader tribal rights or interests or broader dimensions to "what is sacred" in measured approaches over land or territory. In that "process," it does no good to interpose objection until the pipeline has already screwed you or until oil is pouring onto your head and into the life-giving waters of most vital interest, connection - and sacredness. You can still object - but then it is too late to have any meaning or to afford any protections. In analogy: 'if you weren't residing on Mount Arafat when the floods began - and no one was - you can't move there now during the flood and, by the way, there's no room for you either on The Ark. It wasn't constructed for you. You must simply accept your fate. I appreciate your willingness to consult me on this outcome.'