Lucas Reynolds
If the Black Snake pipeline prevails over the indigenous people of the Dakotas, there are circles of concern that take in Bismarck, North Dakota, the U.S. and Canada.

‘The Whole World Is Watching’: The Political Crossfire of DAPL

Steve Russell
11/3/16

The trail of the Black Snake requires no federal permit because most of the route is across private land. So it is state governments rather than the federal government that can cede eminent domain authority to a company formed to make a profit.

The federal government has only a few choke points where the Black Snake requires a permit, principally to cross federally regulated waters. The immediate permitting issue is allowing the pipeline to cross Lake Oahe. The Corps of Engineers is charged with protecting the values expressed in the Clean Water Act and the Rivers and Harbors Act.

The issue hidden within the process is how specific the permitting process needs to be to comply with the law. The Corps of Engineers has created a class of permit called “Nationwide 12” (NWP 12) that amounts to a fast-track approval to appease the political forces in the U.S. that are in perpetual grievance mode about the time and money environmental regulations consume.

The first use of NWP 12 for a major project was in 2012, for the Gulf Coast Pipeline, the new moniker for the southern part of the Keystone XL Pipeline, proposed to move bitumen produced in the Canadian tar sands to refining facilities in Texas and Louisiana. Using NWP 12 meant that the Gulf Coast Pipeline got permission to cross 1,950 federally regulated waterways in four states without having to make investigations specific to each crossing to assure enforcement of the Clean Water Act and the National Environmental Policy Act (NEPA).

NWP 12 was created to finesse a serious political problem in which the Standing Rock Sioux are being tossed by the crosscurrents. When Republican candidates line up for public inspection, they have a wish list of federal agencies they wish to abolish. The Environmental Protection Agency usually vies with the Education Department for number one on the hit list.

Every NEPA review is a cost center, requiring studies on the ground and repeated defense of the project at public hearings as well as responses to written comments.

Environmentalists, somewhat hypocritically, now are more interested in the climate emergency the U.S. is polluting itself into than in this or that watercourse or endangered species. The objective becomes, if you gave them truth serum, to make every project involving fossil fuels more expensive and slower, without regard to the specifics on the ground.

Tribal governments, holding federal promises of consultation, are caught in the middle between no regulation and regulation so stiff as to make many projects prohibitively expensive.

The tribal issue often involves cultural preservation. Petroglyphs, sacred sites, and burials that are important tribal values become ammunition in the larger political clash. The purpose of tribal consultation goes far beyond clean water and sets up the National Historic Preservation Act as a means to protect artifacts associated with tribal values.

The bureaucratic method to fast-track pipeline projects is to break them into segments and claim that each segment is too insignificant to require a full NEPA review. Dallas Goldtooth, representing the Indigenous Environmental Network in a press statement, came out strongly against abusing NWP 12 to silence tribal consultations:

Oil companies have been using this antiquated fast-track permit process that was not designed to properly address the issues of mega-projects such as the Dakota Access pipeline…

Goldtooth is correct, but getting the NEPA toothpaste back in the tube after the Obama administration squeezed it out may present a political challenge. As Obama gets closer to the end of his second term, it becomes more feasible for the pipeline companies to run out the clock. The Washington Post reported this week that Obama’s wish to re-route the Black Snake away from Standing Rock is running into the same problem.

NWP 12 tends to shut off tribal input, and lack of tribal input is asserted as the legal basis for stopping DAPL. The problem with that objection to DAPL is that a faulty procedure can always be cured by a do-over. The Corps of Engineers has more time for a do-over than Obama has left in office.

As the NWP 12 regulations are used right now, the project is considered small enough to fast-track if it is “single and complete” and would result in loss of no more than one half acre of waters under federal jurisdiction. While that sounds reasonable, allowing pipeline companies to stack up hundreds of “small project” permits results in a separate category for pipelines and renders what should be transparent to affected communities opaque until the pipeline company has already spent so much money that stopping the project looks unfair.

Samantha L. Varaslona, writing in Georgetown Environmental Law Review, claims that the Gulf Coast Pipeline runs for 485 miles and crosses federal waters 2,227 times. This shows that the Corps of Engineers has succeeded in containing costs and shortening the process for its own convenience and that of the pipeline companies.

What the Corps overlooks is that the public policy dilemma has more than one horn. On the other side is clean water and cultural preservation—avoiding harm—and the Standing Rock Sioux are searching in vain for a fair hearing.

That’s only the first level of the circles of concern here that span the entire planet.

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