A young activist holds a sign during a march in solidarity with Standing Rock Water Protectors in Seattle, Washington, on September 16, 2016. (Photo: John Duffy)

A new year and five oil-spills later, the flowing of oil through the Dakota Access Pipeline (DAPL) underneath the Standing Rock Sioux Tribe’s water supply continues to be a threat to tribal survival. As the Tribe battles to shut down the oil flow through the courts, new information detailing how the pipeline was wrongly placed through Lake Oahe — the Tribe’s main source of drinking water — is emerging.

The decision to move the DAPL from a route north of the 90 percent white population of Bismarck down onto the traditional lands of the Sioux and under Lake Oahe, impacting the 84 percent Native population, required a legally adequate environmental justice analysis that Dakota Access, LLC failed to prepare.

Records obtained through a recent Freedom of Information Act (FOIA) request reveal that the United States Army Corps of Engineers inappropriately attempted to guide the companies funding DAPL toward providing an environmental justice analysis of the pipeline that would conclude that there was no disproportionate impact on a racial minority.

Taking their cue from the Army Corps, the pipeline companies Energy Transfer Partners (ETP) and Dakota Access, LLC manipulated their environmental justice assessment to reach that predetermined conclusion.

Leaky Pipes

Touted as “one of the safest, most technologically advanced pipelines in the world” by Dakota Access, LLC, the pipeline has already leaked five times in 2017, with more than 100 gallons of oil in two separate incidents in North Dakota last March, 84 gallons in South Dakota, 168 gallons in Illinois in April, and 21 gallons in Iowa in November. This shouldn’t come as a shock, as another company operating the pipeline, Sunoco Logistics, has spilled more crude oil than any of its competitors, with more than 200 leaks since 2010.

Last June, DAPL began flowing oil under Lake Oahe, a reservoir considered sacred to Lakota spiritual practices. The potential for an oil leak under the lake drove thousands of Water Protectors to protest the pipeline between 2016 and 2017. While the easement for the route was denied by the Obama administration, which sought to explore alternate routes for the pipeline crossing, the Trump administration hastily granted it.

Emails obtained from the Army Corps of Engineers show the agency actively and improperly sought to convince the companies behind DAPL to include a legally sufficient environmental justice section, and to be sure that the section concluded that there was no disparate impact on Natives when the route through Lake Oahe was selected.

In an internal email to Brent Cossette and Johnathan Shelman (a section coordinator and environmental resource specialist with the Omaha District Army Corps, respectively), Eric Laux, a natural resources specialist with the Army Corps, writes:

The tribes have provided us comments that they believe we have forsaken their water quality vs citing the pipe near Bismarck and their groundwater protection area. As such, it would be VERY wise to make it clear, especially in the EJ [Environmental Justice] section, why this citing is not unequal in relation to other cities that could have been selected. The EJ appears to be pretty weak in that regard, especially since we have seen comments that area begging for better reasoning in the EA [Environmental Assessment] by the Corps.

Laux continues,

[T]his EJ, based on my view, could use some touch-up in order to make it clear that the citing of this line isn’t unequal in any way. I.e. there are good reasons (not ‘land is cheap’, but geologic, environment, etc.) … If DAPL is going to force us to ferret every single kink out of this thing ourselves instead of their EIS contractor being professional enough to have this stuff buttoned up from the beginning, than it will impact their schedule.

Upon noticing that the company’s environmental assessment did a poor job of addressing the question of environmental justice, the Army Corps of Engineers took it upon itself to notify Dakota Access, LLC that a more substantive environmental justice analysis was needed, and that such an analysis should conclude that there was no disproportionate impact, i.e. provide reasons for the location selection that would not raise the issue of a disproportionate impact on the Natives at Standing Rock.



The emails indicate the Army Corps cooperated with Dakota Access, LLC to prepare an environmental justice analysis that deliberately excluded or obscured evidence of disproportionate racial impact, in violation of Title VI of the Civil Rights Act of 1964.

On December 4, 2016, the Obama administration announced a decision by the Army Corps to not issue the easement, which is needed by the pipeline company to begin construction under Lake Oahe, and, instead, to prepare a full Environmental Impact Statement (EIS). The Army Corps filed notice of its intent to prepare an EIS and solicited public comments on the scope.

On January 24, 2017, in one of his first acts as president, Trump ordered the Army Corps to withdraw the notice of its intent to prepare an EIS and to issue the easement for DAPL. The Army Corps abandoned its position and complied with the president’s directive.

Remand

Last October, a federal court ruled that, even with the Army Corps’ assistance, the environmental justice section in its broader environmental assessment had insufficiently addressed three items.

First, the degree to which the project’s effects are likely to be highly controversial. Second, the consequences of a spill for the Tribe’s fishing and hunting rights. And lastly, the environmental justice impacts of an oil spill on the Tribe’s water supply. Federal District Court Judge James Boasberg remanded the proceeding back to the Army Corps to address the identified deficiencies.

The judge then ruled that the oil could continue to flow while the Army Corps cured the deficiencies the court has identified. In his ruling, however, the judge made it clear that he considered the pipeline a threat to the Tribe.

“[T]here is no doubt that allowing oil to flow through the pipeline during remand risks the potentially disruptive effect about which the Tribes are most concerned — a spill under Lake Oahe,” the judge wrote.

He continued to support his opinion, writing, “The likelihood of any such rupture may be low, but pausing the operation of the pipeline would mitigate even this small risk…. [B]y emphasizing the financial impacts of vacatur [the halting of the pipeline’s flow of oil through Lake Oahe], defendants ignore the devastating consequences that the Tribes allege could result from remand without such a remedy in place.”

Falling Short

The Corps’ Environmental Assessment and Finding Of No Significant Impact claims that given the proposed mitigation measures and assessment of DAPL’s “anticipated environmental, economic, cultural … social and cumulative effects,” the crossing at Lake Oahe would not “significantly affect the quality of the human environment.”

The facts, however, show the decision to place the pipeline underneath Lake Oahe to be a racially motivated decision. A misleading impact area was defined excluding the Native population. The impact area was defined as one half-mile on either side of the pipeline. The reservation boundary begins just over a half-mile from the pipeline; therefore, the analysis excluded any impacts on the reservation population. The Army Corps accepted this arbitrary manipulation of the impact area definition and the consequent failure to assess the impacts on the Tribe.

The Standing Rock Sioux and Cheyenne River Sioux Tribes challenged the selection of the Lake Oahe site over the Bismarck alternative, arguing that the Army Corps failed to properly analyze whether the current placement would disproportionately affect low-income communities of color. Agreeing with the Tribes, the court held that the Corps analysis did not “reasonably support the conclusion that the Tribe will not be disproportionately affected by an oil spill in terms of adverse human health of environmental effects.” The court concluded that the agency “did not properly consider the environmental-justice implications of the project.”

The Corps’ analysis fell short, failing to explain what the effects of a spill from the pipeline would be. They justified this, ineffectively, by asserting that the likelihood of a spill is so low that they don’t have to look at the impact.

If an environmental assessment concludes that there will not be significant environmental impact, the agency may forgo completing a full EIS, as it did. The Standing Rock Sioux Tribe is asserting that the Army Corps violated the National Environmental Policy Act (NEPA) by failing to complete an EIS. Judge Boasberg agreed that the racial impact analysis provided was unsatisfactory, and that the Army Corps failed to fully follow NEPA when it determined the pipeline would not have a significant environmental impact.

Ultimately, Judge Boasberg found that stopping the flow of oil was not the appropriate remedy in this case, “in light of the serious possibility that the corps will be able to substantiate its prior conclusions.”

Judge Boasberg lends credence to the fact that the current route through Lake Oahe was inappropriately assessed by saying that the court recognizes “the lack of a reasoned explanation is a serious failing in an agency’s decision, because it leaves the court in doubt as to whether the agency chose correctly in making its decision.”

Toothless

The unfortunate reality is that NEPA is toothless. Signed into law in 1970, NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. While it forces the Corps to take a hard look at potential impacts, it leaves room for the findings to be ignored in favor of whatever plan the agency desires to pursue.

The Army Corps considered four route alternatives prior to deciding on the Lake Oahe route. Under NEPA, an agency is “not required to select the course of action that best serves environmental justice, only to take a ‘hard look’ at environmental justice issues. Just as the agency is not required to select an alternative with the least environmental impact under NEPA, the agency is not required to select an alternative with the least environmental justice impact,” writes Judge Boasberg.

Therefore, Judge Boasberg writes, “The identification of a disproportionately high and adverse human health or environmental effect on a[n] … Indian tribe does not preclude a proposed agency action from going forward, nor does it necessarily compel a conclusion that a proposed action is environmentally unsatisfactory. Rather, the identification of such an effect should heighten agency attention to alternatives (including alternative sites.)”

Judge Boasberg’s frightening analysis reveals just how lackluster and meaningless toothless laws like NEPA are. It begs the question: Can we require agencies to select the option with the least environmental justice impact? As this case shows us, we cannot. Laws like NEPA provide the public a flowery illusion. What is the point of having a law like NEPA if the law does not require making the choice that best protects the environment? It effectively serves the same purpose as a guard dog that may look scary, but will whimper and hide upon an intrusion.

Back in March of 2014, Dakota Access, LLC considered a route north of Bismarck, North Dakota, that never made it in the proposed route submitted to the Public Service Commission, which must approve the route. The key reason is that the pipeline would have crossed a “high consequence area,” which is an area determined to have the most significant adverse consequences in the event of a pipeline spill. As the crossing under Lake Oahe poses a great risk to the main water supply of the Standing Rock and Cheyenne River Tribes, the question arises: Why do white lives matter more than Native lives?

“Indians This, Indians That”

Internal Corps email excerpts — received through discovery by Earthjustice — show the decision makers behind the pipeline wearing lenses fogged with racism.

One May 2016 email chain documents Army Corps communications about ETP and Dakota Access, LLC. “Why do we tolerate these comments from an applicant? Someone needs to tell Joey the next RACIST comment will shut down the entire project,” wrote Julie Price a cultural resources project manager for US Army Corps of Engineers, Omaha District. She goes on to write, “This project is ruining our relationships with the Tribes.” The name referenced is Joey Mahmoud, the project executive for the pipeline and executive vice president of ETP.

A separate email further illustrates the racist attitudes of ETP. “Indians this, Indians that. Who is this Ed Wester guy anyway? The attitude from these guys is just atrocious. It’s pretty obvious it pisses these guys off that they even have to talk to tribal folks,” wrote Richard Harnois, a senior field archaeologist for the US Army Corps of Engineers, Omaha District Oahe Project Office.

He continues, “… some of the blatantly racist attitudes I keep hearing from them will just continue to make things worse.” Ed Wester is the environmental project manager for the pipeline.

Harnois replied to the same email thread, “MY years of experience working with tribal PEOPLE, TCP’s [Traditional Cultural Property], sacred and archaeological sites HERE, lead me to the exact conclusion that I have already stated: there is an area of concern that needs to be avoided if they want a permit for that crossing.”

The mentioned excerpts highlight the racist attitudes of the pipeline developer, providing further credence to the conclusion that the Environmental Justice Assessment deliberately excluded or obscured evidence of disproportionate racial impact, in violation of Title VI of the Civil Rights Act of 1964.

Regardless of the outcome of the court case, history will remember that a grave injustice has been committed upon the Lakota people. I will never erase from my memory the image of law enforcement officers — guided by the private military force TigerSwan — terrorizing peaceful and prayerful people who stood for clean water and against oppression.

As two-faced Judge Boasberg says, “What is clear is that accidents and spills, however they may occur, have the potential to wreak havoc on nearby communities and ecosystems.”