Cel­e­bra­tions erupt­ed in the Stand­ing Rock encamp­ments and on social media after the announce­ment was made. The deci­sion came down at the same time that more than 2,000 vet­er­ans were arriv­ing in North Dako­ta to join the resis­tance, grow­ing the num­ber of pro­tes­tors and gar­ner­ing this response from local law enforcement.

“Today, the U.S. Army Corps of Engi­neers announced that it will not be grant­i­ng the ease­ment to cross Lake Oahe for the pro­posed Dako­ta Access Pipeline. Instead, the Corps will be under­tak­ing an envi­ron­men­tal impact state­ment to look at pos­si­ble alter­na­tive routes. We whole­heart­ed­ly sup­port the deci­sion of the admin­is­tra­tion and com­mend with the utmost grat­i­tude the courage it took on the part of Pres­i­dent Oba­ma, the Army Corps, the Depart­ment of Jus­tice and the Depart­ment of the Inte­ri­or to take steps to cor­rect the course of his­to­ry and do the right thing.”

The U.S. Army Corps of Engi­neers (USACE) announced Sun­day it will not grant an ease­ment to allow con­tin­ued con­struc­tion of the pro­posed Dako­ta Access Pipeline along its cur­rent route.

USACE spokes­woman Moria Kel­ley released an offi­cial state­ment con­firm­ing their denial of the ease­ment for the 1,172-mile pipeline owned by Texas-based Ener­gy Trans­fer Part­ners (ETP). Though the pipeline is near­ly com­plete, USACE Assis­tant Sec­re­tary for Civ­il Works Jo-Ellen Dar­cy says the Corps will ​“explore alter­nate routes” for the pipeline’s cross­ing instead of bur­row­ing under Lake Oahe, the Mis­souri Riv­er reser­voir where con­struc­tion has been on hold since Novem­ber 14.

But the fight to pro­tect the land and water isn’t over. In a state­ment released late Sun­day night, Ener­gy Trans­fer Part­ners and Suno­co Logis­tics respond­ed to the failed ease­ment, caim­ing the Oba­ma admin­is­tra­tion had ​“aban­doned the rule of law in favor of cur­ry­ing favor with a nar­row and extreme polit­i­cal con­stituen­cy.” ETP has stat­ed they’re unwill­ing to reroute the project.

DAPL has been halt­ed before and it didn’t work

Sev­er­al attempts have been made to halt the pipeline before the ease­ment was denied. In Sep­tem­ber, the Stand­ing Rock Sioux, mem­bers of the Great Sioux Nation, filed an emer­gency peti­tion to reject the USACE’s per­mit for the pipeline, in which the Tribe claimed they had not been con­sult­ed and a sur­vey of the con­struc­tion site iden­ti­fied ​“sig­nif­i­cant cul­tur­al and his­tor­i­cal val­ue.” They took the case to fed­er­al court on Sep­tem­ber 4 and, on Sep­tem­ber 6, U.S. dis­trict judge James Boas­berg agreed to tem­porar­i­ly halt con­struc­tion on a por­tion of the pipeline. He then issued a rul­ing allow­ing work to continue.

On Sep­tem­ber 9, the Depart­ment of Jus­tice, the Depart­ment of the Army, and the Depart­ment of the Inte­ri­or issued a state­ment that tem­porar­i­ly halt­ed all con­struc­tion bor­der­ing Lake Oahe. Protests con­tin­ued despite the tem­po­rary sus­pen­sion because con­struc­tion crews did not vacate. Ener­gy Trans­fer Part­ners (ETP) filed a fed­er­al law­suit on Novem­ber 14 seek­ing approval to fin­ish con­struc­tion and seek­ing reim­burse­ment for ​“rea­son­able costs includ­ing attorney’s fees in bring­ing this action.” The fil­ing occurred the same day the Army Corps of Engi­neers announced it would not grant an ease­ment to drill under the Mis­souri riv­er until fur­ther analy­sis could be done.

In oth­er words, we’ve been here before.

No ease­ment was grant­ed as a result of the law­suit, and accord­ing to USACE, any drilling would vio­late fed­er­al law. Water pro­tec­tors at the camps claimed DAPL offi­cials ignored these requests by fed­er­al agen­cies. Accord­ing to a Face­book live video pro­duced on Novem­ber 16 by Indige­nous Life Move­ment advo­cate Myron Dewey, it appeared DAPL turned off flood­lights to mask the arrival of a drill at Lake Oahe. The move was not con­firmed by DAPL officials.

An evic­tion order for the Oceti Sakowin Camp, issued by the USACE, remains on the books and could still be lever­aged to pres­sure peo­ple to leave the area. It is also pos­si­ble that as the num­ber of pro­tes­tors declines due to this per­ceived vic­to­ry, it will be eas­i­er for law enforce­ment to evict the remain­ing water pro­tec­tors. Reports from the camp claim law enforce­ment has yet to demil­i­ta­rize, sug­gest­ing there may still be a fight ahead.

What an ease­ment is and what it means for water pro­tec­tors and DAPL

The land that DAPL part­ners pur­chased is not theirs, much like how in real-estate trans­ac­tions, the land home­own­ers buy is not theirs. Neigh­bors share parts of the land and local util­i­ty com­pa­nies have a right to infra­struc­ture under the swing set. An ease­ment is a right-of-way that grants oth­er des­ig­nat­ed groups access to a sec­tion of land with­out the legal con­sent of the landown­er. Ease­ments can be grant­ed to any­one, and can only be removed if both par­ties agree. The USACE has blocked an ease­ment for DAPL pro­po­nents twice, and is like­ly to con­tin­ue to do so on the grounds of pro­tect­ing treaty and prop­er­ty rights for Native com­mu­ni­ties. The Stand­ing Rock Sioux have also alleged vio­la­tions of the Nation­al His­toric Preser­va­tion Act.

“If there is an ease­ment grant­ed, we will sue,” Archam­bault said last Thurs­day dur­ing a Face­book Live stream. The ease­ment denial could be over­turned but, until then, Ener­gy Trans­fer Part­ners and investors are like­ly to sue or go to court (as they have in the past). That said, pre­vent­ing the DAPL ease­ment, even tem­porar­i­ly, sends a sig­nal to investors and builders that they do not have an inher­ent right to the land. If no prop­er util­i­ty pur­pose can be defined, or if the pipeline is deemed finan­cial­ly and/​or envi­ron­men­tal­ly unsta­ble, this could be used in court to per­ma­nent­ly halt the project.

Eco­nom­ic pres­sure increas­es for DAPL offi­cials to deliv­er by the New Year

Ener­gy Trans­fer Part­ners faces a loom­ing New Year’s com­ple­tion dead­line and has con­ced­ed in court that, if they do not meet it, the com­pa­nies with long-term com­mit­ments to ship oil through the pipeline have the right to pull out. Accord­ing to a report by the Insti­tute for Ener­gy Eco­nom­ics and Finan­cial Analy­sis, ETP recent­ly informed investors that it would take three to four months to com­plete the pipeline after an ease­ment is grant­ed, thus mak­ing it increas­ing­ly unlike­ly the Jan 1. dead­line would be met. The report also notes the pipeline may rep­re­sent exces­sive build­ing of the Bakken region’s oil-trans­port infrastructure.

On a glob­al scale, the con­text for the project has changed dras­ti­cal­ly since it was intro­duced in 2014. Glob­al oil prices col­lapsed right after oil ship­pers had com­mit­ted to using the pipeline and many in the ener­gy sec­tor do not expect prices to bounce back to their 2014 lev­els for at least a decade. If oil prices do stay low, less Bakken oil pro­duc­tion would ren­der cost­ly new infra­struc­ture unnec­es­sary. In oth­er words, the near­ly-com­plet­ed, $3.8 bil­lion Dako­ta Access Pipeline could become a failed asset — a strand­ed project that was rushed to com­ple­tion to pro­tect con­tract terms nego­ti­at­ed in 2014.

Envi­ron­men­tal impact state­ments take time

Since the begin­ning, DAPL has been fast-tracked under the Nation­wide Per­mit 12 process for util­i­ty lines which includes, accord­ing to the flex­i­ble lan­guage in the doc­u­ment, pipelines car­ry­ing any mate­r­i­al for ​“any pur­pose”. The doc­u­ment issued by the USACE allows for util­i­ty lines to be treat­ed as a series of tiny con­struc­tion sites. This effec­tive­ly grants exemp­tion from envi­ron­men­tal review required by the Clean Water Act and the Nation­al Envi­ron­men­tal Pol­i­cy Act (NEPA).

Sunday’s ease­ment denial was made on two bases: First, the Army Corps of Engi­neers will con­sid­er alter­na­tive routes for the pipeline. Sec­ond, the project would now under­go an Envi­ron­men­tal Impact State­ment (EIS) issued under NEPA. Accord­ing to a study by Cam­bridge Uni­ver­si­ty, such state­ments take a long time to pre­pare — fed­er­al agen­cies required an aver­age of 3.4 years to com­plete their reports. This is sig­nif­i­cant­ly longer than pro­tes­tors could camp out or a com­pa­ny fac­ing finan­cial stress could hold out.

It’s not pos­si­ble to con­clude the exact dam­ages the pipeline could have on the region­al and even nation­al envi­ron­ment until the state­ment is com­plet­ed, but the risks are high. Pipeline leaks hap­pen fre­quent­ly. Since 1986, hun­dreds of pipeline acci­dents have killed more than 500 peo­ple, injured over 4,000 and cost near­ly sev­en bil­lion dol­lars in prop­er­ty dam­ages. Enbridge Pipelines, a part­ner on DAPL, has had 123 offi­cial reports of dam­ages or inci­dents in the last 30 years alone. Pipelines are hard to build safe­ly, and there’s no guar­an­tee a pipeline built in a year is any safer.

In their denial of the ease­ment, the USACE did not deny a per­mit to cross the Mis­souri Riv­er in oth­er loca­tions, so any poten­tial re-route may still threat­en water sup­plies. A leak into the Mis­souri Riv­er, to which Lake Oahe is con­nect­ed, would be dev­as­tat­ing to com­mu­ni­ties in the region. As Argus’ John Hult point­ed out in the Detroit Free Press, if the tribes and lit­i­ga­tors suc­cess­ful­ly prove the pipeline is in vio­la­tion of any num­ber of envi­ron­men­tal acts (as well as the Nation­al His­toric Preser­va­tion Act and the Rivers and Har­bors Act) Stand­ing Rock could fur­ther delay the pipeline in court.

The Trump admin­is­tra­tion could over turn the deci­sion, but not easily

It is unlike­ly the pipeline will be com­plet­ed by its Jan. 1, 2017 dead­line. It’s equal­ly unlike­ly that it will be per­ma­nent­ly halt­ed due to finan­cial con­cerns, envi­ron­men­tal dan­gers, or con­tin­u­ing protests against Native Amer­i­can treaty vio­la­tions before Pres­i­dent-elect Don­ald Trump’s inau­gu­ra­tion on Jan. 20, 2017. Pres­i­dent-elect Trump, who owns stock in Ener­gy Trans­fer Part­ners and Phillips 66 (who owns one-quar­ter of the DAPL) has, unsupris­ing­ly, expressed sup­port for the project but main­tains it’s pol­i­cy-based and not finan­cial. But he has not stat­ed whether or not he will get rid of these invest­ments upon inauguration.

By law, the deci­sion to per­ma­nent­ly stop the pipeline ulti­mate­ly falls on the Army Corps and not the exec­u­tive branch. Pres­i­dent Oba­ma can­not not do much to stop the pipeline with­out sig­nif­i­cant over­reach. But there’s also not much Trump can do to over­turn the ease­ment denial besides seek­ing to undo it under judi­cial review — a process that could take up to three months. A GOP-con­trolled Con­gress could poten­tial­ly fast track the project, but it’s too ear­ly to say how that might turn out.

Despite wide­spread cel­e­bra­tion of the USACE’s deci­sion, some politi­cians are crit­i­ciz­ing the choice to halt DAPL’s con­struc­tion. Accord­ing to the AP, North Dako­ta Gov. Jack Dal­rym­ple ® called the deci­sion a ​“seri­ous mis­take” that ​“pro­longs the dan­ger­ous sit­u­a­tion” of hav­ing pro­tes­tors camped out in the cold. U.S. Rep. Kevin Cramer called it a ​“very chill­ing sig­nal” for future infra­struc­ture projects in the Unit­ed States. House Speak­er Paul Ryan (R‑Wis.) also weighed in on Twitter:

This is big-gov­ern­ment deci­sion-mak­ing at its worst. I look for­ward to putting this anti-ener­gy pres­i­den­cy behind us. https://t.co/Qu0nFTmGZv — Paul Ryan (@SpeakerRyan) Decem­ber 5 , 2016

The Stand­ing Rock Medic & Heal­er Coun­cil, which pro­vides ser­vices to the encamp­ments, has stat­ed that protests are like­ly to con­tin­ue until the pipeline is no longer a threat — whether this means investors pulling out or the fed­er­al gov­ern­ment shut­ting DAPL down in court. Either way, Sunday’s deci­sion marked a sig­nif­i­cant vic­to­ry for the Stand­ing Rock Sioux.