Recently I emailed my senator, Jeff Merkley regarding my concerns about the Dakota Access Pipeline and the many issues and questions regarding how the permitting and access for the pipeline have been handled by the Federal government. His reply to me was, as always, substantive and very helpful--this is not a senator who uses boilerplate canned generic responses to his constituents. I think his email contained a lot of good information and I thought it would be a good idea to share that around because I had no idea how effed up the entire process has been. Please note that when I originally wrote to Sen Merkley the mass arrests and National Guard deployment had not yet occurred, and therefore are not addressed in this email.

Dear [redacted],

Thank you for contacting me to share your opposition to the construction of the Dakota Access Pipeline. I share many of your concerns and I appreciate hearing from you on this important issue.

Due to growing awareness and concern about the shortcomings of the permitting process, the Army Corps of Engineers ultimately decided to halt construction of the Dakota Access Pipeline in certain areas bordering the Missouri River, and may consider alternative routes for the project. In a joint statement between the Departments of Justice, the Army, and the Interior, the Obama Administration also invited consultation from tribes on how to better ensure meaningful tribal input on infrastructure projects and decisions in the future.

I support the Obama Administration’s decision to pause construction on the Dakota Access Pipeline. The planning process for the pipeline has three major shortcomings: inadequate consultation with the Standing Rock Sioux Tribe and the public; an inappropriate permitting process utilized by the Army Corps; and a failure to conduct the proper environmental reviews.

First, it appears that the Standing Rock Sioux Tribe did not have sufficient opportunity for input and was not adequately consulted throughout the process. Despite the pipeline crossing 500 feet from the Standing Rock Sioux Tribe’s reservation and under their water source, the tribe was not mentioned in the pipeline’s environmental assessment. Large fossil fuel infrastructure projects, like the Dakota Access pipeline, have the potential to cause serious environmental harm and damage irreplaceable historic and cultural sites. Accordingly, it is imperative that the permitting process for these types of projects give sovereign tribes and the public ample opportunity to provide substantive input into siting decisions.

Second, the Army Corps of Engineers approved the pipeline based on a general permit that is more appropriate for a minor undertaking, such as a boat ramp, than an interstate pipeline. Under this general permit, called a Nationwide Permit 12 (NWP 12), the Army Corps only looks at the impact of each individual waterbody crossing, not the entire pipeline. Therefore, as long as none of the 202 water crossings individually impact more than a one-half acre, the overall project is allowed to move forward under the preapproved general permit on the understanding that it has “minimal environmental impacts.” This preapproval means that there is no public notice or comment period for the overall project, and that no Environmental Impact Statement (EIS) is required. It is unacceptable that a major project of this nature would use a general permit that does not account for the unique threats and challenges of a crude oil pipeline, or allow for comprehensive public review

Finally, the environmental review of the Dakota Access Pipeline was grossly inadequate for a piece of major fossil fuel infrastructure; this pipeline stretches 1,172 miles across four states and has 202 river crossings. During the initial permitting process, the U.S. Environmental Protection Agency, the Department of the Interior, and the Advisory Council on Historic Preservation all called on the Army Corps to do a more thorough environmental review of the project. The Army Corps, however, chose to ignore those requests, and utilized a NWP 12, which is inappropriate for major projects. The result of this decision is that the Dakota Access Pipeline did not receive a full EIS, and was not required to develop a comprehensive oil spill response plan. In addition, a fossil fuel project of this magnitude should also have a full analysis on the impact to climate change before it is approved.

The government agencies involved should use the current pause to address these shortcomings in the process and no construction should be allowed to continue until that happens. I am, however, mindful that stopping construction once it has started is highly disruptive to the companies and workers involved, who have made major decisions based on permits already granted. It’s not fair to workers, who in many cases move to remote areas to do hard or dangerous work, that they end up losing pay because government agencies didn’t adequately review the project before issuing permits.

Going forward, the government agencies must set clear standards for consultations with affected communities and especially sovereign tribes, and follow clear standards for assessing the environmental impacts of infrastructure projects. This approval process must give sovereign tribes and the public ample opportunity to provide substantive input into siting decisions, before projects are approved.

I believe we must move aggressively to transition away from polluting fuels that cause climate change and towards clean and renewable energy sources, and that means looking skeptically at new fossil fuel infrastructure. But we also owe the many, many people supporting their families with good-paying jobs building pipelines and other fossil fuel projects the full measure of our energies in creating real, viable alternatives. Our country is desperately in need of huge investments in our water systems, electricity grid, transportation infrastructure, and, of course, clean energy. We should, therefore, pass without delay a major infrastructure bill that would put hundreds of thousands of people to work on such projects; and we should make sure that workers currently employed on fossil fuel projects can be the first in line for the jobs created by this bill.

Thank you, again, for sharing your views on the Dakota Access Pipeline. I hope you will keep sending your thoughts and observations my way.

All my best,

Jeffrey A. Merkley

United States Senator