December 16, 2016

Ragina Johnson explains what was won and what still has to be fought for with the decision of federal authorities that blocks construction of the Dakota Access Pipeline.

DECEMBER 4 brought a significant and badly needed victory for the water protectors at Standing Rock confronting the Dakota Access Pipeline (DAPL).

The determination of the Standing Rock Sioux Tribe (Hunkpapa Lakota) to stop the "black snake" and the sheer number of supporters who traveled to the remote Lakota territory to stand in solidarity won out against a fossil fuel industry used to getting its way, backed up by the state of North Dakota and its armed-to-the-teeth police forces.

The U.S. Army Corps of Engineers' denial of an easement permit to the pipeline builder, Energy Transfer Partners (ETP), to drill under the Missouri River is far from the final victory. But it is a substantial one that won't be easily defied or reversed, and we should celebrate that.

The water protectors and everyone who sympathized with and supported their cause are understandably fearful that the Army Corps decision won't stand--that it will be ignored by a fossil fuel company with big profits at stake if it completes the pipeline or quickly overturned by the incoming Trump administration already filling up with oil-and-gas bosses and climate change deniers.

Water protectors at Standing Rock are celebrating a victory after a permit needed for construction was denied (Sumaya Awad | SW)

Indeed, the pipeline builders haven't removed equipment from the landing pad they hope to use to drill under the Missouri River, and the North Dakota police still have roadblocks in place to obstruct protesters.

But lawyers and political commentators say it won't be so easy for either ETP or a new administration to simply bypass the Army Corps action.

And water protectors--like LaDonna Brave Bull Allard, who has hosted the Sacred Stone Camp on her land on the Standing Rock Sioux Reservation, or Chase Iron Eyes, who is also Standing Rock Sioux--are calling for the protest encampments to remain to make sure that work doesn't go ahead on DAPL.

The struggle to stop DAPL once and for all isn't over, and many other fights to confront relentless fossil fuel extraction that routinely violates the treaty rights of Indigenous nations and poisons our water, air, land and people are just beginning. But it is important for our side to understand that there is substance to this latest victory, which gives us something to build on for the future.

To decide where we go from here, we need to answer some important questions: What are the economic stakes for Energy Transfer Partners to complete the pipeline? What has the movement achieved so far? What could Trump do to overturn the easement denial? What could stop him? What are some of the next steps in the struggle?

THE ARMY Corps of Engineers decision denies ETP the easement permit it needs to drill under the Missouri River, a last critical step to completing the 1,172-mile, $3.8 billion project by its end-of-year deadline.

Instead of approving the easement under Lake Oahe, the Army Corps ordered a full environmental impact statement and a review of possible new routes to take the pipeline away from the Standing Rock Sioux Tribe's treaty lands.

On December 9, ETP lawyers went to court to try to push through the final construction of the pipeline despite the easement denial by the Army Corps. According to the Indian Country Today Media Network, ETP asked for an expedited decision on several legal questions, complaining that it was losing close to $20 million a week because of delays on the pipeline project.

But ETP had a disappointing day in court. Judge James Boasberg said that he wouldn't render a decision on ETP's expedited motions--in the meanwhile, there will be an exchange of legal briefs between the company and the Standing Rock Sioux Tribe to be completed by early January.

ETP is under financial pressure due to the resistance of the water protectors at Standing Rock hindering construction of the pipeline. The company "has contractual obligations to flow crude oil through the pipeline by January 1, 2017," Indian Country Today reported--if it doesn't, the companies that made deals with ETP can cancel or renegotiate.

ETP has lost $450 million already, according to a Wall Street Journal report, and those losses could rise to $1 billion by the time a decision is rendered.

Other analysts speculate that ETP's funding for the project is in jeopardy. The firm underwent a financial restructuring, agreeing to be acquired by the similar Sunoco Logistics Partners, in the hopes of preventing the rating on ETP's debt from being downgraded to junk status.

An Indian Country Today article quoted investment writer Matthew DiLallo explaining why the Army Corps decision came at a bad time for ETP and Sunoco. "Not only are the companies in the process of merging, but they are working to close the sale of a minority stake in the project for some much-needed cash to bolster their financial situation, which has been under pressure from the oil market downturn and these delays," DiLallo wrote.

The pipeline pushers were hoping that Judge Boasberg would bail them out, according to DiLallo, but his scheduling of a decision for February is another blow to ETP's plans.

Many water protectors are rightly fearful that ETP would press ahead with construction despite the Army Corps decision. After all, the company violated an injunction in place for over a month starting in the beginning of September, and it twice defied requests from the Army Corps to halt work over the past two months.

But by trying to get the courts to overturn the Army Corps' denial of an easement, ETP seems to have acknowledged that it can't carry out 90 days of complex drilling under the Missouri without the government or anyone else knowing. And with the restructuring and merger in the works, the funders of DAPL are likely to want a project that has been government-approved and aboveboard legally.

WHAT ABOUT Trump? Can he quickly overturn the Army Corps' denial of an easement for drilling when he arrives in the White House on January 20?

Clearly Trump is no friend of the water protectors nor the millions of people in this country and beyond who are interested in stopping climate change.

Kelcy Warren, ETP's CEO, was a donor to Trump's campaign. Trump has said he wants to put resources into energy infrastructure projects, push more fossil fuel extraction, and build more pipelines like DAPL and the canceled Keystone XL.

Then there's the oil-and-gas mafia who are lining up to fill positions in the new administration. Trump's pick to run the Environmental Protection Agency (EPA), Oklahoma Attorney General Scott Pruitt, "has sued to block nearly every pollution regulation the Obama administration has enacted," Vox wrote in a report.

Trump is putting forward ExxonMobil CEO Rex Tillerson to be the next Secretary of State. His choice for energy secretary, Rick Perry, the former governor of Texas, sits on the board of directors for ETP.

People are right to fear a coming Trump administration filled with corporate CEOs, fossil fuel energy tycoons and politicians connected to energy extraction who are proud climate change deniers.

They no doubt would want to reverse the permit denial for DAPL construction, along with drastically weakening the EPA. But according to legal experts, that's easier said than done.

For example, Jan Hasselman, one of the attorneys for the Standing Rock Sioux, told ABC News, "It's not as simple as the stroke of a pen. It's going to be subject to the same legal standards that any government decisions are, and will be subject to close judicial rule by a court."

In the same ABC News article, William Buzbee, a professor at Georgetown University Law School, speculated about several options for Trump to pursue.

One, Buzbee said, would be to allow the environmental impact statement ordered by the Army Corps to proceed and hope for a positive outcome for ETP, though that will take some months.

Two, Trump could try to get Congress to "carve out a protection" for one specific pipeline--but while the GOP controls both the House and Senate, the legislative road would also take some months, with no guarantee of success and with ETP bleeding money the whole way.

Another option, according to Buzbee, would be for Trump to pressure the Army Corps to re-examine its decision and reverse course. But even if this succeeds, it would almost certainly lead to more lawsuits against the Army Corps or the administration.

Michael Brune, executive director of the Sierra Club, pointed out that the nearly two-month delay before Trump takes office will also make things more difficult. "[A]n Environmental Impact Statement will have already begun," he said. "And to reverse that, aside from the politics and the morals and ethics of that, would be a challenge to do legally.

Of course, there's no guarantee that Trump couldn't force through permission to get DAPL completed, especially if his administration makes this a top priority.

But there are a number of factors--from the financial pressures on ETP as it loses huge sums because of construction delays, to legal restrictions on executive actions, to the slow pace of the federal bureaucracy--that make it more complicated and time-consuming than the proverbial "stroke of a pen."

And more important than anything else is the factor that pressured the Army Corps to act: the nearly yearlong mobilization against DAPL at Standing Rock and the widespread sympathy around the country with the struggle to stop the pipeline.

THE ARMY Corps decision suggested that the pipeline builders might need to "explore alternate routes" to build DAPL.

This outcome isn't what the majority of the #NoDAPL resistance movement wants: an end, once and for all, to the black snake and the many threats to the planet it would contribute to.

However, if the environmental impact findings conclude the DAPL would have to be rerouted, it would be very costly for ETP to do this, given the long delays already.

In fact, DAPL was already rerouted once. It was originally supposed to go through Bismarck, North Dakota, one of the state's biggest cities, north of the Standing Rock Sioux Reservation. But the route was rejected, at least in part because of fears of the impact of a spill in a "high consequence area."

If ETP can't drill under the Missouri River, it would be hard to find another route at all. The Missouri passes through most of North Dakota and is connected to another large body of water, Lake Sakakawea, which sits on the Three Affiliated Tribes land (the Mandan, Hidatsa and Arickara Nations of the Fort Berthold Reservation).

Even if a route could be found to meet the Army Corps' approval, the question of water contamination in the case of a pipeline spill would be an issue at any point along the Missouri--as was shown by the recent spill from the Belle Fourche Pipeline into a tributary of the Little Missouri River, discovered on December 5 by a farmer.

WHAT ARE the next steps in the struggle ahead?

The Standing Rock Sioux have asked people to not travel to Standing Rock at this time due to harsh weather conditions. Leading organizations on the ground--the Sacred Stone Camp, Indigenous Environmental Network, International Indigenous Youth Council and Honor the Earth--published a joint statement expressing support for the water protectors who choose to stay at the camps.

Standing Rock Sioux Tribal Chairman Dave Archambault II has asked people to return home once the weather clears, and many will do so. Others will stay to hold the space, advance our reclamation of unceded territory affirmed in the 1851 Treaty of Fort Laramie, and continue to build community around the protection of our sacred waters. They will also keep a close eye on the company, which has drilled right up to the last inch it can, and remains poised and ready to finish the project.

The statement went on to thank supporters for the solidarity shown in the struggle--and urge them to keep up the fight:

We do not have sufficient words to express the gratitude and love we have for all the people who have come to Standing Rock to protect the water. We have traveled far, given up much and taken extraordinary risks. We have endured serious hardships and physical violence, and shown courage, passion and determination in the face of impossible odds. We have come together across the lines that divide us and gathered in solidarity to demand an end to 500 years of oppression of Indigenous peoples--to demand respect for Mother Earth and clean water for all our relatives and future generations. We absolutely cannot let this transition break us apart. We must stay together, we must keep building momentum... We ask you to join us in an unprecedented divestment campaign to kill the black snake financially. We will also ask you to engage in the development of the Environmental Impact Statement to the extent that the public is invited to participate, and guide you through that process. But let us use this time to cut off funding for the project.

MANY OF the same organizations responsible for that statement were part of a call for a month of action in December against DAPL funders. As the call points out, the financing of the project could be jeopardized if the project misses its completion date of January 1.

The DeFundDAPL website shows that as of November 25, more than $22 million has been withdrawn from banking institutions involved in financing the DAPL project.

Alongside this month of action, the movement needs to keep an eye on the growing tentacles of energy pipeline projects across North America, not to mention over water. Despite the fall in the price of oil, energy corporations, with the support of the U.S. and Canadian governments, want to ramp up production to sell to offshore markets.

First Nations are currently coming together and organizing a fight against Kinder Morgan's newly approved Canadian oil pipeline and the proposed Enbridge Line 3, as well as increased tanker and barge traffic. The Lummi Nation and Mohawk Nation and are taking inspiration from the movement at Standing Rock.

Solidarity among Indigenous nations is growing. In the summer of 2015, 115 First Nations signed a historic treaty to fight extraction projects--the Mohawk, Algonquin, Innu, Malécite, Atikamekw and Mi'gmaq nations in Quebec were among them.

Kanesatake Grand Chief Serge Simon, a co-founder of the Treaty Alliance Against Tar Sands Expansion, described the alliance clearly and powerfully: "The way it works with our allies is their fights are my fights and vice versa."

This message of solidarity, expressed on a daily basis in the resistance camps at Standing Rock, is one we must remember in the many struggles ahead of us.

The fight is far from over. We will keep our eyes on Standing Rock, knowing we may need to take up the call to return in the months ahead, and stand shoulder to shoulder with our Lakota sisters and brothers.

In the meantime, all those who supported Standing Rock can take part in the #NoDAPL divestment movement and pressure the federal government in any way we can to make sure the environmental impact statement honors the just concerns of the Lakota.

We also must build a united struggle to take on the black snake wherever it rears its ugly head--which will sometimes be in our own backyards.