Image by Paulette Moore
On Sunday afternoon, the U.S. Army Corps of Engineers denied the easement for the Dakota Access Pipeline to cross under the Missouri River at Lake Oahe, just north of the encampments at Standing Rock. This is amazing, virtually unprecedented, and a movement victory—and the water protectors who have led the fight are right to claim it as such.
It's also likely temporary and by no means the end of this fight. Here's some context, and ideas about paths forward as best I understand right now.
The Corps denied the easement and ordered an Environmental Impact Statement (EIS), a formal study that will compare various route alternatives. Denying the easement was a stepping stone to getting to an EIS. It doesn't mean that the pipeline won't be built in its current alignment near Standing Rock eventually. The Corps is essentially hitting the pause button and initiating further study.
How does an Environmental Impact Statement work?
There are usually three phases to conducting an EIS: Scoping, Draft, and Final. The public can generally comment during each phase. The purpose of scoping is to identify what should be studied. Then the Corps and their EIS contractor prepare and release a draft, which the public is invited to comment on. They then rework the draft in light of public input and release a final version, which the public can generally also comment on. The process usually takes several months, and can last for years depending on the project's complexity. A generic timeline would be about nine months, but we don't have any actual guidance yet on the timeline for this particular EIS.
Will the ACE decision actually stop construction?
This is debatable. It would be illegal for Energy Transfer Partners to drill under the Missouri, but that's not to say they won't do it and opt to pay whatever legal penalties they incur. That would be a fairly shocking move on their part but they've hinted they may be open to doing it. It's easy to imagine that an incoming Trump administration would do their best to make the penalties as minimal as possible.
Why is it important for Energy Transfer Partners to drill right now?
Contracts with oil shippers. These contracts, called take-or-pay contracts, obligate shippers to pay money to the pipeline company over a committed period of time regardless of whether they have oil to actually send or not. It's a great deal for DAPL but not so good for the oil shippers, especially now that the Bakken oil boom isn't so hot. These contracts expire if the pipeline isn't substantially complete by January 1, and there's some chance that some shippers will choose to drop out at that point due to changing economics in the industry if the pipeline isn't complete. Sunday's decision by the Corps means that the pipeline won't be complete by January 1 unless ETP breaks the law and drills anyway.
What about Trump?
Oh, you had to ask. Once Trump is president, he will be in a position to stack the deck at the Army Corps so that the EIS is weak or biased in favor of DAPL. He might be able to stop the EIS process and reinstate the permit, though I don't know the legal specifics here yet. It's very doubtful that we'll see a full and robust EIS with Trump in office.
The upshot of Sunday's decision, assuming that ETP chooses to follow the law, is that it delays approval of the line until after Trump takes office, giving time for the contracts to expire and letting the worst of winter slide by without the need for full forces at the encampments.
What can we do in the meantime?
We can continue the work we've been doing, because it's all still relevant and helpful, and will become urgent again in just a few months.
We can go after the banks harder than ever to cut off funding to DAPL.
We can continue to spread information, lobby elected officials, lobby the Corps, hold events, train for direct action.
We can engage in the EIS process once it begins.
This isn't the end of the fight by a long shot, but it's a brief respite between battles and a sign of how far we've come thanks to the indigenous leadership and water protectors at Standing Rock.
Let's celebrate and reflect and keep fighting. #NoDAPL