Source: “Where the Sidewalk Ends” by Shel Silverstein, adapted by Adam Arnold.

The DC Court of Appeals has given the go ahead for construction of the controversial Dakota Access Pipeline (DAPL), which opponents say will threaten the environment, human health, and sites sacred to the Standing Rock Sioux tribe. Despite the setback, there remains hope that the tide is turning against construction of new pipelines.

Unfortunate Timing for an Unfortunate Decision
After lengthy, widespread protests, the Standing Rock Sioux tribe and its allies had procured a hard-won reconsideration of the DAPL. The DC Court of Appeals heard arguments on Wednesday, October 5, on whether to make permanent the earlier-issued temporary injunction that halted work on the pipeline near Standing Rock tribal lands. On the day before the observance of Columbus Day, the DC Court of Appeals decided against prolonging the temporary injunction.

The decision means that Energy Transfer Partners (ETP) – the principal company behind the DAPL – can resume work in areas considered sacred by the Sioux tribe. The Army Corps of Engineers is still reviewing its own decision-making, and has encouraged ETP, via a joint statement with the Department of Justice and Department of the Interior, to “voluntarily pause all construction activity within 20 miles east or west of Lake Oahe,” where the DAPL would cross the Missouri River. The tribe and its supporters remain steadfast in their opposition to the pipeline.

The course of progress may yet be altered for the better through the actions of those who fight against the DAPL, and questions linger about the future of this and other pipelines. However, in the quest for safe and sustainable energy, the case for optimism must be measured against a history of deference to fossil fuel interests.

First, the Good News
There have been recent victories in situations reminiscent of the DAPL. Two of note have been touched upon in previous Notes from Underground posts: the aborted Keystone XL (KXL) pipeline, and the successful fight against a long-disputed government land grant in Badger-Two Medicine, Montana.

The comparison between the DAPL situation and that of Badger-Two Medicine is straightforward: both involve fossil fuel companies attempting to make use of land without due consideration of the concerns of and impact on affected indigenous communities. In the case of Badger-Two Medicine, the issue was a government land grant for mineral rights (that is, fossil fuel exploration), which was retracted after a prolonged legal struggle. A key similarity to DAPL is that, despite considerable questions about environmental impact, the decisive factor seems to have been the sacred nature of the affected land, and long-overdue respect for the rights of the indigenous people in question. The recognition that consultation with affected tribes had been insufficient was a key reason the original approval by the Army Corps of Engineers is being reconsidered.

While indigenous rights are and should be an important factor in land-use decisions, the risk remains for unwarranted exploitation of land where the impacts are purely environmental – that is, if there is no indigenous tribe to protect the land, the land will not be protected. In this construct, large-scale, long-term harmful impacts on human health and the environment will not be enough to stop projects that do not impact tribal nations.

The KXL Pipeline’s demise, however, provides some hope.

Unsurprisingly, protests against the DAPL were inspired in part by the success of protests against the KXL. Both the KXL pipeline and the DAPL were intended to bring oil through the northern Midwest, both have been criticized as contrary to the global imperative (and Obama administration goal) to address climate change through reducing reliance on fossil fuels, and both have led to questions about the federal government’s ability to take or utilize land for the benefit of private corporations.

This last issue may be the most important, and will be discussed further below. As for the fight against climate change, the KXL dispute was timely, in that it gave the Obama Administration an ideal opportunity to push towards the recently-ratified 2015 Paris Agreement by showing resolve within the US to move away from fossil fuel dependence. It may be helpful to the anti-DAPL cause that President Obama would like to cement a legacy as an environmentally-friendly President, but it is unclear if standing against the DAPL will generate enough political capital for it to stay in the administration’s crosshairs. In any event, Obama’s intervention in the process represents a significant step for those who oppose DAPL.

Regarding the similar intentions behind the KXL pipeline and the DAPL, the KXL pipeline was intended to bring tar sand oil from Canada to port at the Gulf of Mexico, while the DAPL’s use is supposed to be entirely domestic – bringing fracked crude oil from North Dakota to Illinois. Technically, the potential impacts on tribal lands render the DAPL an “international” issue, as treaties between the US and indigenous tribes like the Standing Rock Sioux assure the tribes sovereign status. Other international treaties and agreements similarly provide autonomous powers to indigenous peoples. For example, the United Nations Declaration on the Rights of Indigenous Peoples, which the United States supports, demands free prior and informed consent from indigenous peoples whose lands may be impacted by projects like pipelines. Such consent was not given by the Standing Rock Sioux regarding the DAPL, according to international experts in the field of indigenous rights.

The distinction between domestic use and exportation is worth noting, as the pipeline’s benefits are touted as “entirely domestic.” The US obviously has a better capacity to influence domestic fuel consumption than it does that of other countries, and, second, the claims that DAPL-transported crude oil will only be used domestically are debatable, at best. ETP supported last year’s decision to allow crude oil export (after a 40-year ban during which only the export of processed petroleum products was permitted). Were the pipeline to be completed, it is unlikely that only domestic energy needs would be met by the crude oil transported via DAPL. The validity of the argument that DAPL will benefit the public it impacts is therefore diminished.

Supporters, however, suggest that taxes raised where the pipeline is laid will be beneficial to the local population. However, these benefits are not reliable, and corporate tax loopholes and fossil fuel subsidies cut deeply into that tax income. Furthermore, tax revenue may never be sufficient to offset the harm of one major pipeline leak, particularly when the public often picks up the tab.

One distinction between KXL and DAPL, which may turn out to be insignificant, is the extent of media coverage in each case: unlike with the prolonged, public debate about the KXL Pipeline, it took the media some time to shine a spotlight on the DAPL. KXL was a (slightly) larger, international project, with many stakeholders impacted. DAPL protests (and media coverage) have focused on the pipeline’s impacts on the Standing Rock Sioux, within a limited geographical area.

Nonetheless, both projects were successfully obstructed through protests that have generally remained peaceful. The success of these public protests is grounds for some optimism, but, as the next section will explore, there are major legal hurdles to overcome if the use of pipelines is to be limited rather than expanded.

Changing Public Perception through Raising Public Awareness
In 2015, TransCanada employees working in the western Provinces brought concerns to light regarding various infractions and regulatory failings during the installation of pipelines, many potentially leading to leaks, fires, or explosions – and faced retaliation for doing so. Despite what ETP and other pipeline companies would like the public to believe, new pipelines in the US are also susceptible to corner-cutting and rule-skirting. To assure that the public does not remain in the dark about potential dangers, US pipeline workers must know their rights and be able to express safety concerns without fear of reprisal.

US whistleblower laws offer protection for private industry employees who report threats to the safety of public and environmental health (for example, through the EPA website); where new pipeline construction is concerned, this protection is crucial. But, if the goal is both safety and sustainability, protection for federal workers who report corruption that unduly influences policy may be even more vital.

US dependence on fossil fuels has dictated energy policy for over a century. The extent of this historical influence is hard to accurately determine, but the George W. Bush administration provided a potent example of how significant an influence powerful corporations may hold. Without protection for federal whistleblowers, the public could remain unaware of this influence.

However, the influence of money on policy often comes in forms that are (perhaps because of the long history of this influence) legal. The long-term process for improving energy and environmental policy, then, will involve generating better laws, regulations, and legal precedent. This process begins with public awareness, and ends with legislation and court decisions that determine that the public must be aware of and involved in the decision-making process where public lands, public health, and environmental impacts of government- and governmentally-approved activities are concerned. Arrival at this common-sense destination will not be simple, but will be necessary if safe and sustainable energy is the goal.

Eminent Domain Run Amok
The stretch of the pipeline that the Standing Rock Sioux and their allies are protesting is on public land – that is, land that is government-owned. Like the failure to adequately consult with the tribe, the ability of the federal government to dispose of public land without significant public participation is cause for concern.

The government’s power to take property from one private party and give it to another is no less controversial. Because much of the DAPL passes through privately-held land, other protests are aimed at the use of eminent domain.

In the United States, eminent domain is derived from the Constitution’s Fifth Amendment, which states in part that “private property [shall not] be taken for public use, without just compensation.” On first read, it makes perfect sense: if the government wants to take your property, it must be to serve some “public use,” and you must be “justly compensated.” The latter part is indeed fairly simple. If you decide to sell your property, it is up to you – or your lawyers – to argue what compensation is just.

If you prefer that the government not take your property, however, you are in a difficult position; “public use” has taken on such a broad meaning that any argument the government makes is generally sufficient. It is a low bar, which constitutional lawyers call “Rational Basis.” That is, the government need only show a logical connection between the taking of property and some public benefit, even if many more logical connections support doing otherwise. The seminal case is Kelo v. City of New London (2005), in which the city of New London, Connecticut, was granted permission to demolish citizens’ private homes as a part of a vague plan for economic revitalization, which ultimately never really came about. This is to say, then, that a private citizen who does not want property taken for a “public use” will have a hard time winning a court case under current precedent.

A better methodology would adopt a balancing test, like those used in court decisions in various areas of the law. Such a test, regarding eminent domain for pipeline use, would balance the benefits provided by the pipeline against the risk of harm and other considerations. The risk of harm takes into account both the likelihood of harm and the degree of harm: an exploding pipeline, for example, or one which leaks a quarter-million gallons of fuel, poses considerable risk, even if such occurrences only transpire every few weeks. Other considerations would include whether there are safer options, whether the benefits are going to private, rather than public recipients, and whether those beneficiaries also share the risk, or if the risk is felt in one place while the benefits go to another. All of these considerations would count very strongly against any government taking of land for the construction of new pipelines.

Current precedent, however, is a far cry from this ideal. And, lamentably, this is not the only legal obstacle. Permitting requirements and federally-mandated Environmental Impact Statements (EISs) could both stand in the way of future pipelines, but the fossil fuel industry enjoys considerable privilege in avoidance or ready acceptance of its “obligatory” permits, and the government offers various exceptions and exemptions from its own requirements, particularly where energy infrastructure is concerned. While exploring these issues in depth is beyond the scope of this post – given bureaucratic elements that are Byzantine in their complexities – these are areas that must be addressed if we, as a country, wish to move toward clean, sustainable energy, and away from dirty oil and dangerous pipelines.

Projects like the DAPL, which by their nature impact the environment both locally and globally, cannot be rubber-stamped or grandfathered; each must be scrutinized in the light of our current understanding of the environment, and our current technological capability for generating clean energy.

One indication of progress is that the Obama Administration has recently presented guidance for federal agencies, requiring the inclusion of direct and indirect greenhouse gas emissions as a part of each EIS. While non-binding, consideration of climate impacts within each EIS will help in our move away from fossil fuel reliance. However, there are other downsides in addition to the non-binding nature of National Environmental Policy Act (NEPA) regulations: the new rule will not apply to already-completed assessments, will still be subject to existing exceptions and exemptions, and will allow considerable flexibility for the agencies conducting the assessments. Nonetheless, the new guidance is a step towards sustainability.

Solutions: Better Pipelines, Better Transportation Options, or Option C
Pipeline companies’ websites constantly stress how safe pipelines are. (See here and here, for example.) On Energy Transfer Partners’ own web page for information about the DAPL, the company goes to great lengths to reassure the public that the DAPL will be harmless, and even beneficial to the environment. (The page is a must-read for vague, unsupported assurances to an unsuspecting public.) The claims of safety and environmental responsibility ring hollow against the backdrop of seemingly countless pipeline incidents and accidents. The troubles associated with any pipeline are the same, and proportional to the pipeline’s size; the DAPL will measure over 1100 miles – nearly as long as the abandoned KXL. Pipelines rust and fail and are difficult to monitor, they leak and taint water and arable land, and they can explode unpredictably, sometimes killing unsuspecting people in the vicinity. In North Dakota these dangers are very familiar.

There are thousands of miles of pipelines of all types already running through North Dakota, many of which are in disrepair, and the condition and even the location of many more are unknown. One argument suggests there should be no need for new pipelines through North Dakota when the state already has so many running through it. Of course, not all pipelines are suited to all purposes, and old or ill-maintained pipelines may not be suited for any use at all. But the land where these pipelines can be found has already been taken for the purposes of pipeline building. Why not simply build new, better suited, better quality pipelines along these existing routes? Bakken crude could theoretically travel through North Dakota along existing pipeline routes, if the pipelines in question were upgraded for the purpose.

Using or refitting existing pipelines could have offered a potential solution to the current Dakota conundrum – and one which could have been much less expensive, as considerably less purchasing and clearing of new private land would have been necessary. ETP’s DAPL website states that the company is using existing routes to the greatest extent possible, but that some cannot be used for proprietary or other reasons. But even if such an arrangement could have been made, two major issues would still exist: first, whether the initial grants for the land occupied by existing pipelines should be valid (i.e., were they green lighted without modern Environmental Impact Statements and without proper consultation of affected indigenous groups?); and second, whether the potential impacts on the environment and on tribal interests are adequately addressed through existing permitting practices and precedent. Since older pipelines were not held to modern standards and, as noted, modern standards are excessively flexible, perhaps we need to remove or modernize all existing pipelines before installing new ones.

A third question, of course, is whether the construction of new oil and gas pipelines can possibly be consistent with the global and domestic goals of limiting fossil fuel consumption and reliance. The answer to that question can comfortably be assumed to be “no.”

What is the alternative? The standard suggestion is to transport more oil and gas by train. Yet pipeline proponents argue that pipelines are statistically safer than other methods of transportation, including rail. North Dakota is one of many places where oil trains have leaked, derailed, or exploded. These so-called “bomb trains” are the target of protests, as well (an issue previously discussed by CSPW, and a focus of one of CSPW’s “Know Your Rights Campaigns”). The choice between pipelines and trains is no choice at all. Indeed, one constant in the production, transportation, and consumption of fossil fuels is that none can be done without significant risks to human health and the environment.

With neither pipelines nor other modes of fossil fuel transportation environmentally viable, only one solution remains that is consistent with US and global policy: Option C, then, is that we must limit reliance on fossil fuels.

Eliminating fossil fuel use entirely is not a realistic goal, certainly in the short-term, but limiting our dependence will allow for more effective monitoring and maintenance of existing infrastructure, it will allow for the upgrade of deteriorating pipelines and railways, and it will encourage the development of more locally-sourced energy, such as small solar, wind, and hydro energy production, potentially expanding the application of renewables (as through the replacement of gas power plants, and more widespread use of electric vehicles). Sustainable energy policy will not be easy to implement, but the alternatives and their adverse impacts are all too familiar in places like North Dakota.

The DAPL protests have seen accusations of violence and vandalism, criticism of the use of pepper spray and attack dogs against protestors, arrest warrants issued for journalists and presidential candidates, and questions aplenty about the power of fossil fuel companies to influence government policy. Still, there is movement in the right direction. In the wake of the shutdown of the KXL pipeline and with increased attention on the environmental impacts of pipelines and the rights of indigenous peoples, the value of new fossil fuel infrastructure will increasingly be weighed against its negative impacts.

In contrast, laws and legal precedent still provide numerous loopholes and shortcuts for the approval of environmentally unfriendly infrastructure. The DC Court of Appeals’ decision affirms that foresight, caution, and respect for indigenous peoples still take a backseat to short-term corporate ambitions. The excessive influence of the fossil fuel industry on policymaking still poses a significant obstacle, as do a long history of abuse of indigenous peoples’ rights and widespread corporate disregard for the environment.

By bringing many of the issues to the surface of public discussion, the fight against the DAPL will hopefully provide an important step in the quest for safe and sustainable energy.


Environmental Counsel Adam Arnold worked with GAP’s clinical program while earning his J.D. from the University of the District of Columbia’s David A. Clarke School of Law, is a member of the Maryland Bar, and has an LL.M. in International Environmental Law and International Organizations from American University’s Washington College of Law.