Protesters block Highway 1806 late last week over fears fear the nearly 2000km Dakota Access oil pipeline could harm the Standing Rock Sioux tribe's drinking water and cultural sites. Photo / AP
Protesters block Highway 1806 late last week over fears fear the nearly 2000km Dakota Access oil pipeline could harm the Standing Rock Sioux tribe's drinking water and cultural sites. Photo / AP
In 2014, US President Barack Obama visited the Standing Rock Sioux Reservation. While there, he read aloud these words from Chief Sitting Bull: "Let's put our minds together to see what we can build for our children."
Today, it is the children of the Standing Rock Sioux Tribe who have put their minds together to help envision a safe future for themselves and who are leading an international campaign to protect their drinking water - and the drinking water of 17 million people downstream - from the threats posed by the Dakota Access oil pipeline, which would cross the Missouri River less than a mile upstream of their reservation.
Perhaps inspired by these young people, thousands of people, predominantly from tribes around the country, have gathered in peaceful demonstration and prayer near the pipeline construction site while the Standing Rock Sioux Tribe pursues legal options to protect itself.
And at this moment, the debate over the pipeline has come down to this: a simple yes-or-no decision by the Army Corps of Engineers as to whether the crude oil pipeline can cross a thin slice of federal land at the Missouri River. If the Corps gives Dakota Access a green light to proceed, there could be another potentially dangerous confrontation between an increasingly militarised construction effort and demonstrators. If the Corps says more study is needed, peace is protected while the critical issues receive needed attention.
Two members of the Stutsman County SWAT team talk while deployed to watch protesters demonstrating against the Dakota Access Pipeline. Photo / AP
When asked this week, Obama indicated his administration is considering the latter approach. Here's why that would be the right decision, both legally and morally.
Our regulatory system for approval of crude oil pipelines is in grave disrepair, as pipelines are authorised under a streamlined permitting system. But even under this system, the construction of a major crude oil pipeline under a river such as the Missouri requires thoughtful consideration. The federal easement needed by Dakota Access at the Missouri can only be granted if the US government makes a formal determination that it is in the public interest to do so, and if there are assurances that water quality, treaty rights and other public values will be protected. Such a determination can be made only after careful study and close consultation with affected parties - especially Indian tribes. The Standing Rock Sioux, as well as the Cheyenne River Sioux and other downstream tribes, are key partners in this analysis.
Perhaps the most critical element of this discussion is the question of alternatives: Is this the pipeline route that makes the most sense? Does it avoid areas of special environmental or social impacts? Does it distribute risk equitably and transparently?
No such thoughtful consideration has occurred to date. Initial US federal permits, and partnership with affected tribes, were treated as a "check the box" exercise. Nowhere was there a careful analysis of how much the Missouri River crossing threatened water quality and tribal treaty rights. Nowhere was there a thoughtful public discussion of whether a new major oil pipeline should be placed in a river providing drinking water to 17 million people. And one had to pore over hundreds of pages of technical data to learn that the original route of the pipeline crossed the river just north of Bismarck, North Dakota - a capital city that is nearly 90 per cent white - and was moved to Standing Rock only when regulators expressed concern over the risk of a spill to the city's water supply.
Three riders watch from horseback as a helicopter sweeps by near the protest site. Photo / AP
Pipeline proponents are claiming that the Obama administration has changed the rules in the middle of the game and have initiated a lobbying and public relations campaign to pressure the president. But Dakota Access never had the easement in the first place; it built a nearly 2000km pipeline to either side of the Missouri before it had authorisation to cross the river.
Dakota Access took an irresponsible gamble with its investors' money. It spent billions on a pipeline that didn't have needed federal permits, hoping either that the permits would be an afterthought or that it could pressure regulatory agencies into acquiescing. Any risks on the finances of this project are caused by the company's recklessness, not the government's efforts to comply with the law.
The safety and environmental risks posed by the project would be disproportionately borne by the children of the Standing Rock Sioux Tribe. The Obama administration is well within its rights, both legally and morally, to keep the brakes on this controversial project.
Jan Hasselman, a staff attorney at Earthjustice, is representing the Standing Rock Sioux Tribe in its lawsuit challenging the Dakota Access oil pipeline.
