#NoDAPL Scores Major Victory: No Final Permit For Pipeline

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Above photo: People celebrate at the news of the permit. All photos taken today by Kevin Zeese/Popular Resistance.

Note: This article could be viewed as an addendum to our newsletter this week.

Cannon Ball, North Dakota (Oceti Sakowin or Council of the Seven Fires Camp) – Today, the people won a major victory in the fight to stop the Dakota Access Pipeline (DAPL). The US Army Corps of Engineers sided with the Water Protectors and refused the final permit that would have allowed Energy Transfer Partners to drill under Lake Oahe. There will be battles ahead but this was another amazing people-powered victory. When people unite, we have power. This time people power defeated big oil and big finance.

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View of the camp from Media Hill.

When we arrived at the Oceti Sakowin Camp this morning, we were impressed by its size and organization. From our view on the highway, the camp stretched far into the distance and was packed with all kinds of structures. While we sat in a long line of cars waiting to enter, friendly volunteers were stationed along the road to manage traffic, make sure that we weren’t bringing any banned items into camp and orient us. News trucks were stationed on the closed portion of the highway just north of the camp entrance.

Today is the last day before the Corps of Engineers’ eviction notice is supposed to go into effect and thousands of people were converging at the camp. Some long time camp residents said that the camp population had doubled this weekend. We estimate that at least 1,000 cars and buses came to the camp today.

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Two of the Yurts at the MedicHealer Council.

The camp looked full and we were concerned that finding a parking space would be difficult. We called Popular Resistance reporter, Crystal Zevon and she met us at the entrance gate to show us around. The main street is lined with flags. We followed it to the MedicHealer area and found a spot not too far away. We had a large bag of donations to deliver.

The MedicHealer area consisted of a series of yurts with colorful doors and storage tents and sheds. The daily noon orientation was cancelled due to the overwhelming influx of new people. Margaret set to work helping to organize new donations and Kevin set out to deliver non-medical donations and find the legal tent. We saw many familiar faces, people we have worked with on a variety of  issues — climate justice, stopping extreme energy, stopping wars, racism and more.

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People hear the news of the Corps of Engineers decision at the Sacred Circle.

The courage and ethics of the participants at Standing Rock, some of whom have been there since April, were like a magnet to those of us who care about justice and the future of the planet. When the militarized police and corporate mercenaries used extreme, violent tactics, we and many others felt we had no choice but to be there — to stand with the Water Protectors at this critical moment when the Corps of Engineers was threatening to evict them and the Governor claimed there was an emergency and people had to be removed. Tens of thousands showed up in solidarity at this ceremonial, prayer camp that stood for Indigenous rights and the people and planet over corporate profit.

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Wood stoves unpacked and ready to go.

In the afternoon, the news went around that the Army Corps of Engineers denied the permit for the final phase of the pipeline. At first it was hard to believe and we were skeptical. People around us asked — who said that, what is the source? Then we heard the announcement at the Sacred Circle and we were convinced. People whooped and hollered, pumped fists in the air, beat drums and danced in celebration. 

There are many lessons from #NoDAPL that can be applied to stop other pipelines and on other issues. No doubt having 20,000+ people there the day before the Corps of Engineers said there was going to be an eviction sent a powerful message that the people would not obey. Walking through the camp today we saw people digging in for the winter. They were building long-term structures out of wood and straw bail, cutting firewood, building their health, legal and media centers, and food services — showing they were not leaving. They were installing military tents with wood stoves, indeed wood stoves could be seen in many parts of the camp ready for installation. Solar panels were also evident in various parts of the camp, ensuring a long-term energy supply.

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Youth snow sliding down Media Hill.

#NoDAPL placed the government in a lose-lose situation. There were so many people there that it would have been very difficult to clear the camp. It was reported today that there will not be efforts by  any of the agencies from local to state to federal to evacuate the camp. And if the government had tried to clear the camp against the people’s will, then that would have increased support for the Water Protectors. If they leave the camp alone, it will prevent further construction of the pipeline. This is a classic example of how nonviolent campaigns work, put the government/corporations in a situation where they have no winning alternative except to grant the movement’s demands.

We recognize this is an important victory, but not a final one. On the Sacred Stone website are also clear. They write that there are still many questions to be answered . Here are ten issues they have initially raised, no doubt more information will be coming from them soon.

1. Will the Army Corps actually conduct an Environmental Impact Statement? If so, on what portion of the project – just the river crossing, or the whole pipeline? 
2. What issues will the EIS take into account? (for example, will it include an analysis of spill risk? how about sacred sites? will it reassess the economic need for the pipeline now that the bakken is busting?)
3. Which alternative routes will be considered? Will a “no-build” option also be considered?
4. How long will the EIS take?
5. What input will the tribe have? What will the public participation process look like?
6. In what way(s) was the original Environmental Assessment prepared by the Army Corps deemed inadequate?
7. What was the result of the tribal consultation process exploring possible changes to the regulatory process for pipelines in general? have any changes been proposed?
8. How easily will these decisions be reversed by a Trump administration?
9. How will these decisions be affected by the outcomes of DAPL’s lawsuit against the Army Corps, scheduled to be heard on Friday?
10. Is the US government prepared to use force to stop the company from drilling under the river without a permit, if necessary?

20161204_131147Last week people united stopped ratification of the TPP against transnational corporate power. Now, this is a tremendous victory over the oil industry as well as their big financiers. Watch out, people may soon realize we have power when we join together and mobilize. 

We head back to the Oceti Sakowin camp tomorrow. We look forward to finding out what the next steps will be in this campaign.

  • Southern

    Great article, excellent results.

  • Aquifer

    “If so, on what portion of the project – just the river crossing, or the whole pipeline?”

    This is key – it appears they got away with it the first time by segmenting it – treating each section as a stand alone and determining that each segment, on it’s own, would not have a “significant impact” … quite aside from the questionable nature of such a determination with regard to any segment – with regard to the project as a whole it seems it would be virtually indefensible ….
    If indeed NEPA requires a “cumulative impact approach” and the Corps refuses to take that – grounds for a NEPA suit, if one hasn’t been mounted already …

    Watch out for the gutting of NEPA in Congress –

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  • Jon

    Valid, but the more immediate issue is
    “10. Is the US government prepared to use force to stop the company from drilling under the river without a permit, if necessary?”

    The example of sending National guard to protect enrolling black students in Brown vs board of Education comes to mind. I’d love to see the head honchos of DAPL be hit with pepper spray, and hauled off in handcuffs to cheers of the crowd. The warn the workers that they will be subject to arrest as well if they proceed without legal authorization.

  • Aquifer

    That’s the point – the project was segmented for environmental review purposes – as if it were a stand-alone project …

    The question still stands – will the “EIS” treat it the same way …

  • Aquifer

    The gov’t hasn’t forbidden the co from drilling under the river – in fact it seems committed to seeing the project completed, which will require drilling under the river somewhere ..

    Don’t worry about the head honchos being hit with a pepper spray, unless it’s on their salad – they are probably having lunch somewhere with Trump – and Clinton …

    They’ll get their permit to complete the project, one way or another …

  • David Schultz

    Currently it looks like Sunoco may go to court to assert the Dakota Access Environmental Assessment. There are a couple poison pill in the EA such that I find it hard to believe that they could win. Although the legal team for the Stand Rock does not appear to have any environmental engineers which is worrisome. The right engineer could literally talk for days on how the EA is a piece of shit.

    If a full Environmental Impact Statement is required it should be pushed that a third party perform that on behalf of the government. Next when the required public hearings are performed for the EIS they need to spike it with environmental engineers supporting Stand Rock. The team needs to learn how to use the comment period to their advantage. All you have to do is add up the numbers. The $25 million insurance policy is completely insufficient to clean up the reservoir even with a minor leak.

    It appears that we have relied on the Sierra Club too long for technical support on these kind of issues. We need a science and technology committee within the Green Party that can actually deal with these issues properly.

    With Trump being such a PR hound I don’t thing he had the belly to fight this thing. I don’t see a presidential order coming down after the inauguration. That’s why I think this thing is still winnable on its merits.

  • jake lamont

    Green Party? Really?

  • David Schultz

    America used to rely on the Democratic Party to create environmental policy in American. We have to admit that time is over. We need to develop a new political force to fill that void. Yes, Sierra Club tried to fill the gap but seriously they are just a club. It is not like Sierra Club has anyone in congress that can sponsor a bill. They are dependent on the failed Democrats for legislative support. This need to be organized and supported by real political action.

  • Aquifer

    Indeed, it could be requested that the someone other than the Corps fill out the EIS, but i don’t think that is a requirement … in fact, i don’t think an EIS is a requirement at all, if the EAF indicates a “negative declaration” as far as “significant environmental impact” for the project is concerned – if so that is the formal end of the process., a process that must be completed before the agency can act with respect to a permit.

    If it is anything like the NYS SEQRA, the next step for a complainant would be to challenge that Neg Dec in court – I have participated in such a suit and there is a time-frame. The question is whether the agency responsible for the EAF took a “hard look” (Holmes test) at the areas/issues they were required to address in the EAF. That is a time for presenting a great deal of knowledgeable, credible. expert evidence, including that presented in the comment period for the EAF – that the agency was, or should have been aware of, with regard to those issues – if the judge determines that the agency did not take a “hard look” at the evidence as indicated by, say, failure to address such relevant evidence, he can render that “neg dec” null and void – and no permit can be issued until the process has been completed …

    At this point, i assume that a Fed’l equivalent of a Neg Dec was issued for the EAF with regard to this process (?) but do not know whether or not it was challenged in court …

    In any case, usually it is the agency’s determination of whether or not to pursue a full EIS – I don’t know if the current Corp position is simply to “reassess” or amend its EAF, or if such a choice is allowed in the process …

    If the EAF is allowed to stand, and no EIS is required, then, it seems to me, the company can arguably sue on the basis of an “arbitrary” decision by the Corps to not grant the permit, one not justified by its environmental assessment …

    It is interesting indeed, and one that shows not only the importance of NEPA, but the intent of the gov’t to enforce its provisions AND the importance of public input in the process during the relevant time frame …

  • Aquifer

    A new political force indeed – and that “force” has to be elected to office – no amount of knowledge or expertise is of any use against a Congress who has a different agenda … Nader found that out – he said that is why he ran for office – couldn’t get in the door any other way …

  • Aquifer

    It is true, it is often the case that if one thoroughly reads a document one can find that an agency has contradicted itself all over the place, and its conclusions are not justified even by its own assertions or evidence, let alone lack thereof – I call it “poor man’s research” and it is amazing what it can turn up … Of course it always helps to have some experts call BS on the agencies “assessment” … 🙂

  • David Schultz

    The Army Corps specifically stated that an EIS could still be performed after Dakota Access performed their EA. It was a poison pill that got into the final EA. They don’t even need “The Homes” test. The EA is missing specific requirements under community outreach. The final EA completely deferred that portion to Army Corp which is highly irregular. There are obvious mistakes such as not recording officially notification of of the Tribe, Cannon Ball and Fort Yates of the draft ES.

    I cannot find that the ES was challenged on technical grounds either. This concerns me that the Tribe is being hoodwinked.

    The fast-track under NWP12 explaines how they got the rest of the pipeline approved. Since this crossing is separate by definition I don’t see where they get the legal argument to operate in this manner. Since this crossing is on Amy Corp property the United State is liable. I don’t see the legal justification for not applying 40 CFR 1506.5c and since when can they just ignore that?

  • David Schultz

    Nadar was seduced against good judgment into going for President which was beyond his resources. He should have taken what he had and gone for a Senate seat.

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  • Aquifer

    The Holmes Test, or “hard look” is the standard the court applies, or should apply, when an EAF is challenged in court ..
    As I said, i do not know how closely NEPA tracks NYS SEQRA, but generally speaking, rules of administrative law apply both to the public and to the agency in dealing with this stuff – some are procedural and some are substantive – one can get something tossed out on procedural considerations alone – without ever reaching the “merits” of the case, courts do it all the time – e.g. did all potentially interested parties get adequate notification of a proposed action – and even here that often does not require personal letters – it can be considered adequate if posted in a newspaper of “general circulation” – in NYS when an agency is considering a proposal it is posted in the DEC’s Environmental Notice Bulletin – do not know what a Fed’l equivalent might be. So one needs to keep an eye out for that stuff
    Then a certain time period is specified for comments – after that the Agency makes its determination re the EAF – and posts that. Prior to, and during that time the most input may in fact be provided by the project sponsor – and in this day and age of underfunded and undermanned Fed’l agencies, quite apart from whether they are “politically motivated”, that is often the bulk of what the agency uses to make its determination (another example of that is the FDA using info from drug companies in its approval process) That is why that comment period is the key time for folks to give input .. And, in addition, if they do not, and later sue, the court may hold that against them “why didn’t you bring this up before the Agency made its determination?” And there is generally a prescribed time period for bringing a suit ..
    In the case of Standing Rock, it sounds like there were/are a combination of procedural and substantive issues.
    As to substance, at least in NY, the EAF issues are not all about technical aspects – questions are addressed to public/community issues as well – and these can be examined in terms of whether a “hard look” was taken –
    So did Standing Rock get its foot in the door initially on a procedural question sufficient to open up the process again – at which time the clock starts again for more or new substantive issues to be introduced? If so, then methinks the Corp could simply amend it’s EAF, crossing some more Ts and dotting some more Is – to come up with one whose Neg Dec could ostensibly meet a Court challenge – thus attempting to sidestep the need for an EIS.
    If it did it could still be sued for failure to take a “hard look” – in the meantime, however, unless the plaintiffs get an injunction, the project sponsor, it seems to me could just proceed, armed with its permit issued after the Neg Dec is declared .
    Or the Agency could give it a Pos Dec and proceed with an EIS on its own, which deals only with those issues it has listed of “concern” on the EAF …
    Sorry if you know all this stuff – and feel free to correct me if i am wrong, but a lot of folks don’t know and they need to or it gets really confusing as to who’s on first ….:)
    And i am, admittedly, a bit rusty – it was over 20 years ago that i mounted my suit (and won) – who knows what they have done to the law(s) since …

  • Dona Susy

    I wonder if anyone has consulted with Dinah
    Bear, former General Counsel to the Council on Environmental Quality (CEQ), the
    environmental agency in the Executive Office of the President. She served in
    that capacity for 25 years. She’s intimately familiar with the NEPA process.
    She currently serves as Secretary of Border Action Network.