Updated on December 5 at 12:50 p.m. ET
Surely some of the protesters believed they would prevail, but among the experts—the law professors, financial analysts, and industry journalists who pride themselves on knowing the ins and outs of federal rules—almost no one expected it. The so-called experts were getting ready to shake their heads and sigh, to lament that once again a federal agency had failed to respond to a historic protest and had failed to protect the most vulnerable.
And then the incredible happened.
On Sunday afternoon, the U.S. Army Corps of Engineers legally blocked the construction of the Dakota Access Pipeline, denying it a needed easement to drill beneath the Missouri River.
The corps will now investigate and write an environmental-impact statement, a roughly two-year process that will assess the risks of building a pipeline so close to the Standing Rock Sioux’s water supply. It will specifically examine whether the pipeline should be moved or cancelled altogether.
“The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing,” said Jo-Ellen Darcy, the Army assistant secretary for civil works who oversees the Corps of Engineers, in a statement.
In doing so, the Corps recognizes the demands of the “water protectors,” the indigenous and non-native people who have assembled in protest camps at Cannon Ball, North Dakota, since the spring. The protests had charged the Army Corps never investigated the full environmental risks of the pipeline’s construction.
Cheers and cries of joy went up when Dave Archambault II, the chairman of the Standing Rock Sioux Tribe, announced the Army Corps’s decision to the protesters. “You all did that. Your presence has brought the attention of the world,” he told the group, according to The New York Times.
“We wholeheartedly support the decision of the administration and commend with the utmost gratitude the courage it took on the part of President Obama, the Army Corps, the Department of Justice, and the Department of the Interior to take steps to correct the course of history and to do the right thing,” Archambault said in a further statement.
Energy Transfer Partners, the company building the pipeline, calls the decision “just the latest in a series of overt and transparent political actions by an administration which has abandoned the rule of law in favor of currying favor with a narrow and extreme political constituency.”
The firm says that previous filings by the Army Corps, and two federal court rulings, support that it “played by the rules” with the pipeline. And it adds that it “fully expects to complete construction of the pipeline without any additional rerouting in and around Lake Oahe. Nothing this administration has done today changes that in any way.”
Upon completion, the $3.7-billion Dakota Access pipeline would stretch more than 1,100 miles, linking the oil fields of North Dakota’s Bakken formation with a river terminal in southern Illinois. Energy Transfer Partners sought to avoid the acrimonious public battles that doomed the Keystone XL pipeline by running the Dakota Access pipeline entirely across private land. This freed the firm from seeking public permits in some states. But the pipeline still required the federal government’s permission to drill beneath the Missouri River, a federal waterway.
Jim Dalrymple, the governor of North Dakota, called the Army Corps’s decision a “serious mistake.”
“This purely political decision flies in the face of common sense and the rule of law,” said Craig Stevens, a spokesman for the MAIN Coalition, an industry group that primarily exists to defend the pipeline. “Unfortunately, it’s not surprising that the president would, again, use executive fiat in an attempt to enhance his legacy among the extreme left.”
But rule of law is a tricky thing in this case—and, indeed, in all cases where tribal and federal claims conflict.
* * *
The land that the Dakota Access pipeline crosses today is considered to be private land, but it was granted to Sioux tribes in the 1851 Treaty of Fort Laramie. The status of this treaty remains contested. Since the middle of the 20th century, the U.S. government has sought to allay broken treaties with all Native nations by compensating them for lost land. The Sioux have declined to accept any payment, which is why a payment of more than $1 billion sits in federal accounts.
Were the Sioux to accept the U.S. government’s payment, they feel it would effectively cede the treaty claims. Since a 1980 Supreme Court decision, the U.S. government more or less officially considers the Sioux treaties to be settled.
This is how there could be such consternation over the pipeline’s construction site itself. Energy Transfer Partners could correctly say they were building it on private land, not on the present-day Standing Rock Sioux reservation; but the Sioux could correctly refer to the contested ground as tribal or treaty land, referencing the 1851 agreement.
And though it’s not really at issue with the pipeline, it’s not entirely clear why the Supreme Court should get to rule on the case. Under some readings, Article VI of the U.S. Constitution grants treaties as equivalent to the Constitution itself, “the supreme Law of the Land.” Neither of the U.S. government’s treaties with the Sioux recognized the jurisdiction of the Supreme Court. Though the Standing Rock Sioux has secured other victories through the U.S. legal system, it’s unclear why American justices should get to arbitrate historical treaty terms—at least, going back to that rule of law thing again.
Yet this is not even the principal legal dispute in the Standing Rock case. Two pieces of federal legislation are meant to protect the tribe’s interests in the case. The first, the National Historic Preservation Act, allows the tribe to identify sacred land or cultural sites before the government allows construction that would destroy them. The second, the National Environmental Policy Act, forces the government to consider the environmental impact of any agency action.
Did the Dakota Access pipeline meet the requirements of these two laws? This became the salient question.
Over the summer, Energy Transfer Partners and the Army Corps of Engineers said that the Standing Rock Sioux did not respond their attempts to identify cultural sites near the pipeline. The tribe argued that the Corps’s requests were always limited in scope. The Standing Rock Sioux felt that they were essentially given no opportunity to consult as broadly and expansively as the law requires.
In September, U.S. District Judge James Boasberg sided with the pipeline company on that argument.
But the environmental-impact question proved thornier. The Army Corps of Engineers never conducted an environmental impact statement for the pipeline, instead approving it under a nationwide permit used only for short water crossings and wetlands preservation. The tribe claimed that this meant that all sorts of environmental risks—like, say, the pipeline leaking into their only source of drinking water—were not taken into consideration.
With this weekend’s decision, the Army Corps of Engineers has now reversed its previous granting of the easement. It evidently agrees with the tribe. The Dakota Access pipeline will now be fully judged for its environmental impact.
If this all seems complicated and mired in technocratic reasonableness, that's because it is. Yet the federal law is meant to ensure a kind of historical justice. The Standing Rock tribe succeeded because their argument was simple: As a sovereign nation, they had the right to control the integrity of their natural resources. To many protesters, the pipeline—like American expansion on the frontier itself—was one more vast mechanism that linked resource extraction to distant marketplaces far away, with little consideration of the sacredness of all the important places it was ruining on the way.
“The effect of this protest was to make the administrative state do its job,” said Sarah Krakoff, a professor of law at the University of Colorado. “It read the statutes, it listened to its president’s general policy goals, and then it did its job. It’s the state working as it should work, responding to citizen concerns. And the upshot isn’t some dramatic decision—it’s ‘oh, let’s go back and follow [the National Environmental Policy Act].”
* * *
The story of the pipeline will now likely enter a new and less outwardly dramatic phase. The environmental-impact statement will take about two years to complete; no matter what it finds, it will almost certainly be followed by legal wrangling about what it requires.
Because of an earlier Obama administration regulation, the Army Corps must also now consider how the pipeline will worsen climate change.
The Trump administration could seek to abort the environmental-impact process, but it might require reaching far into the Department of Defense bureaucracy. The chief of the Army Corps of Engineers is not a political appointee.
President-elect Trump supports the construction of the Dakota Access pipeline along the current route. According to multiple reports, he also owns stock in Energy Transfer Partners. He has said this does not affect his policy position.
“It would be really unprecedented for the president-elect to tell the agency to reverse the decision,” said Krakoff. “It would cause all kinds of consternation about undue executive interference.”
Even before the reversal, most experts believed that Obama himself had little power over the agency’s final decision. “The reason these statutory and regulatory procedures are in place is to avoid arbitrary and unconsidered decisions by an executive,” Monte Mills, an Indian law expert at the University of Montana, told High Country News last week.
“If such authority were allowable, you could imagine a President, perhaps for political or economic reasons, deciding to approve a pipeline without following the tribal consultation process at all,” Mills added.
If the Trump administration were to reverse the decision, it might not even evade the same legal wrangling. The Army Corps of Engineers could be sued for arbitrarily reversing a previous agency decision. (Likewise, Western Energy Partners might now pursue a similar strategy.)
It’s also unclear whether Energy Transfer Partners will completely stop building the pipeline. The pipeline stands completed at either end of the Missouri River—the construction crews really were waiting for the final easement approval. Energy Transfer Partners could possibly continue drilling under the river and open themselves up to hefty federal fines.
In September, the company allegedly continued building the pipeline despite the fact that a federal court was considering an injunction.
Even larger questions loom beyond a pipeline in North Dakota. As a rule, indigenous issues do not command mainstream progressive attention in the United States, as they do in Canada, New Zealand, and parts of Latin America. Historians say that the U.S. public has not been so involved in debates about Native rights since the 1960s and 1970s, when disputes over fishing rights in the Pacific Northwest opened a new front in the American civil-rights movement.
“The question I have is: Where will all this energy from the organizing and the activism go? Will it continue to support Standing Rock in particular? Will it continue to support Sioux tribes in general?” asked Krakoff.
She continued. “Will it continue to support other tribes? There are tribes all over the country that fight off development projects that are harmful to them and their sacred land without this kind of national focus. Will it fold into an environmental movement that is supportive of indigenous peoples? Will it go somewhere especially productive in this moment?”
The remarkable outcome of the Standing Rock protest may let us glimpse the coming years of the American environmental movement. A group of protesters upended their lives to defend the claim that the tribe should have a say over its natural resources. Specifically, the “water protectors” claimed that the legal rights granted to them by the United States government—through treaties in the 19th century and through federal laws in the 20th—should be as valid today as any other promissory note.
Against the odds and the expectations, the group swelled. It captured the sympathies of millions of people around the country and the globe. Eventually, it awoke the moral imagination of the federal regulatory state. Now a years-long battle in court—over statutory particularities, over the level of acceptable risk, over the letter versus the spirit of the law—will follow.
What won this victory at Standing Rock? The answer is indisputable. In great numbers, people put their bodies in the way to declare and defend their rights. In so doing, they revealed what legal rights are: not just idle promises, not just nice things to have, but the material guarantee of safe drinking water and community self-determination. In so doing, they forced a moral reckoning within the federal deep state, the multitude of administrators and civil servants who ensure the day-to-day functioning of the United States government. In so doing, they pose a question: Can the same deep state defend the virtue and integrity of its decisions in the years to come? The consequences will ripple far beyond the grassy plains of North Dakota.
“Throughout this effort I have stressed the importance of acting at all times in a peaceful and prayerful manner—and that is how we will respond to this decision,” said Archambault’s statement. “With this decision we look forward to being able to return home and spend the winter with our families and loved ones, many of whom have sacrificed as well. We look forward to celebrating in wopila, in thanks, in the coming days.”