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Dakota Access Opposition Still Formidable Despite Final Easement

Given fresh life on Tuesday, the $3.8 billion Dakota Access Pipeline (DAPL) may be in service before mid-year with the capacity to transport more than half of current Bakken Shale oil production in North Dakota, but opposition to the project is still loud and determined to block the 1,200-mile pipeline route from the finish line.

Since last August, when the Obama administration intervened in the project, which already had completed a two-year regulatory process, DAPL has been in and out of court amid attempts to re-start the environmental review for the route, which winds through North and South Dakota, Iowa and Illinois.

The U.S. Army Corps of Engineers (Corps) on Tuesday granted a final easement on a last water crossing, which has been turned into a national cause for Native American and environmental interests. Despite the level and duration of the opposition, none of the regulatory or court vetting has determined that Native American or environmental protections are at risk.

The project doesn't cross Native American lands, but the Standing Rock Sioux Tribe in south-central North Dakota has led the opposition. Standing Rock Sioux and leaders of other Indigenous nations have pledged a long fight in the courts and protest encampments for the project. Backer Energy Transfer Partners (ETP) and others in the industry had at one time considered the pipeline’s approval would face an easier path, as the Bakken, which currently produces 1 million b/d, needs more takeaway capacity.

Noting that the nation needs more energy infrastructure, Sen. John Hoeven (R-ND) urged people "to work together to ensure people and communities rebuild trust and peacefully resolve their differences." However, opposition leaders sounded determined to carry on their fight.

"The drinking water of millions of Americans is now at risk," said Standing Rock Sioux Chairman Dave Archambault II. "We are a sovereign nation, and we will fight to protect our water and sacred places from brazen private interests trying to push this pipeline through; Americans have come together in support of the Tribe asking for a fair, balanced and lawful pipeline process."

Attorneys for the tribe argue that the easement cannot be legally granted with the previous full EIS order outstanding. They claim the Obama administration recognized the Sioux's treaty rights, but the Trump administration is ignoring them.

In addition to a national Native Americans' march on Washington, DC, March 10, attorneys for the Sioux said on Tuesday that they plan to:

  • Seek to shut down pipeline operations if DAPL is successful in building the final link in the pipeline and begins to move crude oil;
  • Ask a federal court to order ETP and other operators of DAPL to disclose their record of past spills; and
  • Challenge the Corps easement on the grounds that it violates its Dec. 4 action ordering that the pipeline undergo a full environmental impact statement (EIS) review.

Supporters of the pipeline argue that the approval ignores the two years of state and federal scrutiny, which culminated last July last when the Corps district office in Omaha, NE, granted the easement, noting its staff review found DAPL would not be "injurious to the public interest" and would not "impair the usefulness of work built by the United States."

Late last summer, with a protest encampment near the construction and the stalled water crossing, the Obama administration began to pause the project and reverse previous Corps actions, which led to industry critics claiming political interference with a regulatory process.

The Obama administration in early December punted the decision to the next White House occupant, denying a final easement to cross under Lake Oahe, choosing instead to seek alternative routes to satisfy concerns of the Standing Rock Sioux. A few days after being sworn into office, President Trump signed two presidential memorandums to advance construction of DAPL and the long-controversial Canadian-based Keystone XL oil pipelines.

It is somewhat ironic that in the end the federal government -- elected officials, regulators and the courts -- has played the pivotal role in DAPL. In its long-planned approach to the major project, ETP's Dakota Access Pipeline LLC unit greatly minimized the project's passage over federal lands in the four states. Last May at an industry conference in North Dakota, the ETP executive in charge of building the 30-inch diameter pipeline, Joey Mahmoud, engineering senior vice president, told his audience the project was on track for a year-end 2016 start up.

At the time, Mahmoud emphasized that the pipeline would provide a "safer, cleaner and cheaper" means of moving Bakken supplies to markets throughout the nation, focused on the Gulf and East coasts. "It is a pretty important project for the Bakken as a whole," he said.

"One of the little recognized successes of this project is that out of 1,172-mile route, we literally cross federal land for less than five miles of the entire length,” Mahmoud said at the time. “That is less than 0.5% of the project in which you have to deal with the federal government." Overall, including various river crossings from a jurisdictional standpoint, the amount of the project falling under federal oversight is less than 3.5%,.

DAPL's size has both heightened opposition and buoyed supporters. As planned, the project would have 100,000 b/d of capacity for its initial segment to the Stanley and Ramberg tank terminals in North Dakota, from which takeaway capacity would be expanded to carry up to 600,000 b/d between Watford City's tank terminal and the South Dakota border.

Construction began last spring after Iowa regulators became the fourth and final state to give their approval to the project. When construction began, not all the rights-of-way had been acquired, but 88% had been secured in the four states collectively in a project in which ETP needed to cross nearly 3,700 separate properties along its complete route.

Separately on Tuesday, the Seattle city council voted to cut its ties to Wells Fargo Bank because of the bank's role in helping finance DAPL.

Still unfolding is the disbursement and clean up of protest encampment in North Dakota, which still includes several hundred people, even though both the Corps and Standing Rock Sioux's Archambault have directed them to leave. Meanwhile, local authorities in North Dakota report the camp site now includes massive amounts of garbage. News reports indicated cleanup crews have so far hauled away 23 truckloads of trash, and estimate it may take another 250 truckloads to fully clean the camp.

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