DAPL Hiatus Shows Why NEPA Is Crucial

Despite this victory for water protectors, Trump is still dismantling environmental protections

Aaron Hedge
Climate Conscious


A federal judge on the D.C. Circuit stopped the Dakota Access Pipeline (DAPL) from operating Monday and ordered the oil removed from it, citing a 1970s federal law requiring U.S. government agencies to conduct rigorous environmental assessments before rubber-stamping building projects.

An intense, years-long protest has swept the region containing DAPL, which extends from North Dakota through Illinois. The movement says the pipeline threatens Indigenous water supplies and demands the project be dismantled.

Judge James Boasberg said in the ruling that the Army Corps of Engineers had violated the National Environmental Policy Act (NEPA) by not conducting a thorough review on one construction site, pausing the operation of the pipeline.

Ron Ness, president of a North Dakota fossil fuels group, is quoted in Indian Country Today saying the plaintiffs — a consortium of tribes — should expect challenges to the ruling.

NEPA was signed by President Richard Nixon in 1970. It established a Council on Environmental Quality, which enforces NEPA in federal agencies and advises the president. The reviews it requires are onerous, often taking years, and large companies cite NEPA as a thorn in their side when working on federal land.

The Army Corps of Engineers granted the easements for some of the land through which DAPL was constructed. In response, the stunning protests against the project were staged by activists who call themselves water protectors and have been a wellspring of jarring images of private and public security forces spraying demonstrators with water cannon in freezing temperatures. Developer Energy Transfer Partners deployed mercenaries with attack dogs and pepper spray to break those protests up, injuring at least one child.

The section of pipeline that triggered the ruling goes under a lake and other water sources for Native communities. In 2017, the Corps temporarily ceased construction pending an environmental review, but resumed when Donald Trump, who partially ran on shutting down regulations, assumed the presidency and used the powers of the office to push such projects.

The opinion says:

“Following multiple twists and turns in this long-running litigation, this Court recently found that Defendant U.S. Army Corps of Engineers had violated the National Environmental Policy Act when it granted an easement to Defendant-Intervenor Dakota Access, LLC to construct and operate a segment of that crude-oil pipeline running beneath the lake.”

One of Trump’s most dogged battlefield performances is his picking apart of laws and defunding of agencies that have been credited with dramatic improvements to environmental quality over the last 50 years, including the Endangered Species Act and Environmental Protection Agency.

One month ago, Trump took advantage of the SARS-CoV-2 pandemic to strengthen his assault on such rules and bodies, issuing an executive order relaxing review requirements and instructing the leaders of government agencies to intensify a search for NEPA loopholes so they could fast-track projects. The order allows federal agencies to use internal justifications for getting around NEPA requirements.

The administration uses the euphemism “streamlining” to refer to gutting environmental laws.

Grist writes:

Even before Trump declared the novel coronavirus outbreak a national emergency, the White House Council on Environmental Quality held two public hearings in Denver, Colorado, and Washington, D.C., to gather feedback on Trump’s initial proposal to overhaul NEPA in ways that would speed up projects and de-emphasize environmental reviews. Students, construction workers, university professors, and grassroots activists testified before a panel of expressionless White House officials, testifying that NEPA’s requirements are vital for their safety, health, and the environment.

Anthony Victoria Midence and other environmental advocates in California’s Inland Empire, a region that experiences some of the country’s worst smog, have united environmental and labor groups to fight a controversial airport expansion that the government’s own assessment shows would add one ton of pollution to the region’s air each day. The groups invoked NEPA to mount a legal challenge to the Federal Aviation Administration’s approval of the project’s permits. Trump’s new executive order would have stymied their efforts, according to Victoria Midence, who is the community director for the Center for Community Action and Environmental Justice, a local social justice group.

And Trump has proposed sweeping changes to environmental rules, even before the pandemic. Grist writes:

The new executive order comes on the heels of the Environmental Protection Agency (EPA) finalizing a rule last week that will make it much more difficult for states, tribes, and the public to protest or block pipelines and other projects that could pollute the air and water systems. The decision, which overturns a 50-year-old understanding of the Clean Water Act, would set a strict one-year deadline for states and tribes to approve or deny proposed projects such as pipelines, dams, or fossil fuel plants.

Pipelines inherently leak. In the first six months of its operation in 2018, DAPL sprang five leaks, according to the Intercept. The 87 percent-white residents of Bismark, North Dakota, knew this. DAPL was originally planned to pass just north of this town, but after a robust outcry from the citizens, the Corps rerouted the pipeline’s path.

But marginalized communities can’t expect to have their water respected by corporations simply by showing up at community discussions, like white people can. Environmental regulations are not a panacea, but they are one of vanishingly few ways in which the voiceless win.



Aaron Hedge
Climate Conscious

I like to write about human-wildlife relationships, mostly.