The Dakota Access Pipeline is not dead, despite what you may have heard. Fortunately, there will soon be a new way you can fight it.
On Dec. 4, Native Americans and environmental activists achieved a major victory in the months-long battle against the oil pipeline, known as DAPL, yet it wasn’t as decisive as many media outlets reported. The U.S. Army Corps of Engineers declined to grant a permit for the pipeline to be built under Lake Oahe, near the Standing Rock reservation in North Dakota. But the wording of the official announcement rendered its real message unintelligible to all but those familiar with federal government permitting processes. This led to widespread reports, found everywhere from CNN to Fox News to NPR, touting misleading and/or false information that the permit had been “denied” or that the company building it would be required to use an alternate route.
A closer look at the statement from the Army Corps of Engineers reveals that it did not, in fact, deny the permit, nor did it require the pipeline’s relocation. What the statement does say is that the Corps “will not approve an easement … to cross under Lake Oahe,” and that it will now “explore alternate routes … through an Environmental Impact Statement.” Translated into layman’s terms, the Army Corps will not approve the pipeline at this time, and is now requiring additional environmental review of the proposal, which will include evaluating alternative routes, via an environmental impact statement, or EIS.
This means that direct action convinced decision-makers within the Army Corps that its initial call that the DAPL would have “no significant environmental impact” was mistaken.
Activists now have a chance to put the nails in the coffin of the DAPL through official government channels. It’s a long shot — especially with the Trump administration taking the reins — but targeted action through the EIS process is one possible way to kill the pipeline. And such an effort could have a lasting impact on how other fossil fuel projects are reviewed in the future.
What is an EIS and how can it stop the pipeline?
The National Environmental Policy Act (NEPA), passed in 1970, requires federal agencies to assess the potential environmental impacts of their projects and of proposed actions that require a government permit, such as construction of the DAPL.
The NEPA process begins with an environmental assessment, which is a preliminary analysis of potential environmental impacts and discussion of possible alternatives to the proposal. If a federal agency determines from this document that a project is not likely to have significant environmental impacts, it issues a (humorously named) FONSI, or Finding of No Significant Impact. This is what originally happened with the DAPL; you can read its environmental assessment here.
On the other hand, if the agency determines that the project will have significant environmental impacts, like the Army Corps did when it reversed its FONSI on Dec. 4, an environmental impact statement must be completed. An EIS requires a full analysis of a project’s environmental impacts, as well as public input and engagement during each step of the process. An EIS also requires analysis of alternatives to the project as proposed. So the report will typically assess the “preferred alternative,” a “no action” alternative, and at least one other alternative that would achieve the project’s overall goal. A draft EIS is circulated for public comment, after which a final EIS is recorded in the federal register. Once the EIS is complete, the NEPA process ends.
It’s important to understand what the NEPA process can and can’t do. The in-depth analysis required by an EIS is so expensive and time-consuming that the threat of it is often enough to convince a project’s backers to change the project in order to reduce impacts to a level that will earn them a FONSI and not require an EIS. But if the project backers have the time and money to spend to complete an EIS, there is nothing within the NEPA law itself that would force them to mitigate their impacts or change their original plans, regardless of how severe those impacts might be. In other words, there isn’t a way to “fail” the NEPA process.
However, in the particular case of the Dakota Access Pipeline, the information gathered during the EIS process could trigger another regulation that would cause the Army Corps to deny the permit to build the pipeline under Lake Oahe. Section 408 of the U.S. Code stipulates that the Army Corps can approve all requests for easements over the property it manages as long as they 1) do not interfere with the Army Corps’ use of the land, and 2) are not “injurious to the public interest.” The Army Corps’ internal guidance lists damage to the environment and cultural resources among a number of things that could qualify as “injurious to the public interest.” Negative impacts alone aren’t enough for permit denial; the negatives must outweigh the positive impacts of the project, such as short-term profits and pipeline jobs.
Therefore, if the information and public comment gathered during the EIS process can clearly show that the project’s environmental and cultural impacts outweigh any positive effects, this might give the Army Corps cause to deny the permit and prevent completion of the DAPL.
What can you do?
If the DAPL’s (reportedly tenuous) funding holds, and the Trump administration doesn’t try to do something unprecedented (more on that in a bit), the EIS process will likely proceed as follows:
After publishing a Notice of Intent to conduct an EIS, the Army Corps will begin the “scoping” phase, in which it determines which potential impacts it should study. This is the first opportunity for public comment, and a critical one. Commenters should tell the Corps not only to study the impacts on water quality, wildlife, and tribal lands, but also to analyze the greenhouse gas emissions and climate change impacts of the eventual burning of the oil carried in the pipeline in the U.S. and abroad.
No EIS has ever included this full scope of climate change impacts. (Washington state once came close in its own environmental process, but the project was denied for other reasons before we got to see how it would have played out.) Getting the Army Corps to include climate change impacts in the EIS would be a major coup, and make it all the more difficult for the Corps to find that the pipeline is not “injurious to the public interest.” It would also set an excellent precedent for assessing future fossil fuel projects.
Once scoping is complete, the Army Corps will draw up a draft EIS, which will be published and opened up for public comment, typically for 45 days. To have the greatest impact at this point, commenters should use fact-based arguments that directly respond to statements in the EIS, not emotional arguments. If you don’t have the time or inclination to make detailed comments, it’s still helpful to submit a comment along these lines: “This project’s negative impact on the environment will greatly outweigh any benefit. I support the ‘no action’ alternative and denial of the easement.”
After public comment on the draft closes, it will be updated based on comments received, a final EIS will be published, and there may be one more comment period. Once the EIS is recorded in the federal register, the Army Corps will have to make the decision on whether or not the project is “injurious to the public interest.”
The Trump effect
While it’s theoretically possible that the incoming Trump administration or Congress could attempt to cancel the EIS or restrict public input in the process, as some have suggested, that could be an unprecedented move. Given Trump’s track record, unprecedented doesn’t mean unlikely, but even if he or Congress were to try something like this, a decision to cancel or curtail the EIS process would be challenged in court and might not hold up.
A more plausible scenario is that Trump waits to act until the very end of the process, by trying to influence that “injurious” decision. Jo-Ellen Darcy, the Obama appointee who currently directs the Army Corps and made the decision to call for an EIS, plans to retire this month, so the person overseeing the final “injurious” decision will be a Trump appointee. Although the president-elect has not yet nominated anyone for the position (assistant secretary of the Army for civil works), it’s likely that the person he appoints would be eager to approve a project that Trump supports and is financially invested in.
Especially after considering the Trump factor, it may seem that taking action through the regulatory process is a waste of time, that the Army Corps will make whatever decision it wants regardless of the evidence and public comments received on the EIS. To be sure, there is no guarantee that such action will be effective — but there was also no guarantee that the water protectors at Standing Rock would achieve any kind of success. If we want to stop this and other pipelines from being built, we should use all the tools at our disposal. Every project has a different Achilles’ heel, so it’s important to push on every possible weak point.
Regardless of the Army Corps’ final decision, if public comment persuades the agency to evaluate the DAPL’s full climate change impacts, the precedent will be yet another tool we can use to fight fossil fuel projects. Additionally, when other fossil fuel companies see that they will likely be pushed into this long and arduous environmental process, it will force them to include the potential time and cost of an EIS when evaluating the feasibility of their projects. This extra cost could be enough to dissuade them from building.
So don’t write off the impact you can have on the government’s decisions. Direct action has caught their attention. Now let’s do everything we can to keep the pressure on.
Jake Tracy is an urban planner and environmentalist from Seattle, Washington.
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