DAPL: Can Trump Push Forward the Dakota Access Pipeline?

The protests over the Dakota Access Pipeline (DAPL) have been going on for around a year now, with the Standing Rock Sioux Tribe and their allies demonstrating to stop the completion of the oil pipeline.  The Sioux argue that, not only does the project violate their treaty rights by failing to consult them on projects crossing through their land, the oil pipeline would also poison their only water supply by crossing under Lake Oahe and destroy land sacred to the tribe.

Their concerns have merit, during the Sioux Tribes lawsuit on the matter they brought concerns over specific sacred locations before the court–only to find the following Monday that all the areas they mentioned to the court had been bulldozed over the weekend.

The protesters had won a huge victory last year, the Department of Justice under the Obama administration, along with the Department of the Interior and the U.S. Army, issued a joint statement pausing construction on the DAPL while the U.S. Army Corp of Engineers reviewed its decisions as to whether the pipeline’s construction was consistent with federal law.  In what looked like an ultimate victory for the Sioux, the Corp of Engineers ended up denying an easement which would have allowed the DAPL to cross Sioux land towards the end of last year. An easement is a legal term for the right to make use of land that isn’t yours for some specific, limited, purpose.

Many thought this was an end to the DAPL pipeline.  Last week, however, President Trump issued an executive order which has the potential to change all that.  The order, published on January 24th 2017, has been heralded as a potential deathblow to the protest efforts of the DAPL demonstrators.  So what exactly does the order do?

What is in the Order Itself?

Despite the frustration and worry that this order has caused to the Sioux tribe and their supporters, Trump’s order is not one outright ordering that the DAPL be finished and use Sioux land.  This is likely because Trump simply does not have the power to make such a proclamation via executive order, likely the same reason that President Obama didn’t simply end the pipeline via executive order.  The process of approving or denying the DAPL is a more complex administrative process.  The order takes a similar approach to attempting to expedite the completion of the Keystone XL pipeline–previously denied permit due to environmental concerns in 2015 by previous Secretary of State John Kerry.  However, what Trump’s order can–and does–do is make this administrative process quicker and smoother for the business interests behind these pipelines.

In his order, Trump leverages his authority to order the Secretary of the Army to instruct the U.S Army Corp of Engineers and the Assistant Secretary of the Army for Civil Works to review and approve, as quickly as possible consistent with current law, renewed requests for a DAPL easement.  It also orders them to, again consistent with existing law, consider whether to rescind or modify the steps that the Army Engineers had taken to stop the DAPL–last year’s memorandum rejecting the easement and a proposed review of the environmental impact of the DAPL issued last month.  Finally, it orders an expedited grant of all other permits and easements necessary along with a waiver of notice periods to further expedite the process–once again so long as these actions are consistent with existing law.

So you’ve probably noticed a trend in the order–consistent with existing law.  There’s even an entire section of the order saying that the order shouldn’t be construed to attempt to alter any Federal, state, or local property law.  This means that if the environmental impact, use of land, or other legal issue are still inconsistent with the requirements of law they will still not be made.

So does that mean that the Sioux and other DAPL protesters are worrying over nothing?  Absolutely not.   The DAPL has been given another bit at the apple and Trump’s order certainly shows how he thinks the process should proceed–stacking the deck in favor of the DAPL.  However, the Sioux have a number of legal rights which they will certainly argue in their renewed efforts to stop the DAPL from crossing their land.

What are the Rights of the Sioux?

The first and most obvious right of the Sioux is the right to a thorough and well considered review process of the environmental impact of the DAPL.  The process itself would likely take months and given the Standing Rock Sioux have already filed suit for an injunction on the review altogether there is very little chance that the process will be completed particularly quickly.  If the review goes through and the Army Corp of Engineers reverses their stance on the environmental impact of the DAPL, there is no question that the Sioux can and will bring a lawsuit questioning the thoroughness of the review–especially if the review is particularly hasty as Trump’s order requests..

The Standing Rock Sioux also have legal rights to the land itself.  In 1980, the Supreme Court ruled that the U.S. had unjustly taken the Black Hills from the Sioux tribe.  The U.S. government was ordered to compensate the tribes for the land taken from them.  However, the Sioux declined the payment and instead sought a level of ownership in the land taken from them.  Unfortunately, this does not mean that the Sioux actually own the land that was taken out from under them as U.S. law generally follows the “doctrine of discovery.”  This basically means that whoever initially documented land can lay claim to it.

This approach has led to two things, shaky ownership of ancestral lands for Native American tribes and a series of rights granted to those same tribes to try and recognize the land that has been taken from them.  One of the most important of these rights, granted in 1992, is the known as the right to be consulted.

The right to be consulted requires a federal agency to consult with local Native American tribes before undertaking or approving any construction project in order to ensure that there are no sacred sites near the construction site.  This applies even if the project is off reservation land in order to recognize the fact the many tribes have been forced to move far away from lands that were once theirs and sacred to them.

The exact nature of the consulting process has been a point of contention with the DAPL and the Sioux.  Those behind the DAPL argue that they did consult the Sioux sufficiently.  However, the Sioux argue that they should have been consulted more frequently as the project evolved instead of essentially brought in last second to rubber stamp what was a nearly completed project.

The Reality: Climate Not a Priority For Trump

Beyond a willingness to trample the rights of the Standing Rock Sioux, Trump’s order also shows a  disregard for the environment as a whole.  However, this is no surprise.  Trump has already vowed to cancel Obama’s Climate Action Plan and has threatened to pull out of or defund the Paris Climate Agreement, an international treaty with the goal of reducing human impact on global warming.  His appointment for head of the Environmental Protection Agency is on record as a climate change denier–even having previously stated that he didn’t feel the EPA was necessary at all.  The DAPL order is likely the tip of the iceberg of what we should expect–both when it comes to climate and when it comes to disregarding the rights of minorities.