Two days after President Donald Trump signed memoranda designed to expedite the Dakota Access Pipeline (DAPL) and revive the Keystone XL pipeline, the battle lines are being drawn as the public comment period ending on February 20 becomes ever more crucial.
Those opposed have been taking stock of what the moves mean, and how they plan to fight them.
With Secretary of Energy pick Rick Perry, an Energy Transfer Partners (ETP) board member, and Trump’s own investments in some of the companies behind the project, the conflicts of interest are clear.
The Standing Rock Sioux Tribe on January 26 issued a call for Trump to abide by the Environmental Impact Statement study for DAPL that was initiated on January 18 and conduct a thorough assessment.
“This change in course is arbitrary and without justification; the law requires that changes in agency positions be backed by new circumstances or new evidence, not simply by the President’s whim,” wrote tribal Chairman David Archambault II in a letter to Trump. “It makes it even more difficult when one considers the close personal ties you and your associates have had with Energy Transfer Partners and Sunoco.
Trump on January 24 signed Presidential Memoranda directing the U.S. Department of the Army, which on December 4 had denied one last easement for ETP to drill under Lake Oahe, to “consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016,” as well as consider withdrawing its Notice of Intent to Prepare an Environmental Impact Statement that was posted in the Federal Register on January 18.
In addition, the memorandum targets DAPL in directing the Army to “review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas,” according to the memo posted on the White House website.
The “extent permitted by law” caveat is an acknowledgement that any move on DAPL must comply with federal law. While the Department of the Army would be within its legal limits to rescind the study, its initiation was based on evidence that will not go away. The Presidential Memorandum, while potent, has limits and does not change or undercut the laws that govern the Environmental Impact Statement, political experts said. Even an Executive Order would not have been able to do that.
“Note that it is not an Executive Order, it is a slightly lesser being called a Presidential Memo,” wrote Carolyn Raffensperger, an environmental lawyer who is executive director of the Environmental Science & Health Network, a nonprofit organization that works to link health and the environment, and promote sound science.
“It does not tell the Army to stop the EIS. It tells them to consider withdrawing it. We can and should still flood the Army with the demands to do an EIS on the whole pipeline,” she wrote. “Even with this Memo, DAPL doesn’t get to start drilling tomorrow.”
The Secretary of the Army has been directed to review and prove DAPL’s construction and operation, consider withdrawing the intent to conduct an EIS, and to determine whether prior reviews comply with the National Environmental Policy Act (NEPA), which would obviate the need for an Environmental Impact Statement. If the Standing Rock Sioux Tribe lodges a legal challenge, that could slow things down further, she said.
“It does NOT grant immediate approval,” Raffe wrote in a statement on Facebook. “The question is how fast the Army will act and whether the Tribe acts to block this with a temporary restraining order.”
Standing Rock Sioux Chairman David Archambault II called the moves regarding DAPL a violation of treaty law and said the tribe would take legal action.
“Your memorandum issues these directives with the condition that these actions are carried out ‘to the extent permitted by law.’ I would like to point out that the law now requires an Environmental Impact Statement,” Archambault wrote in his letter to Trump. “The USACE now lacks statutory authority to issue the easement because it has committed to the EIS process. Federal law, including the requirement of reasonable agency decision making, prevents that.”
Earth Justice, the environmental law organization representing the tribe, reiterated its support and highlighted the potential conflicts of interest for Trump given his investment in at least one of DAPL’s parent companies.
“This move is legally questionable, at best, and based on what we know about Trump’s financial dealings in the Dakota Access pipeline, it raises serious ethical concerns,” Earth Justice said in a statement. “In the case of the Dakota Access pipeline, Trump’s actions are an affront to the Tribe and its Treaty rights especially since once again the tribes were not consulted before this action was taken. He should brace himself to contend with the laws he is flouting, and the millions of Americans who are opposed to these dangerous and destructive projects. We will see his administration in court.”
The Indigenous Environmental Network (IEN) had even stronger words.
“These actions by President Trump are insane and extreme, and nothing short of attacks on our ancestral homelands as Indigenous Peoples,” said IEN Executive Director Tom Goldtooth in a statement. “The Executive Orders demonstrate that this Administration is more than willing to violate federal law that is meant to protect indigenous rights, human rights, the environment and the overall safety of communities for the benefit of the fossil fuel industry.
Goldtooth concluded with an outright warning.
“These attacks will not be ignored. Our resistance is stronger now than ever before, and we are prepared to push back at any reckless decision made by this Administration,” he said in the statement. “If Trump does not pull back from implementing these orders, it will only result in more massive mobilization and civil disobedience on a scale never seen of a newly seated President of the United States.”