Reversal Of Standing Rock Victory Might Undermine Environmental Law

The Army Corps’ decision to consider alternate routes for the Dakota Access pipeline was historic and hard-won, but legal experts fear that it could soon be reversed.

Fireworks lit up the North Dakota sky on Sunday night, as “water protector” activists at camp Oceti Sakowin celebrated a Army Corps of Engineers’ decision to explore new routes for the Dakota Access pipeline.

The announcement that could divert the 1,172-mile-long pipeline away from Lake Oahe arrived after months of opposition to a project that the tribes said threatened a critical water source.

“This is an historic moment,” David Archambault II, chairman of the Standing Rock Sioux Tribe wrote in Indian Country Today on Monday.

But some worry that this victory, though momentous, may be as fleeting as the light show over the campground. And that reversal might damage the environmental law that protects lakes and rivers nationwide.

“It is not the end of the story,” Sarah Krakoff, a law professor at the University of Colorado, Boulder, who specializes in Indian law and natural resources, told BuzzFeed News.

In the aftermath of the announcement, President-elect Donald Trump’s comments, and ones by lawmakers who remain committed to the pipeline, could gather momentum point to a reversal of the hard-fought win for activists, they say.

“We know one thing for sure: When the administration changes, the easement is going to be approved,” North Dakota Senator Heidi Heitkamp, who hasn’t stated a position on the pipeline, told Squawk Box host Joe Kernen on CNBC.

“I understand the frustrations of the protesters, I just think that this fight is not winnable,” Heitkamp said. “I think the pipeline is going to be built.”

Trump had investments in Energy Transfer Partners, the company that is building the pipeline, but has reportedly sold his shares over the summer. On a call with reporters Monday morning, the Trump transition team also said that the administration is in favor of the pipeline and will revisit the situation in the White House.

.@JasonMillerinDC says Trump supports building the Dakota Access Pipeline, but says team will review full situation…

“It’s the kind of decision that the next administration could come in and easily reverse,” Sharon Buccino, director of land and wildlife at the Natural Resources Defense Council told BuzzFeed News. “But they’re going to have to justify the decision to change course.”

For the short term, legal experts say, the decision is protected against appeal by the company.

By calling for review in the form of an “environmental impact assessment” rather than rejecting the permit outright, the Corps has essentially placed the standoff in cold storage, Krakoff said. That additional review could take the better part of a year.

So “the quickest route to reverse this would be legislative,” Krakoff said, noting that after January, both houses of Congress will have a Republican majority that could flip the decision by law.

“I wouldn’t find it shocking if this did get on some kind of legislative fast track — even though one would hope there are other priorities,” Krakoff said

There is something of a precedent.

In 1978, the US Supreme Court ruled to halt construction of the Tellico Dam on the Little Tennessee River. The court ruled the structure threatened a river fish called the snail-darter, which was protected under the Endangered Species Act.

A year later, Congress overturned that decision by writing an exemption for the project into law. President Carter signed the bill, construction resumed, and the dam was completed.

A longer-term strategy for pipeline supporters could take aim at the environmental protections in the National Environmental Policy Act of 1970, which requires federal agencies to take environmental impacts into consideration when considering new projects or permits.

“Whether or not it holds up over the long term, at the very least it’s turning the balance of the decision towards looking more closely at tribal interests,” Monte Mills, a professor of law at the University of Montana and co-director of the Margery Hunter Brown Indian Law Clinic.

Mills said the Corps’ recent decision reflected a better acknowledgement of tribes’ concerns over waterways. The last time that the federal government approved a major project in the region, in 1944, the Army Corps dammed the Missouri and drowned timberland and tribal towns belonging to the Standing Rock Sioux and tribes in three states.

But this summer, the Corps denied a permit and nixed plans for the nation’s biggest coal terminal to be built off the coast of Washington state. The Lummi Nation of American Indians had argued against the terminal, saying that spills could kill fish, and obstruct the tribe’s treaty-protected rights. Army Corps officials said that they cancelled the terminal because construction would go against those treaty promises to the tribe.

How the North Dakota pipeline promises play out will “determine and show if the agency is committed to honoring the protections” Mills said.

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