Easement at Reservoir at Heart of Dakota Access Fight
September 6, 2016
Greenwire - Energy & Environmental Policy News
Managing Partner Scott Shapiro is quoted in Greenwire article, “Easement at Reservoir at Heart of Dakota Access Fight,” regarding the longstanding provision of the Rivers and Harbors Act of 1899 and how the Army Corps may interpret it with respect to the controversial easement issue surrounding the proposed $3.8 billion Dakota Access crude oil pipeline.
See full article below or view it online at E&E News.
By Hannah Northey for E&E News
The focus of an intense fight over the proposed $3.8 billion Dakota Access crude oil pipeline appears to be an easement that project developers need to cross a federal reservoir and dam in South Dakota.
Climate activists who led the battle against the Keystone XL pipeline are urging the White House to intervene and prevent the Army Corps of Engineers from granting the easement that would allow Energy Transfer Partners LP to modify Lake Oahe and the Oahe Dam, the nation’s fourth largest artificial reservoir, which straddles the Missouri River north of Pierre, S.D.
“President Obama has the power to stop this pipeline in its tracks; this pipeline cannot be built without federal approval,” said Jason Kowalski, a policy director at 350.org. “It’s honestly pretty irresponsible of the company to go forward with building this without all of its federal approvals, which it currently doesn’t have right now.”
At the heart of that argument is the easement that would allow the 1,134-mile Dakota Access pipeline to be built near federal land. Developers submitted a request to the Army Corps in January to construct portions of the pipeline that would be built under the federal levees — part of the project that would carry as much as 570,000 barrels a day of Bakken crude through North and South Dakota, Iowa, and Illinois.
In an interview with The Bismarck Tribune, a corps spokesman confirmed the easement is still under review, one of five federal clearances Energy Transfer Partners needs to start construction. Vicki Granado, a spokeswoman for Dallas-based Energy Transfer Partners, said in an email that the easement is “in process” and the corps has “issued permission” that would allow the easement to be written.
Pipeline opponents learned Energy Transfer lacked an easement during a federal court hearing in Washington, D.C., last month, where the Standing Rock Sioux requested an injunction to stop pipeline construction as its case against the corps is heard. The judge has said he will rule on the request for an injunction this week.
While that decision is pending, the tribe’s lawyers are also pushing for a separate, narrower halt to construction near Lake Oahe and important cultural artifacts the tribe says it recently uncovered. A hearing on the construction freeze is scheduled for this afternoon.
Under the longstanding provision of the Rivers and Harbors Act of 1899, the corps would deny the easement if the Dakota Access project impairs the existing federal dam and levee system or is proven to be “injurious” to the public interest, said Scott Shapiro, a managing partner at the law firm Downey Brand LLP. While developers likely have steps in place to protect the federal dam system, the question of public good may be more complicated, he said.
“There’s not a lot of law on what that means,” Shapiro said of how the executive branch should interpret the 408 provision. The corps, he said, is probably obligated to consider climate change, energy policy and whether the project would affect public access to tribal lands.
But Shapiro said in his experience, such decisions rarely get political given the agency’s thorough reviews. “In my experience dealing with the Army Corps and 408 approvals, I have rarely seen politics influence the decision,” Shapiro said. The question is whether someone at the corps questions whether or not the statute is interpreted correctly, noting that it is the secretary of the Army — a post currently held by Eric Fanning — who ultimately makes the decision.
The pipeline project has drawn support — and calls for more infrastructure — from North Dakota Sens. Heidi Heitkamp (D) and John Hoeven (R) and opposition from Sen. Bernie Sanders (I-Vt.), who has compared the project to Keystone XL.
Activists hoping to replicate the anti-KXL campaign for resisting fossil fuel infrastructure are now calling on Democratic presidential nominee Hillary Clinton and her running mate, Virginia Sen. Tim Kaine, to weigh in. Kowalski added that the Democratic energy platform calls for a closer look at energy infrastructure that would exacerbate climate change.
“I think in an election year when you have this much resistance from tribal nations, formal resistance from 80 tribal nations that have a government relationship with the United States of America, it should be taken really seriously,” Kowalski said. “No one wants a standoff between thousands of indigenous leaders including formal elected leaders of 80 tribes and the federal government.”
Pipeline promoters won’t retreat
But proponents of the project are themselves going on offense, rejecting any notion the Dakota Access is a sequel to KXL or that the project should be mired in political debate.
“This is not like Keystone,” said Ed Wiederstein, an Iowan farmer who leads the Midwest Alliance for Infrastructure Now, a collection of labor unions and business and agricultural groups formed to advocate for the pipeline.
“Other than it’s a pipeline, that’s the only comparison you can make,” he said.
Wiederstein said it would be a mistake for Clinton and the Obama White House to jump into a fight over a project that’s already being built and has most of the necessary federal and state permits, not to mention consent from private landowners along the project’s route.
“The White House has no connection to it now, unless they want to insert themselves politically,” Wiederstein said.
“It would be really kind of a slap in the face at business to start doing something like that now,” he added. “All of the approvals have been made and all of a sudden they’re going to back up and say ‘you can’t do that,’ I don’t know what basis they’re going to stand on.”
Wiederstein also rejected a connection between the pipeline and a larger push to reduce greenhouse gas emissions, saying the project itself will not have an effect on climate change.
“A pipeline doesn’t emit anything. Maybe what’s going through it. … We may at some point be less reliant on oil, but it’s going to be a long time before that happens and we have a lot of technology that has to occur before it can take the place of oil and all the infrastructure,” he said. “We are not ready for all solar, all wind, we just don’t have the infrastructure for it now, it’s not there.”
Kowalski said much of the climate movement is looking to tribes for leadership on how to proceed, adding that 350.org offers supplies and support staff but is not on the ground in North Dakota.
“We learned from the Keystone fight that when we follow the lead of communities [fighting] fossil fuel infrastructure in their backyard, we win,” he said. “That lesson is not lost on the climate movement, and the gears of solidarity move forward much more quickly in the post-Keystone world.”
Reporter Ellen M. Gilmer contributed.