What the Hell is an Easement? And Other Questions You Had About the #NoDAPL Decision

Aiden Kent

An aerial view of the Oceti Sakowin camp following news Energy Transfer Partners has been denied the easement required to complete the Dakota Access Pipeline.

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The U.S. Army Corps of Engineers (USACE) announced Sunday it will not grant an easement to allow continued construction of the proposed Dakota Access Pipeline along its current route.

Late Sunday afternoon, Standing Rock Sioux Tribal Chairman Dave Archambault II released this statement:

Today, the U.S. Army Corps of Engineers announced that it will not be granting the easement to cross Lake Oahe for the proposed Dakota Access Pipeline. Instead, the Corps will be undertaking an environmental impact statement to look at possible alternative routes. We wholeheartedly support the decision of the administration and commend with the utmost gratitude the courage it took on the part of President Obama, the Army Corps, the Department of Justice and the Department of the Interior to take steps to correct the course of history and do the right thing.” 

Celebrations erupted in the Standing Rock encampments and on social media after the announcement was made. The decision came down at the same time that more than 2,000 veterans were arriving in North Dakota to join the resistance, growing the number of protestors and garnering this response from local law enforcement.

USACE spokeswoman Moria Kelley released an official statement confirming their denial of the easement for the 1,172-mile pipeline owned by Texas-based Energy Transfer Partners (ETP). Though the pipeline is nearly complete, USACE Assistant Secretary for Civil Works Jo-Ellen Darcy says the Corps will explore alternate routes” for the pipeline’s crossing instead of burrowing under Lake Oahe, the Missouri River reservoir where construction has been on hold since November 14.

But the fight to protect the land and water isn’t over. In a statement released late Sunday night, Energy Transfer Partners and Sunoco Logistics responded to the failed easement, caiming the Obama administration had abandoned the rule of law in favor of currying favor with a narrow and extreme political constituency.” ETP has stated they’re unwilling to reroute the project.

DAPL has been halted before and it didn’t work

Several attempts have been made to halt the pipeline before the easement was denied. In September, the Standing Rock Sioux, members of the Great Sioux Nation, filed an emergency petition to reject the USACE’s permit for the pipeline, in which the Tribe claimed they had not been consulted and a survey of the construction site identified significant cultural and historical value.” They took the case to federal court on September 4 and, on September 6, U.S. district judge James Boasberg agreed to temporarily halt construction on a portion of the pipeline. He then issued a ruling allowing work to continue.

On September 9, the Department of Justice, the Department of the Army, and the Department of the Interior issued a statement that temporarily halted all construction bordering Lake Oahe. Protests continued despite the temporary suspension because construction crews did not vacate. Energy Transfer Partners (ETP) filed a federal lawsuit on November 14 seeking approval to finish construction and seeking reimbursement for reasonable costs including attorney’s fees in bringing this action.” The filing occurred the same day the Army Corps of Engineers announced it would not grant an easement to drill under the Missouri river until further analysis could be done.

In other words, we’ve been here before.

No easement was granted as a result of the lawsuit, and according to USACE, any drilling would violate federal law. Water protectors at the camps claimed DAPL officials ignored these requests by federal agencies. According to a Facebook live video produced on November 16 by Indigenous Life Movement advocate Myron Dewey, it appeared DAPL turned off floodlights to mask the arrival of a drill at Lake Oahe. The move was not confirmed by DAPL officials.

An eviction order for the Oceti Sakowin Camp, issued by the USACE, remains on the books and could still be leveraged to pressure people to leave the area. It is also possible that as the number of protestors declines due to this perceived victory, it will be easier for law enforcement to evict the remaining water protectors. Reports from the camp claim law enforcement has yet to demilitarize, suggesting there may still be a fight ahead.

What an easement is and what it means for water protectors and DAPL

The land that DAPL partners purchased is not theirs, much like how in real-estate transactions, the land homeowners buy is not theirs. Neighbors share parts of the land and local utility companies have a right to infrastructure under the swing set. An easement is a right-of-way that grants other designated groups access to a section of land without the legal consent of the landowner. Easements can be granted to anyone, and can only be removed if both parties agree. The USACE has blocked an easement for DAPL proponents twice, and is likely to continue to do so on the grounds of protecting treaty and property rights for Native communities. The Standing Rock Sioux have also alleged violations of the National Historic Preservation Act.

If there is an easement granted, we will sue,” Archambault said last Thursday during a Facebook Live stream. The easement denial could be overturned but, until then, Energy Transfer Partners and investors are likely to sue or go to court (as they have in the past). That said, preventing the DAPL easement, even temporarily, sends a signal to investors and builders that they do not have an inherent right to the land. If no proper utility purpose can be defined, or if the pipeline is deemed financially and/​or environmentally unstable, this could be used in court to permanently halt the project.

Economic pressure increases for DAPL officials to deliver by the New Year

Energy Transfer Partners faces a looming New Year’s completion deadline and has conceded in court that, if they do not meet it, the companies with long-term commitments to ship oil through the pipeline have the right to pull out. According to a report by the Institute for Energy Economics and Financial Analysis, ETP recently informed investors that it would take three to four months to complete the pipeline after an easement is granted, thus making it increasingly unlikely the Jan 1. deadline would be met. The report also notes the pipeline may represent excessive building of the Bakken region’s oil-transport infrastructure. 

On a global scale, the context for the project has changed drastically since it was introduced in 2014. Global oil prices collapsed right after oil shippers had committed to using the pipeline and many in the energy sector do not expect prices to bounce back to their 2014 levels for at least a decade. If oil prices do stay low, less Bakken oil production would render costly new infrastructure unnecessary. In other words, the nearly-completed, $3.8 billion Dakota Access Pipeline could become a failed asset — a stranded project that was rushed to completion to protect contract terms negotiated in 2014.

Environmental impact statements take time

Since the beginning, DAPL has been fast-tracked under the Nationwide Permit 12 process for utility lines which includes, according to the flexible language in the document, pipelines carrying any material for any purpose”. The document issued by the USACE allows for utility lines to be treated as a series of tiny construction sites. This effectively grants exemption from environmental review required by the Clean Water Act and the National Environmental Policy Act (NEPA).

Sunday’s easement denial was made on two bases: First, the Army Corps of Engineers will consider alternative routes for the pipeline. Second, the project would now undergo an Environmental Impact Statement (EIS) issued under NEPA. According to a study by Cambridge University, such statements take a long time to prepare — federal agencies required an average of 3.4 years to complete their reports. This is significantly longer than protestors could camp out or a company facing financial stress could hold out.

It’s not possible to conclude the exact damages the pipeline could have on the regional and even national environment until the statement is completed, but the risks are high. Pipeline leaks happen frequently. Since 1986, hundreds of pipeline accidents have killed more than 500 people, injured over 4,000 and cost nearly seven billion dollars in property damages. Enbridge Pipelines, a partner on DAPL, has had 123 official reports of damages or incidents in the last 30 years alone. Pipelines are hard to build safely, and there’s no guarantee a pipeline built in a year is any safer. 

In their denial of the easement, the USACE did not deny a permit to cross the Missouri River in other locations, so any potential re-route may still threaten water supplies. A leak into the Missouri River, to which Lake Oahe is connected, would be devastating to communities in the region. As Argus’ John Hult pointed out in the Detroit Free Press, if the tribes and litigators successfully prove the pipeline is in violation of any number of environmental acts (as well as the National Historic Preservation Act and the Rivers and Harbors Act) Standing Rock could further delay the pipeline in court.

The Trump administration could over turn the decision, but not easily

It is unlikely the pipeline will be completed by its Jan. 1, 2017 deadline. It’s equally unlikely that it will be permanently halted due to financial concerns, environmental dangers, or continuing protests against Native American treaty violations before President-elect Donald Trump’s inauguration on Jan. 20, 2017. President-elect Trump, who owns stock in Energy Transfer Partners and Phillips 66 (who owns one-quarter of the DAPL) has, unsuprisingly, expressed support for the project but maintains it’s policy-based and not financial. But he has not stated whether or not he will get rid of these investments upon inauguration.

By law, the decision to permanently stop the pipeline ultimately falls on the Army Corps and not the executive branch. President Obama cannot not do much to stop the pipeline without significant overreach. But there’s also not much Trump can do to overturn the easement denial besides seeking to undo it under judicial review — a process that could take up to three months. A GOP-controlled Congress could potentially fast track the project, but it’s too early to say how that might turn out.

Despite widespread celebration of the USACE’s decision, some politicians are criticizing the choice to halt DAPL’s construction. According to the AP, North Dakota Gov. Jack Dalrymple ® called the decision a serious mistake” that prolongs the dangerous situation” of having protestors camped out in the cold. U.S. Rep. Kevin Cramer called it a very chilling signal” for future infrastructure projects in the United States. House Speaker Paul Ryan (R‑Wis.) also weighed in on Twitter:

This is big-government decision-making at its worst. I look forward to putting this anti-energy presidency behind us. https://t.co/Qu0nFTmGZv

 — Paul Ryan (@SpeakerRyan) December 52016

The Standing Rock Medic & Healer Council, which provides services to the encampments, has stated that protests are likely to continue until the pipeline is no longer a threat — whether this means investors pulling out or the federal government shutting DAPL down in court. Either way, Sunday’s decision marked a significant victory for the Standing Rock Sioux.

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Aiden Kent is a 2016 fall editorial intern at In These Times and a graduating senior at DePaul University.
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