For Pipeline supporters

The Dakota Access Pipeline Project Shows Systemic Issues

Maxx Kriger

Intercultural Competence

Jennifer González

12/12/2016

The Dakota Access Pipeline Project should be allowed, under current laws, to be completed

It’s relatively easy to look at the laws currently in place in the United States and past cases to decide whether the Dakota Access Pipeline Project should legally be allowed to finish along its projected route through the northern border of the Standing Rock Sioux Reservation. Some people, on this subject, have difficulty separating the current laws from morals and ethics. While laws are, in general, meant to uphold a society’s moral and ethical inclinations, some laws are selfish and some are manipulated for selfish means. In the case of the Dakota Access Pipeline Project, we can observe some of these laws in action. The problem faced is in the laws and infrastructure of enforcing them. There are many ethical arguments against the pipeline that intrudes on Native American sovereign nations and could permanently toxify their water supply, but none of them hold value in the court of law.

            The first item that makes most people question the legalities of this pipeline project is the started construction before attainment of all the necessary permits for the pipeline. At a glance, and when phrased in this tumultuous way, it seems that this is, or should be, illegal. The truth is that the pipeline goes across four state borders and is required to get many permits in each one. Dakota Access LLC only constructed parts the company had permits for. This infrastructure of laws and order does create some problems in a scenario where the company would have to reroute a part of the pipeline because they couldn’t get the permits necessary, and has already constructed the surrounding parts. This is exactly what happened in North Dakota starting in April. While the people of Standing Rock Sioux Nation and protesters continuously rejected the already-once rerouted project in standing rock, the surrounding parts of the pipeline were built, operating under the assumption that this permit would be in hand soon. The 74 involved police powers seemed to be privy to this information since they weren’t aggressive or violent toward protesters form the beginning of the protests in April until early September, when the surrounding areas were almost complete. This may also have something to do with why the pipeline route could be changed from Bismarck to Standing Rock so easily, and why it’s more complicated/difficult to change routes again. It may just be another case of United States Government vs. Native American nations.

The route was already changed once, with little to no resistance; could it be legal to necessitate so much more resistance out of one group than another group? (Civil lawsuit) People have been being water hosed in sub-freezing temperatures and camping for months for this water. (Civil lawsuit) In Bismarck, it never left the Capitol building. America’s history might incline that this differential is due to Bismarck being 92.4% white, per the US Census Bureau. It might seem as though the water of the white people is more important than the water of the Standing Rock Sioux Tribe. This could be true, however a less reported statistic is that the Bismarck route was 10 miles longer and nearly impossible to keep 500 feet from all homes, as is law. (Dakota Access Pipeline environmental assessment) When the Bismarck route was proposed by the private company-Dakota Access LLC in the application for permits, The United States Corps of Engineers, who is responsible for creating and assigning the permits, then rejected the route for an easier, ‘more legal’ and ‘more safe’ route.

            Water safety is, obviously, a huge part of this argument on all sides. Unfortunately, the American people, and certainly the Native American people, have absolutely no say in this part of the legal argument. The legality of a potentially hazardous project like a pipeline is entirely in the hands of the USACE. The uproar about this pipeline is focused on the underground crossings of the Missouri River and Lake Oahe about 60 feet under the waterbed. The ACE and Dakota LLC address potential risks of all water crossings in their environmental assessments, including the Missouri River. This is supposed to make the public feel like projects like these are safe and supervised

Unfortunately, the opposite is true. On a systemic level, there is flagrant misconduct in permitting, constructing, and upholding pipelines and other environmentally risky sites. And, the disenfranchised people of the United States feel the effects of these misconducts far more than others. For instance, in neither of the assessments for permitting the pipeline, is there any mention (any -assessment-, if you will) of what will happen when the oil gets into the water of any river and begins to flow downstream. They write about rates of Spectacle Case Mussels in the area and how they would be affected in the event of a spill, but not the Humans 10 miles downstream. Based on statistics given by ACE and Dakota Access LLC, this pipeline, alone, will leak into one of its crossings every 5-25 years. (Dakota Access Pipeline environmental assessment)

There are also pipelines already that have leaked and are leaking into rivers and there are rarely legal repercussions or proper cleanups. When there are, they are not enough to prevent environmental malpractice. The pipeline here in Michigan that busted in 2010 resulted in a 3.7 million dollar fine. The mother company, Enbridge, admitted that it not only knew the pipeline had a crack for months, but knew it had busted for 17 hours before the company had any sort of response to it. (Equilar, 2013) Since almost a million gallons were spilled, the company paid as much for spilling a gallon of oil in the environment as someone would for spilling a gallon of milk at Walmart. The CEO of Enbridge, Al Monaco, could have paid this fine with his own salary that year and still have went home with a million dollars. (Equilar Atlas) The purpose of this story is to illustrate how easy it is for oil companies to make money. It is so easy that often it’s easier to break all the laws and pay the fine later than to try to extract the oil slowly and carefully, as the law encourages. Enbridge also had 92 ‘out of code’ facilities out of 102 when an investigation was done in 2010. No fines were given. (CBC News)

The infrastructure allows companies to make money pumping oil fast and loose, and pay fines along the way for environmental disasters. That much is evident and easy to believe. Harder to believe is that the same infrastructure allows the government to take similar steps. A gold mine near the San Juan river was being drilled into by the EPA, despite prospectors’ guidance away from doing just that, unleashing 3,000,000 gallons of chemically toxic water into the river. The EPA paid similar fines and offered minimal assistance to the Native American reservation. The agency dug three ponds around 10x20 feet to dilute heavy chemicals and authorized the waters use 10 days later.

"We would have no reservation about pumping from the river but the fact is, we're in a situation where we have enough water in reserve," Mayes said. Mayes said he'll meet with the water engineering team Monday to develop a timeline on pumping from the river. Farmington officials have said they have about a five-month supply of water in the reservoir.

When the reservoir ran low, they began pumping water from the, now thick and yellow, river. This unacceptable behavior has led to a lawsuit on its own, claiming almost $3,000,000 has been spent by the community to clean up the mess that the EPA created and promised reimbursement for.

            The pipeline culture financially supports the corporations and the government. It makes sense that the corporations and the government would support the pipeline culture. When eminent domain laws were first written, they were used mostly within railroad culture, the big money-maker of the 1800’s. (Leeds, 2005) Since then, eminent domain has been used by the privileged to make ‘more efficient use’ of land than less privileged people. This usually means industrialization of a less profitable land. As in the famous case of Kelo vs. City of New London, people were bought out of their homes, which were demolished to create nicer, higher payment homes. (Leeds) There are treaties and pacts protecting native tribal and ancestral lands from these types of situations, but they almost never mean anything to a judge when eminent domain is brought into play.

            Clearly, in a Country where there are atrocities like those committed in Standing Rock, and those atrocities go unchecked, there is a systemic problem. By looking at how pipelines obtain permits and how pipelines under legal permits are operated, it is evident that the public’s safety and well-being is not the first priority. This is further reinforced by the EPA’s misconduct and Enbridge’s misconduct, which were relatively unpunished. When looking at these things together, one must reflect on why none of them are stories of upper class white people being moved or abused. In the cases represented in this paper, two systemic problems seem to be at play, creating a world where DAPL and San Juan river are commonplace. The mistreatment of races, specifically the Native American nations, is a systemic problem, and so is the evident mistreatment of the environment.

Annotated Bibliography

"Upstream From Standing Rock, Tribes Balance Benefits, Risks Of Oil Industry." NPR: Economy, 24 Nov. 2016. Opposing Viewpoints in Context, link.galegroup.com/apps/doc/A471280032/OVIC?u=lom_gvalleysu&xid=d5575463. Accessed 6 Dec. 2016.

Amy Sisk of the Public Media Project: Inside Energy speaks about Ft Berthold, which is 150 miles northwest of the DAPL. It also has a pipeline that crosses the Missouri River. She notes that there is always a cost-benefit analysis when considering constructing these pipelines and that the Army Corps of Engineers is also in control of new pipelines being protested going under the reservation’s reservoir. This provides a context of how pipelines can be done safely and effectively, not to mention, bring wealth and prosperity to Native American nations. It also shows a strange coincidence that both pipelines are being constructed right underneath Native Americans’ water. This pipeline spilled nearly a million gallons of wastewater “…and the community is still feeling the effects of it.”

Sisk, Amy. "Fight Feels Familiar for Tribes at Pipeline Protest." Inside Energy. Opposing Viewpoints in Context: MEL. http://insideenergy.org/2016/09/16/fight-feels-familiar-for-tribes-at-pipeline-protest/.

In this piece, verbal accounts of members of the DAPL protest are taken. Many of these accounts are eerily similar in context and in process. The stories are of government pushing Native Americans around and, bluntly, imposing their will. Each story is linked to a more reputable source which provides the background for each individual account of being bullied and oppressed throughout history. In the case of Celilo falls, a Native American fishing grounds is literally washed away despite eminent domain laws contradicting the case. In another incident, a group of EPA employees caused an accident at a gold mine that lead to millions of gallons of chemically toxic water from inside of the mine to spill into the nearby river. Some these people have spent their whole lives fighting battles against the systematic oppression of Native Americans like Brian Cladoosby, who cites a coal mine being built on Native American ancestral land in Texas. This is also against eminent domain.

Caldbick, John. "Celilo Falls disappears in hours after The Dalles Dam floodgates are closed on March 10, 1957." The Free Encyclopedia of Washington State History. February 10, 2012

The author writes historically about the fishing that occurred for thousands of years, at Celilo Falls, and the long legal battle that led to the falls literally being washed away into a larger lake. The battle is reminiscent of the DAPL legal battle in that the actual treaties are not what is being respected or even acknowledged by the courts. The decision seems to be based more on the ‘taxpayers right’ to the land and resources and less on the treaties and laws in place to protect the Natives rights. In this case, a dam was being constructed to make it easier for people in the area to get water and fish, but the dam would also destroy the fishing and water gathering cite the Native Americans had signed a fishing treaty over. It, too was decided largely by the Army Corps of Engineers. For these reasons, Amy Sisk uses this story in her piece cited above.

Kellogg, J. (2015, Aug 16). San Juan county reopens public access to animas, san Juan rivers. Daily Times Retrieved from http://search.proquest.com.ezproxy.gvsu.edu/docview/1704392125?accountid=39473

Joshua Kellogg reports the reopening of the San Juan river in an unbiased article with many quotes from the locals. Here is one from the City Manager.

"We would have no reservation about pumping from the river but the fact is, we're in a situation where we have enough water in reserve," Mayes said. Mayes said he'll meet with the water engineering team Monday to develop a timeline on pumping from the river. Farmington officials have said they have about a five-month supply of water in the reservoir.

The city manager would have no problem using a plant on water from the San Juan River that filters out 95% of harmful solids, if they needed water to use. The water in the San Juan, at the time, was cited at being at 15,000 times the healthy levels of chemicals. Using those two numbers given by the EPA, the city manager has no problem using water that is 750 times the healthy level of chemicals for his constituents.

Main, Carla T. "How eminent domain ran amok." Policy Review, no. 133, 2005, p. 3+. Opposing Viewpoints in Context, link.galegroup.com/apps/doc/A138277926/OVIC?u=lom_gvalleysu&xid=0ec2c0db

The author writes a long, very passionate, very detailed breakdown of the definitions and applications of eminent domain over the past 150 years or so, with a focus on the case of Kelo vs. City of New London. This case was not the first case to go to supreme court in which the purpose of the seizing of the land was for a private company to make money for the local economy. However, it was the first case in which the private interest succeeded in seizing the land for a private project using the government’s eminent domain laws. The author acknowledges this 5-4 case ruling as the start of a trend in which companies started using eminent domain to acquire land for ‘public economic growth.’ Like the eminent domain exercised for Dakota Access LLC, it was highly contested and detrimental to the people whose land is being taken.

United States Army Corps of Engineers. "Environmental assessment: Dakota Access Pipeline Project, crossings of flowage easements and federal lands." http://cdm16021.contentdm.oclc.org/cdm/ref/collection/p16021coll7/id/2427.

Authored by Dakota LLC hand in hand with our federal government, this assessment is a 1000-page long distraction from obvious problems not only with this project, but the pipeline culture. The assessment worries deeply about the continued existence of the Missouri River Spectacle Case Mussel, but fails to assess damage for the Humans just ten miles downstream of a pipeline that will move close to 200,000 gallons of oil a day. There is likewise useless information all over the assessment and many key points missing from it. In writing the assessment the ACE was quoted: “…when there was a part of the pipeline that intersected ancient Native grounds, we usually stayed away from them.” It is law to ‘stay away from them.’

Regan, Lauren. "1983 Civil Class-Action Lawsuit." Civil Liberties Defense Center. https://cldc.org/wp-content/uploads/2016/11/Standing-Rock-emergency-injunction-1.pdf

           

This is a lawsuit filed against the police forces directly responsible for hateful, disgusting malpractice that led to the hospitalization of at least 20 protesters, many of them losing access to, or just losing, body parts. It also holds Dakota Access LLC responsible for the actions taken on their behalf. It is used as a reference for those who aren’t aware of how hard the people at Oceti Sakowin camp are fighting for their right to clean water, and their children’s’ right to clean water.

Equilar Inc. http://people.equilar.com/bio/al-monaco-enbridge-inc/salary/650038#.WEnj27IrLIW

Equilar is a publisher of online and physical magazines about the most connected or wealthy individuals and companies in North America. It publishes a monthly issue and has an “Equilar Atlas” available to nonmembers, where it collects some of the monthly information. It has a plethora of very general numbers and names on such companies as Enbridge, Exxon, and GE, and such executives as Dave Monaco.

Stacy L. Leeds, Eminent Domain, or Some Other Name: A Tribal Perspective on Taking Land

In this journal, the author takes many cases of eminent domain laws being used against Native Americans and contrasts cases of eminent domain laws being used to take other people’s land. She notices that there is more outrage among most populations than in Native American populations. She theorizes and supports this argument by showing how much longer the native people have been subjected to eminent domain and now much more frequently unfair or ‘unlawful’ cases against Native Americans are than against other populations. The author offers a comprehensive account of the history of eminent domain and its relationship to Native Americans. This starts, obviously, with the formation of the 13 colonies, but officially starts when the term eminent domain comes into use at the end of the 19^th century.