Lawyers for Energy Transfer Partners (ETP), the builders of the $3.8 billion Dakota Access Pipeline (DAPL), pressed the company’s case for federal courts to allow it to finish the job and drill under Lake Oahe in a hearing on Friday, December 9. During a status conference hearing in federal district court in Washington D.C., Judge James Boasberg laid out a schedule to rule on a motion filed by ETP in November after the U.S. Army Corps of Engineers, the U.S. Department of Interior and the U.S. Department of Justice initially announced that the federal government was withholding the last required easement in order to review its approach on how it handled such permits on tribal land. On Friday, ETP asked for an “expedited” ruling on its motion, particularly in light of the Army Corps’ recent denial of the easement on Sunday December 4 and the fact that it was losing close to $20 million per week due to delays on the project. According to multiple sources, ETP has contractual obligations to flow crude oil through the pipeline by January 1, 2017.
In what was surely a disappointment for ETP Boasberg, however, gave notice that he would render a decision in February. He delivered timelines for the submission of briefs from the federal government, Dakota Access and the two tribal nations involved in the case, the Standing Rock Sioux Tribe and the Cheyenne River Sioux. Standing Rock Sioux Tribe needs to file its brief by January 6, as does the Army Corps.
“We’ll move forward as best we can,” Boasberg told the packed courtroom.
“The day after the [December 4] decision was announced, Dakota Access filed a motion for summary judgment, arguing that they already have all necessary permissions to cross under the Lake,” Standing Rock Sioux Chairman David Archambault II said in a statement issued after the December 9 hearing. “This argument is legally flawed, and we believe that the motion will be denied upon appropriate review. Judge Boasberg made it clear that the issue raised by Dakota Access will not be decided at least for many weeks. In the meantime, Dakota Access does not have permission to drill under Lake Oahe.”
Looming over the proceedings was the prospect of a new Presidential administration that could shift the federal government’s stance on the pipeline. Advisors to President-elect Donald Trump, who will be sworn into office on January 20, have indicated that they favor completion of the pipeline. In his statements, Boasberg acknowledged the uncertainty of the future administration’s position. He indicated he would proceed as planned even though his decision on ETP’s claims—that the easement had been granted, in essence, when certain permits were issued in July—might be rendered moot by action on the part of President Trump.
“It’s not my business to guess,” said Boasberg.
A more positive turn of events for Standing Rock could be the upcoming Environmental Impact Statement process.
“There was also a meeting with federal officials regarding the initiation of the EIS,” reported Standing Rock Sioux Chairman David Archambault II in a statement. “When the process is initiated, it will be published in the Federal Register as a Notice of Intent to Prepare a Draft Environmental Impact Statement. We will then enter a period of determining both the scope of the EIS and who the cooperating agencies will be—federal, tribal and state parties with an interest in the project. It is extremely important that the EIS process begin immediately, and I ask that all of our supporters are attentive to the proceedings. We must have confidence but ensure that this time around, the process works for us instead of against us.”
In the meantime, organized resistance against DAPL continues. Activist groups involved in running several camps near the Cannonball River issued a directive on Friday, December 9 titled, “What’s Next for Water Protectors at Standing Rock?” The document was produced by the Camp of the Sacred Stones, the Indigenous Environmental Network, the International Indigenous Youth Council and Honor the Earth.
“Standing Rock Sioux Tribal Chairman Dave Archambault II has asked people to return home once the weather clears, and many will do so,” the grassroots coalition told supporters in the document. “Others will stay to hold the space, advance our reclamation of unceded territory affirmed in the 1851 Treaty of Ft. Laramie, and continue to build community around the protection of our sacred waters.
“We fully understand the Standing Rock Sioux Tribe’s desire to transition people out of the encampments and back to their homes. The influx of people to Standing Rock as winter arrives has been an enormous strain on local resources due to the inherent challenges and dangers of travel and camping in this climate and, in many cases, a lack of necessary knowledge, skills, and experience on the part of those who have traveled to join us.
“We ask anyone that is considering traveling to join the encampments at Standing Rock to stay home for now and instead take bold action in your local communities to force investors to divest from the project.”
The full statement can be read here.
Archambault also established what he sees as the best course for those people wishing to work for the best possible outcome.
“We also urge you to contact the banks investing in this risky and unsafe project to make them aware of the terrible acts this company has committed and reconsider their financing,” he stated. “Also, I ask all water protectors to make plans to return safely home when the weather permits, avoid conflict, and pivot your advocacy to holding the government accountable with respect to the EIS and our court battles. This is far from over.”