What's next for the Dakota Access pipeline

The U.S. Army Corps of Engineers denied a permit for the Dakota Access pipeline to cross under the Missouri River.

By Sandy Tolan

Dec. 6, 2016 3 AM PT

Reporting from Cannon Ball, N.D. — The controversial Dakota Access pipeline is in limbo after the U.S. Army Corps of Engineers on Sunday declined to approve a permit that the pipeline company, Energy Transfer Partners, needs in order to finish construction along the planned route.

Here’s a look at what might be next for the pipeline:

For the record:

7:30 p.m. Aug. 22, 2019In an earlier version of this story, the last name of attorney Chris Reagen was misspelled as Reagan.

Will the pipeline still be completed, but along a different route?

It’s hard to say. The pipeline has already largely been built save for a final section that was supposed to run underneath the Missouri River near the Standing Rock Sioux Reservation. Construction of that section is now stalled while the Army Corps of Engineers conducts a formal review of the environmental impact the pipeline would have. Once that’s finished, the Army Corps of Engineers would come to a final decision about the pipeline, in light of its findings and public input.

In a statement Sunday, Energy Transfer Partners repeated its assertion that it was not open to alternative routes. The company is “fully committed to ensuring that this vital project is brought to completion and fully expect[s] to complete construction of the pipeline without any additional rerouting.… Nothing this administration has done today changes that in any way.”

One possible reason for the company’s insistence on the current route, beyond its estimated $2.5-billion investment to date, is the impending deadline it faces to get oil flowing in the pipeline or risk losing lucrative oil contracts negotiated when crude oil prices were significantly higher than today.

“Dakota Access has committed to complete, test and have [the pipeline] in service by Jan. 1, 2017,” the company revealed in August, in response to a motion for an injunction against the pipeline filed by the Standing Rock Sioux Tribe. “The long-term transportation contracts give shippers a right to terminate their commitments if [the pipeline] is not in full service per the contract deadline…. Loss of shippers to the project could effectively result in project cancellation.”

Despite mention of possible alternate routes, there’s been little public discussion of the matter. “That’s exactly the problem,” said Jan Hasselman, an attorney for Earthjustice in Seattle who represents the Standing Rock Sioux Tribe. “They should have been examining alternatives in a transparent and public way from the beginning.”

Early in the process, officials considered routing the pipeline near Bismarck, N.D., but rejected the idea, in part because of worries about the proximity of the pipeline to municipal wells.

Hasselman said the tribe had proposed one alternative that does not cross the Missouri River, but it had yet to be thoroughly examined.

Can Donald Trump just reverse the Army Corps’ decision when he takes office?

Some believe the Obama administration’s action would be easily reversed by the incoming Trump administration.

The decision “violates the rule of law and fails to resolve the issue,” said North Dakota Republican Sen. John Hoeven. “Instead, it passes the decision off to the next administration, which has already indicated it will approve the easement.”

Morton County Commissioner Cody Schulz, whose militarized police forces have spent more than $10 million in repeated confrontations with protesters to secure the pipeline route, added, “It appears the federal government let the citizens of Morton County, law enforcement officers and protesters suffer for months while making a political decision that is likely to be overturned when the new administration takes office next month.”

“This is an opportunity for President Trump to send a clear and quick signal that America is open for business,” Craig Stevens, a spokesman for the Midwest Alliance for Infrastructure Now, a coalition supporting the pipeline, said in an interview. “And that American infrastructure is available for investment.”

Yet it was far from clear that a new president could quickly reverse the Army Corps’ decision. Lawyers, activists, congressional staffers and industry analysts spent Monday parsing the statement by Jo-Ellen Darcy, the Army’s assistant secretary for civil works, that “there’s more work to do,” and that alternative routes “would be best accomplished through an environmental impact statement with full public input and analysis.”

The statement from the Army Corps of Engineers does not explicitly state that it will never grant the easement, but it emphasizes the need to explore alternative routes.

“It’s a significant win,” said Jane Kleeb, a longtime pipeline foe and director of the environmental coalition Bold Alliance. How significant? “We won’t know,” Kleeb said, until the scope of the environmental impact statement is printed in the Federal Register in the coming weeks.

At that time, any administration would be legally bound to follow the environmental impact statement process, which would require the Corps to examine “full risks to water, doing worst-case spill analysis, capability of local first responders” and other factors, Kleeb said.

“It makes it much more tricky for a new [president] to come in and issue an executive order and just approve it,” said Chris Reagen, an attorney specializing in natural resources development on Native American land. “Taking such action would open up the project to an array of potential litigation. Once this process is underway, I don’t think he can just walk in and wave his hand and approve this.”

One legal expert envisioned a narrow path for the new administration to quickly approve the project. “In theory, the Army Corps could reverse itself after the inauguration, saying, we do not need to undertake a full-fledged EIS exploring all the alternatives,” said Thomas McGarity, an environmental law professor at the University of Texas. “But that would risk litigation by pipeline opponents arguing that the Corps would have to explain why it reversed itself.”

What if the company behind the pipeline changes its mind and decides to reroute the pipeline?

It wouldn’t be able to begin construction along a new route anytime soon.

Even putting together a more limited environmental impact statement, which would examine the area around the Standing Rock Sioux Reservation, would probably be a lengthy process. A broader environmental impact statement could examine the effect along the route where construction has already occurred and would take at least a year.

Are the protests going to continue?

Protesters say they aren’t ready to go home. At the Seven Council Fires camp on Monday, where thousands of pipeline opponents, joined by U.S. military veterans, had been celebrating their victory, Native American activists warned that Energy Transfer Partners remained intent on completing the project on its own terms.

Some people “think this fight is over,” said Matthew Black Eagle Man, 48, of the Long Plain First Nation in Manitoba, Canada. “If the fight was over, those lights” of the pipeline company nearby “wouldn’t be turned on last night,” Black Eagle Man said, sitting in front of a fire in a tepee as a driving snow fell outside. “Right after that proclamation they went right back to work. So we know to be vigilant we have to stay and maintain this camp. Not until they’re gone will we walk away from here.”

Tolan is a special correspondent.

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