Stanford experts discuss legal and environmental challenges at Standing Rock

Since April, protesters have been in a standoff with law enforcement authorities over a planned underground pipeline that would transport crude oil from the Bakken oil fields in North Dakota to an oil tank farm in Patoka, Illinois. The pipeline would run less than a mile from the northeast border of the Standing Rock Sioux Reservation underneath the tribe’s primary water source, the Missouri River. Police have used water cannons, rubber bullets and pepper spray to stop protestors from advancing, while protestors have been accused of starting fires around barricades. The U.S. Army Corps of Engineers (USACE) has said it will close the area where protestors are camped starting Monday, Dec. 5.

Stanford professors Greg Ablavsky, Rob Jackson, and Deborah Sivas spoke with Stanford Report about the environmental and legal challenges to the pipeline.

What is the current status of the legal challenge against the Dakota Access Pipeline from the Standing Rock Sioux?

Ablavsky: Both the district court and the D.C. Circuit largely denied the tribe’s motions for an emergency injunction. The legal challenge proceeds, but Dakota Access may continue construction. However, USACE is still reconsidering its permitting decision for the pipeline’s river crossing, so Dakota Access cannot currently build on USACE land bordering the Missouri River.

What is the likelihood of a pipeline leak that would contaminate the water source of the Sioux at Standing Rock?

Jackson: The chance of a large oil spill is small, especially from a new pipeline. It isn’t zero, though. Pipeline spills are up in the United States primarily because we’re producing and shipping more oil than five or 10 years ago. The biggest fear is a spill that affects the Missouri River and drinking water for the Standing Rock Sioux and other people.

Do the people of Standing Rock have grounds to argue against the pipeline based on the Clean Water Act?

Sivas: Because construction of the pipeline will require digging and other work in hundreds of wetlands and water bodies, including tunneling under the Missouri River, the Clean Water Act mandates that the pipeline company obtain various permits from USACE. In July, the tribe filed a lawsuit in U.S. District Court arguing that, in issuing these authorizations, USACE failed to adequately consider the impacts of construction and operation on the tribe’s cultural, religious and historic uses of the area.

Are there laws that mandate that Native American tribes must be consulted on projects that may impact them?

Ablavsky: Various federal statutes – including the National Historic Preservation Act at issue here – require consultation with affected tribes. This consultation, however, does not mandate a particular outcome, and agencies may still approve projects notwithstanding tribes’ objections, although written comments are required.

The United Nations Declaration of Rights of Indigenous Peoples (UNDRIP), which the United States agreed to support in December 2010, mandates that the “free, prior and informed consent” of indigenous peoples be obtained prior to governmental actions affecting them. But in announcing its support, the United States noted that the UNDRIP was “not legally binding or a statement of current international law.”

Why are the Treaties of Fort Laramie from 1851 and 1868, which gave the Sioux much larger territorial claims over the land in dispute with the pipeline’s construction, not being honored by the U.S. government?

Ablavsky: In the late 19th century, Congress diminished the boundaries of the Sioux Reservation established in the 1851 and 1868 treaties. Although this violation of the treaties occurred without tribal consent, unfortunately the Supreme Court’s 1903 decision in Lone Wolf v. Hitchcock allows Congress to abrogate Indian treaties unilaterally.

Would rerouting the pipeline be possible, and could this be ordered through the courts?

Sivas: There has recently been talk by some, including President Obama, of rerouting the pipeline to avoid the impacts to the tribe and its sacred lands. The pipeline company, Energy Transfer Partners, seems to have soundly rejected that idea. The laws being used by the tribe in its lawsuit would not allow a court to order a new route. At most, the court could block the proposed construction and order USACE to consider a different route.

Advocates against the Dakota Access Pipeline have alleged that the original pipeline route was changed due to concerns over its impact on Bismarck’s water source. If true, how does this affect the tribe’s case?

Sivas: If the record in fact shows that the proposed pipeline had been rerouted to avoid environmental impacts, such as impacts on Bismarck’s water supply, that may cut against the tribe’s legal claims. It would allow USACE to argue that it already conducted a full review of the options as the law requires, and chose the least impactful. On the other hand, if prior rerouting protected non-native communities by pushing impacts onto the tribal lands, the tribe might have some new arguments based on environmental justice or environmental racism.

What can the Obama administration do, if anything, to stop construction of the pipeline?

Ablavsky: For now, USACE is reevaluating the permit required for the crossing of the Missouri River, which has temporarily halted construction. While the Corps asked for more time, it cannot delay indefinitely, and a decision to revoke the permit would almost certainly be subject to legal challenge.

How might the incoming Trump administration affect the pipeline dispute?

Ablavsky: In general, Trump’s handful of past statements on Indian affairs are not encouraging to supporters of tribal sovereignty. The Trump administration could likely reverse any Obama administration decision and allow construction to proceed, notwithstanding the objections of Standing Rock. The sole recourse then would be with the courts, although, given the recent rulings, Standing Rock probably doesn’t have much likelihood of success.

Greg Ablavsky is an assistant professor of law at Stanford Law School.

Rob Jackson is the Michelle and Kevin Douglas Provostial Professor in Stanford’s School of Earth, Energy & Environmental Sciences and a senior fellow at the Stanford Woods Institute for the Environment and the Precourt Institute for Energy.

Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law, director of the Environmental and Natural Resources Law and Policy Program and director of the Environmental Law Clinic at Stanford Law School, and a senior fellow at the Stanford Woods Institute for the Environment.