Federal courts recently handed down major decisions against big pipelines that would transmit oil around the country, while other big pipelines are facing legal challenges that may put them out of business. What do these decisions mean for America’s continued oil and gas buildout and the Trump administration’s campaign for energy dominance?
Then we hear from Nick Tilsen, President and CEO of NDN Collective, a Native American rights and social justice organization based in South Dakota, about what the Dakota Access decision means for the rights of America’s Indigenous people. Tilsen is a member of the Oglala Lakota Nation.
Listen to the full episode or read the transcript below:
Reid Frazier: Refresh our memories: What is the Dakota Access pipeline and why has it been so controversial?
Ellen Gilmer: Dakota Access is a pipeline backed by a company called Energy Transfer. It’s a pipeline that moves oil from North Dakota, where there’s a lot of shale development, to Illinois, where it connects to this big network. So various permits were approved by different agencies under the Obama administration back in 2016. There were huge protests that year. Thousands of people went to North Dakota just outside of the Standing Rock Indian reservation.
This pipeline crosses a body of water about a half a mile north of the reservation and there’s a lot of tribal opposition to the project for that reason. The Obama administration ended up withholding a permit and agreed to do some more environmental analysis.
The Trump administration reversed course and the pipeline got built and it’s been delivering oil for three years.
RF: So the pipeline’s already been pumping oil for three years. What did the judge in this case decide?
EG: There’s been this litigation going on since 2016. And the judge ruled that the Army Corps of Engineers, which is a federal agency that approved one of the key permits for Dakota Access, didn’t comply with the National Environmental Policy Act (NEPA) when it approved that permit. It didn’t properly consider that there was a lot of expert disagreement about the oil spill risks. So the judge actually determined that earlier this year. And then he said, well, I’m going to hear from the parties and figure out what should be the consequence of this decision.
Does this just mean the Army Corps should do another environmental review and the pipeline can stay in place in the meantime? Or does it mean that the pipeline should shut down? So on July 6th, we got the answer. The judge said the pipeline’s got to shut down. He gave it a deadline of August 5th to empty it of oil and to stay that way while the Army Corps does this court-ordered environmental review, which is expected to last into 2021. The decision is already on appeal.
The status of that shutdown order is very much up in the air. Right now, it’s actually on hold while an appeals court takes a look at the issue. So it’s kind of an open question whether and when a shutdown would actually happen. But it was a huge win for the tribal advocates.
RF: Is this something that happens a lot, that a judge will order a pipeline to just shut down and drain all that oil out?
EG: No, it’s unprecedented. There has never been a major oil pipeline forced to shut down for inadequate analysis under NEPA. There have been some smaller shutdowns or construction stoppages for other reasons, but nothing this major has ever happened for NEPA reasons to an oil pipeline.
RF: Talk to me about the company’s response. They’re fighting this.
EG: Energy Transfer — which is a Dallas-based energy company — they’re ready to pull out all the stops to make sure this shutdown doesn’t happen. They have a strong legal team working on the case and they’re pursuing all their legal options. They’ll go to the Supreme Court if they need to, to keep this pipeline open.
The company announced a day or two after the court decision that they had not taken any steps to shut it down, and they weren’t planning to. This statement was seen by a lot of critics as an act of defiance by the company. The company later walked it back and said, ‘of course, we’re going to comply with a court order. But we’re just so confident that we’re going to win on appeal that this shutdown is never going to happen.’
RF: I want to just go back a little bit into the judge’s decision. Why did he say that the environmental review was not done properly?
EG: Basically, for Dakota Access, the Army Corps did what’s called an environmental assessment, which is a type of study that looks at a lot of impacts. It decided not to do an environmental impact statement, which is a different type of study that’s a more in-depth exercise.
“There’s expert disagreement about the impacts of an oil spill and the risk of an oil spill and how that could affect all the tribes downstream that rely on that water.”
So under NEPA, when a project’s impacts are considered “highly controversial,” that means the agency should be doing this more in-depth environmental impact statement. So the judge decided that the impacts of Dakota Access were highly controversial because there’s expert disagreement about the impacts of an oil spill and the risk of an oil spill and how that could affect all the tribes downstream that rely on that water.
RF: What is the Trump administration saying about this? What impact does this have on Trump’s agenda, which is very much what’s pushed these big oil and gas pipelines further?
EG: This is another example of the federal courts providing a check on the Trump administration’s efforts to streamline environmental reviews and to really push through energy infrastructure, particularly fossil fuel infrastructure. This was something that the Obama administration initially approved, then decided to do some more study. President Trump made it one of his first priorities when he took office, to get this pipeline on track, and he did it successfully. So this is a real setback to what had otherwise been a really big campaign promise.
The Trump administration wants to prioritize the development of U.S. energy and especially fossil fuels, and building the infrastructure to move those fossil fuels is a critical part of that. The more that courts step in to require additional environmental review or any other kind of reason to slow down development or delay permits, that just makes it harder to reach the idea of energy dominance.
It remains to be seen what the impact would be on actual oil and gas production in North Dakota. It shows no matter how committed the president is to pushing the energy dominance agenda, there will always be uncertainties based on how courts review agency decisions.
RF: I want to talk to you about a couple other pipelines. The first is Keystone XL pipeline, which I understand is on hold pending a court case. What can you tell us about that pipeline?
EG: Keystone XL is another big one that was dominating the headlines, at least in the environmental and energy world, several years ago. The Obama administration denied a permit for it. President Trump took office and said, ‘let’s get Keystone XL on track and issued the final permits.’ The company behind that pipeline wants to move oil sands from Canada down into the U.S. They have run up against a constant battle in the courts.
This is a pipeline that has not been built yet. The big decision that has delayed it is a federal court decision in Montana that said water permits for Keystone XL didn’t comply with the Endangered Species Act. So the court scrapped this water permit for Keystone XL. It went a step further and it actually scrapped the whole permitting program that the Army Corps had used across the country. So no new oil and gas pipeline could rely on this permitting program that they typically use. The Supreme Court stepped in and said, ‘Okay, we’re going to restart this permitting program for all the other oil and gas pipelines.’ But the permit is still on pause for Keystone XL and it’ll stay on pause while a federal appeals court takes a look at the case and decides what to do next.’
RF: Let’s talk about another pipeline where the owners of the pipeline have decided to scrap it. It’s the Atlantic Coast pipeline. What can you tell us about that pipeline and why its owners, Dominion and Duke Energy, decided to pull the plug?
EG: Atlantic Coast was a proposed natural gas pipeline that would go from West Virginia to Virginia and North Carolina. This project has been in the works since 2014. Duke and Dominion have been fighting off all these legal battles for all that time. They’re fighting over acquiring land, getting the right permits. They had a case about the pipeline crossing the Appalachian Trail that went all the way up to the Supreme Court and they won. That was just about a month ago. A few weeks later, they decided to pull the plug on the pipeline, which seemed pretty shocking to people who had followed the Supreme Court battle, ‘like, okay, they won. So why are they giving up on this pipeline?’
“These three pipelines show how sophisticated the environmental, tribal and land owner litigants have become in challenging these projects.”
The thing is that the Appalachian Trail issue was just one permitting uncertainty among a whole lot of other uncertainty. So the developers just decided this is not worth [their] continued investment. So as a business decision, they decided to just give up on it.
RF: All of these decisions taken as a whole, are they affecting the oil and gas industry and these big mega-projects that take years and years to build and billions of dollars? Is this going to be harder to pull these off because of all these legal fights these companies have to face?
EG: Definitely. These three pipelines show how sophisticated the environmental, tribal and land owner litigants have become in challenging these projects. They have gotten to know all the best ways to file challenges in court, like which permits are likely to be most vulnerable and where they’re likely to get traction. They’ve really built up this very strong legal strategy and it’s been successful.
Dominion and Duke saw that it wasn’t worth their time or money anymore. Investors are getting a little skittish about it. They don’t really want to have their money tied up for a decade of uncertainty. The Trump administration is trying to reassure everybody that it’s still worth their time. They’ve been quite obviously very, very frustrated with the success of the environmental legal movement here.
RF: It’s obvious who would be opposed to oil and gas pipelines and the opposition that they’d engender. But I think also sometimes when I read about these court battles, what’s going to happen when we have a massive build-out of renewable energy and there needs to be high voltage lines installed all across the U.S.?
Is this kind of a preview of some of the legal strategies that people who don’t want these to go through their land or their communities, that they might take these legal strategies to slow that kind of development?
EG: There is definitely some of the same dynamics at play in the build-out of renewable infrastructure as there are for pipelines. NEPA [National Environmental Policy Act] which has gotten in the way of Dakota Access, has been used to fight big transmission projects that would help move electricity. So we’ll definitely be seeing that in the renewable energy space, and we certainly already have.
One example is there was a court case that’s been going on the past several years about this big transmission line that would go across the James River in Virginia. The environmental groups involved in that case – it was environmental groups and historic preservation groups – they won, but the court who was handling the case decided to keep the project in place. They were going to require that the federal government to do another review, but go ahead and keep the project in place.
Some people have pointed to that as a kind of counterfactual, like, yeah, the same stuff could come up with renewable energy, but the fact that it’s renewable energy could play into a judge’s decision in whether to actually take a project down or not.
It’s certainly true that some big renewable projects could be derailed by not following environmental statutes. I think a lot of environmental lawyers would be fine with that because they want to see that kind of energy infrastructure built out. But they also want it to be done in compliance with laws that are meant to protect endangered species and what-not.
Ellen Gilmer tracks environmental policy and courtroom drama for Bloomberg News.
The decision by U.S. District Court judge to shut down the Dakota Access pipeline was a big win for the Standing Rock Sioux tribe of North Dakota. Tribal members were the catalysts of a prolonged protest against the pipeline, and it fought for years to have it stopped.
Nick Tilsen is President and CEO of NDN Collective, an Indigenous rights and social justice organization based in South Dakota. Tilsen is a member of the Oglala Lakota Nation.
Reid Frazier: Could you first just give me a sense of what it felt like when you first heard about this decision that the pipeline had to be stopped and drained of oil?
Nick Tilsen: My first reaction was pretty emotional, to be honest. So many of us put our blood, sweat and tears and sacrifice the resistance against the Dakota Access pipeline. A lot of us walked away from that with some deep wounds and knowing that we were on the right side of history.
DAPL just represented the latest version of colonialism and imperialism towards Indigenous people and the disrespect for Mother Earth. When I heard this news, it was an immediate feeling of healing in some ways.
At the same time, anytime we ever hear as Indigenous people anything from any court ever, it’s always a caution because it feels like several times throughout this fight, we have had “good court decisions.” We don’t really trust the court systems. I mean, the fact that a federal judge has ordered the pipeline to drain the oil and that the company has refused and oil is still now flowing in the pipeline.
We feel like the court systems tends to favor corporations over people, definitely when it comes to its relationship with Indigenous people. So we are cautiously optimistic.
RF: So let’s talk a little bit about the issues surrounding the pipeline. Refresh our memories, why were the protestors at Standing Rock opposed to this pipeline? As the proponents of the pipeline argued, and continue to argue, none of it crossed their reservation. So why were they so opposed?
NT: You know, the Missouri River is one of the biggest waterways in drinking water. It provides drinking water to 18 million Americans. It provides water and life to so many tribes. So to us, these arbitrary borders — the fact that the reservation ends right here, you know, and then they build a pipeline just north of it.
The reason why people are so against it is because it was crossing the river just north of the reservation. Originally the pipeline was going to be crossing north of the town of Bismarck. But the white folks were against it. They didn’t want the pipeline crossing their town. So then they moved it to north of the reservation. Then throughout the whole area, there are burial grounds and sacred sites — many of those sites that are supposed to be protected, even though they’re off the reservation.
In our language, we say Mni Wiconi which means ‘water is life.’ It’s kind of become like a hashtag now in the 21st century. But actually, it’s a very simple thing. Our entire bodies are made up of water and society lives off of water. So this became a huge battle about the importance of protecting our natural resources. As Indigenous people, we have fought for so long to protect our natural resources because we know that they’re fundamentally important and directly connected to our survival as a people.
So to us, it doesn’t make sense to put a pipeline underneath the river where 80 percent of these pipelines leak. It’s not a matter of if they’re going to leak. It’s a matter of when they’re going to leak. I think the other big threat here that’s fundamentally important is that we’re in the 21st century where we can be creating new energy solutions for this nation.
“About 75 to 80 percent of the biodiversity that’s left on the planet is left within proximity to stewardship of Indigenous people. That’s not an accident.”
This pipeline is a pipeline to pass the old energy systems that contribute to climate change, that contribute to injustice, that contribute to the exploitation of land, community and people. So this pipeline was a representation of this old system and way of doing things when we actually need to be leaning in collectively as a society to coming up with new solutions for our communities and for our people.
The issue of water and climate and land and human rights are fundamentally at the crux of some of the most important issues facing humanity today. I think that’s why DAPL issue became a global phenomenon because eventually every single community that is fighting for their survival can relate to this issue.
RF: Yeah, I want to talk about that, because in some sense the DAPL issue was a local issue. People didn’t want this thing crossing their backyard. But in another sense, it took on more of a global issue. Plenty of environmentalists from around the country came, but there seemed to be a nexus between what the Standing Rock folks were fighting for and this wave of climate activism that we’re seeing around the world. Do you see these two movements converging and how?
NT: Indigenous people have been directly impacted by climate exponentially more than other places. If you look at the Gwich’in people in the National Arctic Wildlife Refuge; if you look at where the majority of the biodiversity on the planet is — you’ve got about 75 to 80 percent of the biodiversity that’s left on the planet is left within proximity to stewardship of Indigenous people. That’s not an accident.
Biodiversity is what we need in order to combat global climate change. Indigenous people have been on the frontlines of environmental and climate issues long before there was a Greenpeace, long before there was a NRDC. Indigenous people have been there resisting these things.
I think that also Indigenous people like the Standing Rock Sioux Tribe have a unique relationship to the federal government. We’re not just another sort of racial group. We have a unique political relationship. All of a sudden, us as Indigenous people, we’re not only at risk being on the frontlines of this issue, we also are able to leverage and use our unique political relationship with the federal government to apply pressure on the company and on the process.
Obviously, we understand climate change because we see it happening in society. It’s in our prophecies. I think some people think that Indigenous folks are in the past, even our prophecies— ‘Oh, hey, that’s something mystical from a long time ago.’ Well, there are prophecies that exist that happened in the last few years about this pipeline in our ceremonies. I think the convergence of these movements is important because I think that in order for the climate movement to be successful, the climate movement has to relate to everyday people and it can’t be just science-based. It has to be human-based.
“We want to radically imagine a future of this country, in this world, that actually includes Indigenous people and doesn’t have us be in the past, but be in the present.”
And then when you look at who is pursuing the narrative behind climate change is a myth. Who’s pushing that narrative? It’s transnational corporations profiteering off of the suffering of people and contributing to climate change. It’s political leaders like Donald Trump. It’s the people who benefit from the economics of the fossil fuel industry.
If you look about how the government responded to a group of Indigenous people resisting on their own land, it’s the same way they have always responded. When Indigenous people come together, this country gets scared. We were confronted with militarization. The National Guard was called in. People from Ferguson and the Movement for Black Lives showed up at Standing Rock. I think that’s where you start to see the convergence of movements.
I think part of what’s happening is we’re in this time of social consciousness as a nation. I’m 38 years old, but many of us who are activists, organizers, change-makers in society today, we’re continuing on the work of the ancestors who came before us. We’re being able to see the fruits of that labor being generated in society today.
But the climate of the country is different. I think what it feels to us is that we’re not just against things, right? We’re not just against everything that’s happened to Indigenous people. We want to radically imagine a future of this country, in this world, that actually includes Indigenous people and doesn’t have us be in the past, but be in the present.
Nick Tilsen is President and CEO of NDN Collective, an Indigenous rights and social justice organization based in South Dakota.