Oil keeps flowing as Corps misses deadline for DAPL environmental study
Opponents of the Dakota Access Pipeline march outside the White House, March 10, 2017. | Jose Luis Magana / AP

The U.S. Army Corps of Engineers, which has been under a court order from that rogue jurist, U.S. District Court Judge James Boasberg, to issue a new environmental analysis of the Dakota Access Pipeline on or before April 2 has missed its deadline. In a far-fetched story announcing beforehand that the analysis would not be completed on time, the Trump administration blamed the tribes involved in the case for the holdup. In typical blame-the-victim style, the Corps claimed the tribes have not provided information needed to complete the review.

The Corps told Boasberg last October it would comply with the court order by completing the mandated review by April 2, but then last week advised him that the deadline would be missed “as a result of difficulties in obtaining requested information from the plaintiff tribes in a timely manner.”

The tribes involved, the Standing Rock Sioux and the Cheyenne River Sioux, have charged that the Corps has failed to engage in “meaningful” government-to government consultation with them. In fact, Cheyenne River alerted the judge of the inadequate consultation more than a month ago. Standing Rock voiced similar warnings to the court earlier this month, asserting the tribe was being “stonewalled” by the Corps.

Ominously, Justice Department Attorney Reuben Schifman has not given a new date for the review, still advising that it depended on cooperation from the tribes. The stage is being set for an indefinite stall while the oil flows ad infinitum.

The delay of course won’t affect what critics call the $3.8 billion “genocidal pipeline,” which started pumping oil last June, moving North Dakota crude through several states to a shipping plant in Illinois before reaching the Gulf Coast for export. Moreover, this delay is a huge windfall for Energy Transfer Partners (ETP), the corporate owners of DAPL, as it will continue to rake in millions, if not billions, of dollars from the operation of the pipeline in the meantime.

Last summer, after the oil stated flowing, Judge Boasberg, known by many as “Judge DAPL,” ordered the Corps to conduct a “modified supplemental environmental assessment” of the pipeline’s impact on tribal interests, with emphasis on how a spill under the Lake Oahe Reservoir on the Missouri River would affect the water supply of the Standing Rock Sioux and Cheyenne River Sioux nations. These two sovereignties are the standard bearers of the lawsuit filed in July 2016.

This matter involves the epic struggle of the Standing Rock Sioux to stop the DAPL from crossing their tribal land and fouling their sacred water. In June 2017, Boasberg issued a ruling that the initial approval of DAPL by the Corps failed to consider the environmental consequences and tribal rights and treaties. At the time, it almost seemed as if this procrastinating judge was on the right track. But again, oil had already begun to flow through the pipeline by early June, before this ruling. Many concluded that Boasberg waited for the oil to start flowing before issuing the ruling, thus making continued operation a fait accompli.

He found inadequate certain parts of the initial study relating to “impacts of a spill on hunting rights, fishing rights, and environmental justice” and ordered a supplemental environmental analysis to address those concerns that was to be completed by April 2, 2018. The court ruled that the Corps had not adequately complied with environmental review laws before issuing permits to cross the Missouri River. The Corps was ordered to conduct a new analysis of issues that had been found by the court to be insufficiently studied, in what is termed a “remand” process.

Normally, standard procedure in environmental law is that the flow of oil would be stopped by the court pending the additional environmental analysis. The flow of oil would be enjoined by the court.

At a status hearing on June 21, Boasberg ordered the attorneys, under a convoluted and byzantine schedule, to submit new arguments over a two-month timeline to further address the issue of whether the pipeline should remain operational pending the completion of the new environmental review.

After the two-month hiatus with the submission of new arguments, it was expected that the phlegmatic judge would reach a decision sometime in September. But September came and went with still no decision. Boasberg gained a reputation for foot-dragging in this case, and on October 11, he issued another ruling, agreeing with ETP that the pipeline should remain operational pending the completion of the new environmental analysis.

Boasberg had done it again. He had turned the system upside down by allowing the oil to flow pending issuance of the supplementary environmental report. At that time in October, the Corps told Boasberg it would finish the mandated work by April 2.

April 2 has now come and gone, with no completed review. Meanwhile, oil continues to flow, money continues to be made hand over fist by the corporate magnates of big oil, and the genocide continues to rake in casualties.


Albert Bender
Albert Bender

Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war He is a consulting attorney on Indigenous sovereignty, land restoration, and Indian Child Welfare Act (ICWA) issues and a former staff attorney with Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Okla.