This blog was written by a visiting student in December 2016, after the announcement of the Army Corps of Engineers’ decision to do an environmental review on the Dakota Access Pipeline. Since then the Corps has opened a public comment period on the environmental review, and President Trump has issued an executive order encouraging agencies to rapidly review High Priority Infrastructure Projects. This executive order seeks to “streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects”— which is consistent with the law discussed in this blog, NEPA. Recent developments in the Dakota Access case could lead to litigation, but it’s too early to tell whether the government still intends to uphold the law and its commitment to do an environmental review.
WRITTEN BY: Sam Blackburn, Former MCEA Extern
The decision of the Army Corps of Engineers not to approve an easement for the portion of the Dakota Access Pipeline passing through Standing Rock is a great victory for proponents of both native rights and environmental protection. As a result of this decision, pipeline construction will be delayed, potentially for years while the Army Corps conducts further environmental review. Though much of the credit for this achievement belonged to the protesters braving adversity, the opportunity for the Army Corps’ decision comes from the National Environmental Policy Act (NEPA). While NEPA was created to improve government transparency and increase public involvement, its process of environmental review has allowed for some of the most important environmental protection successes in recent memory.
NEPA requires that every federal agency must consider the environmental, social, and economic effects of their proposed actions. This includes impact on cultural heritage protected by the National Historic Preservation Act, particularly relevant at Standing Rock. Through the process of permitting, corporate and industrial actions (such as building an oil pipeline) become subject to environmental review. Initially, during the environmental assessment process, the Army Corps of Engineers deemed DAPL would have no significant environmental impacts. After considering the concerns raised by protesters at Standing Rock, however, the Army Corps decided that further environmental review was required. This typically leads to preparing a full Environmental Impact Statement (EIS), which is a more detailed analysis which could put off construction for years.
The outcome at Standing Rock shows just how powerful environmental review can be. NEPA mandates environmental review for any project with significant impact, and the public has the ability to bring claims of impact to be considered. To facilitate this, there are several periods of required public commentary once environmental review has started. Even after an EIS has been completed, the public can still bring a case to court arguing that certain environmental impacts haven’t been considered or are more significant than the EIS admits.
In northern Minnesota, Enbridge was concerned enough about undergoing the public scrutiny of environmental review that when it was ordered to do an EIS, it pulled the plug on the entire project. Enbridge Energy sought a first-stage permit for its pipeline without undergoing environmental review. MCEA challenged the state agency's decision that an EIS wasn't necessary in court, arguing that the law required a review before any approval, and won the case. Rather than engage in the resulting environmental review, construction of Sandpiper was abandoned.
Though the process of environmental review has enabled the recent successes by the public against the Sandpiper and Dakota Access pipelines, the fight is far from over. Enbridge has an additional project in the works for Minnesota, a replacement and extension of the Line 3 pipeline. While the initial public commentary period has concluded, and an Environmental Impact Statement is being prepared for the pipeline, there will be another opportunity for the public to get involved and speak up against Line 3 during the public comment period for the draft EIS, which will take place in 2017. Environmental review is only powerful if the public takes the opportunity to make their voice heard and so we must speak up and ensure that the harmful environmental impacts of these pipelines are not ignored.