Seeing the Elephant: DAPL is Not Dead

Photo by Rob Wilson

Celebratory drumming and singing rang out from Standing Rock Water Protector camps when the Army Corps of Engineers denied Energy Transfer Partnership the easement to drill under the Missouri River just 2,400 feet from the Standing Rock Sioux Reservation, stalling the Dakota Access Pipeline. Crying people exclaimed, “It’s over.” Joyful expression is warranted, it is a major triumph against the pipeline but the tearful heart-songs are wrong, the fight is not over.

The internet exploded in celebratory headlines, articles, and social media posts minutes after the pipeline announcement by Jo-Ellen Darcy, the Army's Assistant Secretary for Civil Works.

The New York Times chimed in with, “Army Blocks Drilling of Dakota Access Oil Pipeline.”

CNN’s Facebook page rejoiced, “BREAKING NEWS: A true victory for protestors, construction of Dakota Access Pipeline to be re-routed http://cnn.it/2gRaQGl”

Bipartisanreport.com went even further, “BREAKING: Dakota Access Pipeline IS DEAD, U.S. Government Says NO WAY (DETAILS)”

The big problem is – it’s not even close to true.

Stopping the easement for an environmental impact statement is a lawful way to stall the development of the pipeline – maybe even for years. An environmental impact statement is a document requiring a developer to consider the full spectrum of environmental impacts to the entire ecological system; including animals, plants, air, water, soil, and people. It requires meaningful input from the Standing Rock Sioux tribe for the current route. It can be appealed and revised in full or in part through layers of legal processes which can tie the company in red tape for years. It is an effective strategy to use, but not in this case.

The likelihood an environmental impact statement will ever happen for the Dakota Access Pipeline is basically none.

Energy Transfer Partnership admitted in court documents that it is under contract to have the Dakota Access Pipeline (DAPL) finished by January 1, 2017. The contracts, with their buyers, assure Energy Transfer Partnership 2014 prices. If the pipeline is not finished in time, the buyers have the right to renegotiate the price of the crude.

The average 2014 WTI Crude Oil prices were $93.17 per barrel, and the projected 2017 price is $49.91 per barrel, according to the United States U.S. Energy Information Administration Short-Term Energy Outlook of November 8, 2016. The most conservative estimate is DAPL will move approximately 470,000 barrels per day, according to Energy Transfer Partners.

That is a $20,332,200 loss per day. In a year Energy Transfer Partners risks losing $7,421,253,000.

The entire project is expected to cost Energy Transfer Partners $3.8 billion. Should the project die, that entire investment is lost with no recovery.

Energy Transfer Partners does not have time to wait, they have to act now.

Litigation is the first option. Energy Transfer Partners could file for an emergency injunction or remedy against the Army. Smart lawyers will have prepared these filings ahead of time. Energy Transfer Partners could probably get a quick hearing but the process would take weeks, even for the best lawyers.

Even if Energy Transfer Partners succeed in court, the Army could appeal with the tribe’s lawyers acting in support. Unless the court kept the order to not dig in place during the appeal, DAPL’s dig would proceed during the appeal.

Using legal means, mid-December is earliest reasonable estimation Energy Transfer Partners could start digging lawfully. Even if Energy Transfer Partners successfully takes legal action, and digs within the agreed upon methods and times, it would be cutting it close to get the drill across the river and the pipe laid in time.

Another choice is to drill illegally. Assuming any fine is less than a couple of years’ worth of losses of the higher prices of defaulting on the contract, it would be worth drilling illegally.

And they could probably get away with it.

The FAA grounded all non-law enforcement aircraft on November 28, including drones. Drones are one of the ways the Water Protectors, people who have mounted months long resistance efforts, monitor the progress of the pipeline, track the progress of the pipeline and monitor police behavior. Drone operators risk revocation of their drone pilot’s license and hefty fines if they fly over the pipeline.

Even though the FAA has no legal right to determine the legitimacy of any news outlet or journalist, the FAA has said they will pre-approve some journalists to fly over. According to the FAA, no journalists have met the criteria.

The distance between the Water Protectors and DAPL’s work-site is less than 3,000 feet. However, there are guarded barricades, hundreds of police, the National Guard, a walled fortress and dozens of lights. DAPL security has used attack dogs to bite Water Protectors, including pregnant women and a child, when they entered DAPL secured areas.

On November 20, Water Protectors, the group of people led by the Standing Rock Sioux, who have built encampments to resist the development of the pipeline, attempted to move one of the police barricades so that ambulances could pass to the camp without the added delay created by the barricade. It was 23 degrees outside. Police used tear gas, water hoses, rubber bullets, concussion grenades, bean bags, and pepper spray. One person went into cardiac arrest, a woman’s arm was nearly blown off, and a woman lost vision in one eye. In total 26 people were hospitalized and 300 were injured. The most common injury was hypothermia.

On November 25, the Army Corps of Engineers ordered an eviction of the largest Water Protector Camp, Oceti Sakowin, with threats of trespass charges for anyone who stays after December 5. On November 28, the North Dakota Governor issued an order stating that all persons must leave immediately or face trespass charges. The tandem orders make simply being at the camp a crime, leaving Water Protectors in an even more tenuous, and dangerous position.

On October 27 the Sacred Ground Camp was raided by hundreds of police, armored vehicles, police atvs, helicopters, and planes because the police classified the camp as a trespass camp. Over 140 people were arrested. Police used pepper spray, rubber bullets, tasers, bean bags, tear gas, concussion grenades, batons, and helicopters against Water Protectors.

On November 2, Water Protectors attempted to reconsecrate ground which they believed had been desecrated by police and DAPL. They attempted to cross onto Turtle Island, a small island behind the largest Water Protector camp, Oceti Sakowin. When they were mired in the river in silt up to their knees, police came down the hill and pepper sprayed them for hours. This was just a day after the Army Corps of Engineers labeled anyone entering that area trespassers and asked Morton County Sheriff to enforce trespass laws on that property.

The incentive to perform an illegal drill is high, the risk of being caught is low, the consequences are negligible, and anyone trying to stop them risks death, financial consequence, and risk their professional advancement.

The upcoming administration change adds to the incentive to drill illegally.

President-Elect Trump has personally invested up to a million dollars in the pipeline. According to disclosure papers, his investment directly in Energy Transfer Partners has been sold off but as of last May, he had invested at least $100,000 in Phillips 66 Corporation, a one quarter owner of the pipeline.

Kelcy Warren, the chief executive officer of Energy Transfer Partners has invested heavily in Trump as well. According to Reuters and the Guardian, during the general election Kelcy donated the maximum individual donation allowed $2,700 and donated $100,000 to a Trump Victory Fund, a fundraising committee for the Trump Campaign, a collaborative fundraising ~~fun~~ of different Republican groups. Since the primary election, he has given $66,800 to the Republican National Committee. In the primary election he gave $300 to the Trump campaign. According to the Center for Responsive Politics, Warren gave $1,530,000 to Republican efforts during the 2016 elections.

After Trump’s election, Warren believed DAPL was on better footing. He said, “My God, this [a Trump administration] is going to be refreshing, so I think, overall, I’m very, very enthusiastic about what’s going to happen with our country,” ~~said Warren.~~

Warren’s excitement didn’t stop there. He also said, “I believe January 20th or shortly thereafter we will have an easement.”

Warren’s glee is not just wishful thinking.

In a memo from Trump to congressional staff and supporters, Trump made clear he was going to clear the way for pipelines.

According to the AP who obtained the memo, the memo reads, "[Trump] intends to cut the bureaucratic red tape put in place by the Obama administration that has prevented our country from diversifying our energy portfolio."

Republican Senator John Hoven from North Dakota said he met with the Trump transition team and discussed the pipeline.

In a statement about the meeting Hoven wrote, "Today, Mr. Trump expressed his support for the Dakota Access Pipeline, which has met or exceeded all environmental standards set forth by four states and the Army Corps of Engineers.”

Energy Transfer Partners is so confident they are moving forward no matter what the Army Corps of Engineers says, they issued a defiant public statement after the easement was denied.

“As stated all along, ETP and SXL are fully committed to ensuring that this vital project is brought to completion and fully expect to complete construction of the pipeline without any additional rerouting in and around Lake Oahe. Nothing this Administration has done today changes that in any way.”

Any illegal activity will not be investigated exclusively by the Obama Administration. It will eventually be handed off to the Trump administration. Trump’s support for DAPL has been clear and it seems improbable that Trump’s administration will bring any charges against Energy Transfer Partners for doing anything they would have allowed them to do legally 23 days later.

The last option for Energy Transfer Partners is to wait for the Trump administration. It may be able to negotiate a delay or diminished drop in the crude oil price if the delay is only a few days. This is a big risk for the company to take.

For Trump to act to approve DAPL, he would be acting against the Army and the Army’s legal duty to the Missouri River under Pick-Sloan. Pick-Sloan was a piece of legislation which created a series of dams, levees, and floodplains along the Missouri River. It gives The Army Corps of Engineers the stewardship authority for things like infrastructure under the Missouri River.

For Trump to take action in favor of DAPL, he would have to counteract Pick-Sloan and the act directly against the Army. This may be in Trump’s character, but it is not a certainty.

With little expedient lawful recourse, Energy Transfer Partners are forced to consider the illegal. Once they choose a course of illegal behavior, the only way to protect themselves is with violence in order to stop anyone who resists them. Either violence by the police or violence by contractors.

Denying the easement under the Missouri River was a huge shift toward the Water Protectors’ goal of stopping the pipeline but it is not the end. Energy Transfer Partners has to start playing hardball.

Thinking this conflict is over is a mistake. Should the camps pack up and go home, the pipeline will go through as the cars roll away.

Army Corps Statement Denying Easement: https://www.army.mil/article/179095/army_will_not_grant_easement_for_dakota_access_pipeline_crossing

the United States U.S. Energy Information Administration Short-Term Energy Outlook of November 8, 2016: http://www.eia.gov/outlooks/steo/report/prices.cfm

FAA No Fly Order: http://jdasolutions.aero/blog/faa-standing-rock/

DAPL website about number of barrels: http://www.daplpipelinefacts.com/