Can the Dakota Access Pipeline be stopped?

The Dakota Access Pipeline's eventual completion was seen as a foregone conclusion by many before the company applied for a single permit.

In South Dakota, the company behind the project obtained voluntary easements from every landowner in its path, with even vocal opponents choosing to take the deals over what were considered fruitless and expensive eminent domain battles.

Now, with most of the work complete, many still see the pipeline’s operation as a matter of when, not if. But the massive groundswell of support for the anti-pipeline efforts of the Standing Rock Sioux Tribe has thrown the pipeline’s future into uncertainty.

President Barack Obama delayed granting the company’s final easement last month and said last week that a re-route around areas sensitive to the tribe’s ancestral lands is an open possibility.

Standing Rock Sioux Tribal Chairman David Archambault sees a re-route as a major victory, but many protesters have vowed to continue the fight until the $3.8 billion project is shut down completely.

Are there realistic scenarios under which that could happen?

Pipeline owner Energy Transfer Partners and its backers don’t think so — the pipeline was permitted by four states and the U.S. Army Corps of Engineers, and construction is more than 75 percent complete — but opponents are hopeful.

Here are a few of the areas opponents are focusing on as paths to a possible shutdown.

1. Standing Rock wins in court

The tribe filed a federal lawsuit against the U.S. Army Corps of Engineers over the summer, shortly after the agency signaled its intent to approve an easement for drilling under Lake Oahe.

The tribe asked for an immediate injunction on two grounds: That the Corps failed to adequately consult with the tribes to identify historically significant sites along the pipeline route, and that granting the easement would do irreparable harm to tribal history.

U.S. District Judge James Boasberg rejected both arguments on Sept. 9, saying the tribe was offered the chance to consult but refused until the process neared an end, and that there was no proof the current route would cause irreparable harm.

That doesn’t mean the case is over, though. The ruling was restricted to the tribe’s claims on alleged violations of the National Historic Preservation Act.

The underlying lawsuit also argues that the Corps’ permitting process violated the Clean Water Act, National Environmental Policy Act and the Rivers and Harbors Act. Neither of those claims have been fully litigated.

Archambault said Thursday during a Facebook Live stream that while he feels “the deck is stacked” against indigenous people, the tribe intends to continue battling construction in court.

“If there is an easement granted, we will sue,” Archambault said. “If their easement is not granted, of course they’ll sue.”

2. The federal government delays or stops the project

President Obama’s announcement that a re-route of the pipeline is on the table points to another avenue for opponents.

The statement this week wasn’t the first time the Obama Administration has pushed back against Dakota Access.

Immediately following Boasberg’s ruling in September, the Departments of Justice, Department of the Army and Department of Interior issued a joint statement ruling that said the Army would not authorize construction beneath Lake Oahe – a moved fiercely criticized by pipeline supporters.

Delays and re-routes add financial strain to pipeline projects and create more openings for opposition, according to Jane Fleming Kleeb of Bold Nebraska.

Kleeb’s group helped push for a re-route of the Keystone XL pipeline around Nebraska’s Sandhills and the Oglala Aquifer in 2011. That forced that pipeline’s owner, TransCanada, to further study environmental impacts, impacts on natural resources and to negotiate with more landowners, Kleeb said.

“Whenever a re-route happens, it re-opens all those discussions,” she said.

The continued delays of Keystone XL forced a review hearing at the South Dakota Public Utilities Commission in 2015. Ultimately, President Barack Obama chose to deny a permit for KeystoneXL, a decision TransCanada has sued over.

Energy Transfer Partners told the Associated Press earlier this week that it was unaware of any plans for a new route in North Dakota and that it remains “confident we will receive our easement in a timely fashion.”

Even if the easement is released, however, it would be subject to Congressional review, and Kleeb sees the potential for elected officials like Sen. Bernie Sanders of Vermont - an avowed opponent of the pipeline - to call for more delays.

Josh Nelson, policy director for the progressive protest group CREDO Action, hopes to see President Obama or the next President shutter Dakota Access altogether.

More than 378,000 people have signed a petition asking the White House to take executive action and shut down construction of Dakota Access permanently.

“The only resolution that we’re going to accept is shutting it down entirely,” Nelson said.

3. Re-routes or delays could endanger the project’s financial feasibility

Delays alone could do major financial damage to Energy Transfer Partners. The company indicated as much in its court filings in the Standing Rock lawsuit.

Dakota Access Vice President Joey Mahmoud wrote in an Aug. 18 declaration to the court that the company had committed to completing the pipeline by Jan. 1, 2017.

“The long-term transportation contracts give shippers a right to terminate their commitments if (Dakota Access Pipeline) is not in full service per the contract deadline,” Mahmoud wrote.

A delay in the start of operations would cost about $913 million, Mahmoud wrote, rising to over $1 billion by 2018. Stopping work would cause “grave and irreparable impacts to DAPL, its workers, the landowners, economy, both the state and federal government, and the environment.”

Opponents now speculate that financial harm from protest-related delays alone could be enough to stop the pipeline’s completion.

“It’s pretty clear they’re not going to have oil flowing on Jan. 1,” said Lorne Stockman, Research Director of the non-profit outfit Oil Change International. “It’s going to happen - they’re going to have to renegotiate those contracts.”

When the project was announced in 2014, the price of oil was between $70 and $80 a barrel. The long-term contracts common in the pipeline industry might be more difficult to lock in with oil at $45 a barrel, Stockman said.

The embrace of natural gas and the ramp-up of U.S. energy production have played into the extended price slump, and there’s concern about long-term lows. On Tuesday, Royal Dutch Shell Chief Financial Officer Simon Henry said the world will hit peak oil demand within five to 15 years.

“The world in which they would renegotiate those contracts is not the world in which they negotiated the original contracts,” Stockman said.

Company spokeswoman Vicki Granado said on Friday, however, that the January date would not affect shipping volumes or the project as a whole.

“There is no Jan. 1 deadline,” Granado wrote in an email.

4. Iowa landowners win in court

Most of the attention focused on Dakota Access is aimed at the protest camps in North Dakota, where thousands have visited and hundreds have been arrested in clashes with law enforcement.

But there’s another front line in opponents’ battle against the pipeline: The corn fields and courtrooms of Iowa.

There have been protests and arrests across Iowa, as well, said former state lawmaker and radio host Ed Fallon, who opposes the pipeline.

“We’ve had more people arrested in Iowa over this than we’ve ever seen, even going back to the Vietnam War,” Fallon said.

An eminent domain law Fallon championed in 2006 is now being used by pipeline opponents in hopes of booting Dakota Access from the state. The law says eminent domain can only be used to take property for defined public purposes.

Water, electricity, and natural gas delivery are explicitly included in the statute. Crude oil is not.

Des Moines lawyer Bill Hanigan represents 14 landowners in a half dozen Iowa counties where land was taken for pipeline construction through eminent domain.

Hanigan’s clients argue that both Iowa law and the U.S. Constitution bar the use of eminent domain to condemn property for a crude oil project.

“Crude oil has no value unless it’s refined. It’s a raw material,” Hanigan said. “We need lumber to build homes, so would we condemn farms to build someone a private highway to haul lumber?”

Hanigan believes the already-built pipeline beneath his clients’ property and every barrel of oil that flows through it are trespassing.

Next month, Hanigan and lawyers for Dakota Access will appear before a judge. The losing side of the judge’s subsequent opinion will likely appeal to the Iowa Supreme Court, he said.

Hanigan believes the Iowa case has the potential to shut down the project, but he doesn’t think either side has a clear path to victory — in Iowa or anywhere else.

“It ain’t over,” Hanigan said. “It’s still a big shooting match.”

 


JOIN THE CONVERSATION

To find out more about Facebook commenting please read the
Conversation Guidelines and FAQs

Leave a Comment
More Stories