UPDATE ON NOVEMBER 13, 2024: We are still waiting for Step 3 on the graphic below. Once the “preferred alternative” is chosen, the Biden Administration must wait 30 days to finalize the Record of Decision. The clock is ticking.
Now the original post:
***
Here’s a summary of the DAPL legal situation and where we are today.
Quick summary: 1) The pipeline is running and has been since 2017. 2) It has still not been officially approved under the law – and it could be shut down. And right now is the official public comment period.
The Past
Recall the evening of December 4, 2016, when the Standing Rock water protectors celebrated with fireworks. Why? The Army Corps announced they would not allow the pipeline to go under Lake Oahe. In official legal terms, they announced they would not grant an easement for the pipeline to go under the lake without a full Environmental Impact Statement (EIS). That’s a big study that takes many years, expert review, and two public comment periods. It’s the legal battleground on which environmental battles are fought. I explained it in this post: Standing Rock: Understanding the EIS process.
Back in January 2017, six weeks after the fireworks and two days before Trump took office, the Obama Administration officially started the EIS process by issuing a Notice of Intent to start the EIS. That’s Step 1 of four steps.
Then, four days after taking office, Trump issued an Executive Order putting a stop to the EIS – actually, ordering the Army Corps to grant the easement to complete the pipeline.
That set off a race in early 2017 between environmental lawyers and DAPL construction workers. They got the pipeline up and running on June 1, 2017.
Two weeks later, on June 14, 2017, a judge ruled, nope, that easement is not sufficient without a full EIS. But… the pipeline can stay up and running in the meantime.
Pretty much all the Trump years were taken up with appeals and various rulings, the result being much the same: the pipeline needs an EIS, but it can stay operating in the meantime.
The Present
So that brings us to today, six years on. We’ve moved to Step 2 and the Army Corps, who is the federal agency overseeing this project, has released the Draft EIS. The Army Corps webpage for the DAPL project is here. The EIS itself is a huge report – with many appendices – about the potential impacts of the pipeline. It can be found at this website.
Draft EIS’s always list a few “alternatives.” Typically, after public comment, they will release a Final EIS that selects one of the alternatives.
Taken from Section 2.0 of the Draft EIS (page 2-2), here are the alternatives:
Alternative 1: Cancel the pipeline and order federal lands to be restored to pre-pipeline conditions, including removing the pipeline.
Alternative 2: Cancel the pipeline but allow it to stay in place.
Alternative 3: Allow DAPL to keep operating as is.
Alternative 4: Allow DAPL to keep operating but with “additional conditions.”
Alternative 5: Force DAPL to relocate to the “North Bismarck Alternative” – the route DAPL secretly rejected before relocating it Standing Rock.
Usually, when putting out a Draft EIS, they list a “preferred alternative,” which is often the one they end up choosing. Significantly, in this case they have not selected a preferred alternative. This is unusual and no doubt a decision made at the highest level, probably by President Biden himself. This preserves the Army Corps – and the Biden Administration’s – ability to evaluate the political winds and make a decision at the last minute, and after considering public comments.
The original route is the upper dashed line. But the people of Bismarck complained so they moved DAPL to to the rez.
Alternative 5 is delightfully snarky, pointing out how white privilege forced the company to pivot to tribal lands without even a public meeting. But I suspect the Biden Administration is leaning toward Alternative 4, though it is clear that Alternatives 1 or 2 are possible, given the lack of a preferred alternative. The governor of North Dakota has already pointed this out.
A lot has changed since DAPL started. Oil production in North Dakota has fallen 300,000 barrels per day (bpd). Because DAPL is currently moving about 600,000 bpd, with continued declines, it wouldn’t even be missed.
Even before the pandemic, parts of the North Dakota oil industry were moving toward alternative energy. In 2019, even before the pandemic, the Dickinson Oil Refinery stopped taking Bakken oil and was retrofitted to take corn and soybean oil to make renewable diesel for the California market. This petro-free fuel, molecularly identical to conventional diesel, is taking over the market in many places. I write about it here. Point being: the world has changed in the last few years. The world is pivoting away from fossil fuels, even in North Dakota.
How to Comment
Public comments can focus on any concerns regarding any of the alternatives, or simply voice a preference for an alternative.
Instructions are at the Army Corps website and here:
Comments on the DAPL Draft Environmental Impact Statement can be mailed to:
Attn: Brent Cossette U.S. Army Corps of Engineers CENWO-ODT-N 1616 Capitol Avenue Omaha, NE 68102
Stephen Carr Hampton is an enrolled citizen of Cherokee Nation, an avid birder since age 7, and a former resource economist for the California Department of Fish & Game, where he worked as a tribal liaison and conducted natural resource damage assessments and oversaw environmental restoration projects after oil spills. He writes most often about Native history and contemporary issues, birds, and climate change.
Memories of the People 
Standing Rock and DAPL in 2023: The EIS process and the public’s second chance
UPDATE ON NOVEMBER 13, 2024: We are still waiting for Step 3 on the graphic below. Once the “preferred alternative” is chosen, the Biden Administration must wait 30 days to finalize the Record of Decision. The clock is ticking.
Now the original post:
***
Here’s a summary of the DAPL legal situation and where we are today.
Quick summary: 1) The pipeline is running and has been since 2017. 2) It has still not been officially approved under the law – and it could be shut down. And right now is the official public comment period.
The Past
Recall the evening of December 4, 2016, when the Standing Rock water protectors celebrated with fireworks. Why? The Army Corps announced they would not allow the pipeline to go under Lake Oahe. In official legal terms, they announced they would not grant an easement for the pipeline to go under the lake without a full Environmental Impact Statement (EIS). That’s a big study that takes many years, expert review, and two public comment periods. It’s the legal battleground on which environmental battles are fought. I explained it in this post: Standing Rock: Understanding the EIS process.
Back in January 2017, six weeks after the fireworks and two days before Trump took office, the Obama Administration officially started the EIS process by issuing a Notice of Intent to start the EIS. That’s Step 1 of four steps.
Then, four days after taking office, Trump issued an Executive Order putting a stop to the EIS – actually, ordering the Army Corps to grant the easement to complete the pipeline.
That set off a race in early 2017 between environmental lawyers and DAPL construction workers. They got the pipeline up and running on June 1, 2017.
Two weeks later, on June 14, 2017, a judge ruled, nope, that easement is not sufficient without a full EIS. But… the pipeline can stay up and running in the meantime.
Pretty much all the Trump years were taken up with appeals and various rulings, the result being much the same: the pipeline needs an EIS, but it can stay operating in the meantime.
The Present
So that brings us to today, six years on. We’ve moved to Step 2 and the Army Corps, who is the federal agency overseeing this project, has released the Draft EIS. The Army Corps webpage for the DAPL project is here. The EIS itself is a huge report – with many appendices – about the potential impacts of the pipeline. It can be found at this website.
Draft EIS’s always list a few “alternatives.” Typically, after public comment, they will release a Final EIS that selects one of the alternatives.
Taken from Section 2.0 of the Draft EIS (page 2-2), here are the alternatives:
Alternative 1: Cancel the pipeline and order federal lands to be restored to pre-pipeline conditions, including removing the pipeline.
Alternative 2: Cancel the pipeline but allow it to stay in place.
Alternative 3: Allow DAPL to keep operating as is.
Alternative 4: Allow DAPL to keep operating but with “additional conditions.”
Alternative 5: Force DAPL to relocate to the “North Bismarck Alternative” – the route DAPL secretly rejected before relocating it Standing Rock.
Usually, when putting out a Draft EIS, they list a “preferred alternative,” which is often the one they end up choosing. Significantly, in this case they have not selected a preferred alternative. This is unusual and no doubt a decision made at the highest level, probably by President Biden himself. This preserves the Army Corps – and the Biden Administration’s – ability to evaluate the political winds and make a decision at the last minute, and after considering public comments.
Alternative 5 is delightfully snarky, pointing out how white privilege forced the company to pivot to tribal lands without even a public meeting. But I suspect the Biden Administration is leaning toward Alternative 4, though it is clear that Alternatives 1 or 2 are possible, given the lack of a preferred alternative. The governor of North Dakota has already pointed this out.
The Standing Rock Sioux Tribe has been openly critical of the Army Corp’s consultation process and other aspects of the Draft EIS. You can read their open letter here. Though this comes from a few months ago, I believe most or all of these concerns remain. You can check out Standing Rock Sioux Tribe’s webpage about DAPL here.
A lot has changed since DAPL started. Oil production in North Dakota has fallen 300,000 barrels per day (bpd). Because DAPL is currently moving about 600,000 bpd, with continued declines, it wouldn’t even be missed.
Even before the pandemic, parts of the North Dakota oil industry were moving toward alternative energy. In 2019, even before the pandemic, the Dickinson Oil Refinery stopped taking Bakken oil and was retrofitted to take corn and soybean oil to make renewable diesel for the California market. This petro-free fuel, molecularly identical to conventional diesel, is taking over the market in many places. I write about it here. Point being: the world has changed in the last few years. The world is pivoting away from fossil fuels, even in North Dakota.
How to Comment
Public comments can focus on any concerns regarding any of the alternatives, or simply voice a preference for an alternative.
Instructions are at the Army Corps website and here:
Comments on the DAPL Draft Environmental Impact Statement can be mailed to:
Attn: Brent Cossette
U.S. Army Corps of Engineers
CENWO-ODT-N
1616 Capitol Avenue
Omaha, NE 68102
Comments can also be emailed to NWO-DAPL-EIS@usace.army.mil.
Comments on the Draft Environmental Impact Statement must be received no later than November 13, 2023.
For all of my previous posts about Standing Rock and DAPL, go here.
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About Stephen Carr Hampton
Stephen Carr Hampton is an enrolled citizen of Cherokee Nation, an avid birder since age 7, and a former resource economist for the California Department of Fish & Game, where he worked as a tribal liaison and conducted natural resource damage assessments and oversaw environmental restoration projects after oil spills. He writes most often about Native history and contemporary issues, birds, and climate change.