Challenges to Dakota Access Pipeline are shifting into new shapes, new fronts

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President Donald J. Trump says the Dakota Access Pipeline is not even controversial. Yet the challenges to that project are taking new form. (Photo via YouTube)

 

Could there be a day, one day, without oil?

Mark Trahant / Trahant Reports

The Trump administration has been in office for less than a month — and already the construction of the Dakota Access Pipeline is again proceeding. Company officials say oil will be flowing by June.

Yes, there is a flurry of activity around the Dakota Access Pipeline, a project that has cost more than $3.8 billion to transfer oil from North Dakota to markets in Illinois and beyond.

But every action to build the pipeline is met with many more reactions to stop it. The fight about this pipeline — and the broader issues it represents — is far from over.

Of course some days it does not seem that way. The U.S. Army Corps of Engineers approved the final easement for the pipeline to cross under the Missouri River and complete the project. The Corps also withdrew its ongoing environmental review, citing President Donald J. Trump’s executive memorandum. But that begs a huge question for the courts: Can a president do that? Is an order from the president (along with previous environmental findings from the Corps) enough to satisfy the law? That question will be sorted out by the courts.

But there are many other challenges to the pipeline.

A press release from the Standing Rock Sioux Tribe said if the construction is successful “the tribe will seek to shut the pipeline operations down.” The tribe has also called for a march next month in the nation’s capital.

“Our fight is no longer at the North Dakota site itself,” said tribal chairman Dave Archambault II. “Our fight is with Congress and the Trump administration. Meet us in Washington on March 10.”

In addition there remain water protectors near the construction site itself (as well as a massive cleanup of where people were camping in flood-prone areas).

What’s clear about the “what’s next?” is that the battle against the Dakota Access Pipeline is taking a very different form. And it’s also a new start because there will be many more actions as the administration and oil-related companies move to restart the Keystone XL pipeline, or in Canada, the Kinder Morgan pipeline.

Then President Trump lives in a world where none of this is a big deal. “I don’t even think it was controversial,” he said. “I haven’t had one call.”

Then the White House wasn’t taking calls. So the Center for Investigative Reporting and its Reveal News has created a new phone number to solicit voice mails from the public about what they would tell the president. It’s 510-545-2640. This is your opportunity to sound off.

Another challenge is financial. Many individuals, tribes, cities, and companies are pulling their money from the banks who finance the Dakota Access Pipeline. But that’s really just the beginning of the actions ahead. Rebecca Adamson, founder of First Peoples Worldwide, points out to investors how much capital is lost by companies that operate without consent from the community involved. A cost she has pegged at somewhere between $20 million to $30 million a week when there are operational disruptions. “The time it takes to bring oil and gas projects on-line has doubled over the course of the past decade due to community opposition, creating significant financial loss,” Adamson writes. More investors are learning about that financial risk and even more need to understand  what’s at stake.

“The movement to stop the Dakota Access Pipeline (DAPL) is wreaking financial havoc on the companies and banks involved,” Adamson writes. “In August 2016, Energy Transfer Partners reported ‘it could lose $1.4 billion in a year if delays continue … Even a temporary delay would mean loses of over $430 million.’ ETP is attempting to raise new debt. This could mean that the banks are ramping up pressure on the company to repay their loans out of concern DAPL will never be finished. In November 2016, Energy Transfer Partners announced a merger with sister company Sunoco Logistics in order to raise much needed cash to finish construction. Energy Transfer Partners’ own shareholders are filing a lawsuit to block the merger, alleging conflicts of interest.”

Like I said: The financial challenges are just beginning.

I also have a big idea I want to toss out. One that could have significant financial implications. So we know the project will take some 30 days to complete. And about three weeks to actually transfer oil from North Dakota to the end of the pipeline. (Updated: Company officials told the U.S. District Court that oil could begin flowing in less than four weeks.)

What if on that day, the day the oil reaches markets, there is a Day Without Oil. One day. It take a massive organizational effort. But why not? What if every ally of Standing Rock, every community that has its own Standing Rock, every one who is concerned about water, takes a day off from oil? Either walk every where that day — or just stay home. Do what it takes to remind the companies, and the government itself, who’s really in charge of the economy.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

Reposting or reprinting this column? Please credit: Mark Trahant / TrahantReports.com

 

The president’s logic on the Dakota Access Pipeline: Because I said so.

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Announcement of order by Acting Army Secretary was posted on the web site of North Dakota Sen. John Hoeven on Jan. 31. (Screenshot of Senator’s home page.)

Tribe says Corps does not have authority to stop environmental review

 

**Updated Feb. 8, 2017

Mark Trahant / Trahant Reports

Cognitive scientist George Lakoff once described the process for Republican thinking. It’s a set of assumptions built on the idea of a strict father.

He wrote in his classic book, Don’t Think of an Elephant, “The strict father model begins with a set of assumptions: The world is a dangerous place, and always will be, because there is evil out there in the world. The world is also difficult because it is competitive. There will always be winners and losers. There is an absolute right and an absolute wrong. Children are born bad, in the sense that they just want to do what feels good, not what is right. Therefore they have to be made good.”

Donald J. Trump is the strict father who runs his family — and in this case, the United States — on the model that all he needs to say to defend any action is “because I said so.” The president’s executive memorandum on Standing Rock is exhibit one.

“Today, the Acting Secretary of the Army Robert Speer informed us that he has directed the Army Corps of Engineers to proceed with the easement needed to complete the Dakota Access Pipeline,” North Dakota Sen. John Hoeven said in a news release. “This will enable the company to complete the project, which can and will be built with the necessary safety features to protect the Standing Rock Sioux Tribe and others downstream. Building new energy infrastructure with the latest safeguards and technology is the safest and most environmentally sound way to move energy from where it is produced to where people need it.”

Just like that. The Corps is supposed to walk away from a process already underway, the Environmental Impact Statement and the public comment period that is open until Feb. 20, 2017. (The Army has since announced that it is withdrawing its environmental review and approving the easement immediately.)

This is now a test of the federal courts. Will that institution follow the order of the acting secretary, and the president, or will it insist on the conclusion of the environmental review that’s underway.

First: It’s interesting that th announcement came from a U.S. Senator and not the agency itself.

The Federal Register, the rule book for government, published a plan for the review process on Jan. 18. Yes, there is a new administration, but that does not (or should not) change the rules. The notice, unlike the president’s memorandum, cites the statutory authority for moving forward. This is more than you want to read … but here goes: “This notice is published in accordance with sections 1503.1 and 1506.6 of the CEQ’s Regulations (40 CFR parts 1500-1508) implementing the procedural requirements of NEPA, as amended (42 U.S.C. 4321 et seq.), and the Army and Corps’ NEPA implementation policies (32 CFR part 651 and 33 CFR part 230), and exercises the authority delegated to the Assistant Secretary of the Army (Civil Works) by General Orders No. 2017-1, January 5, 2017.”

Of course this action will also open a new round of litigation. That will be the test of the independence of the federal judiciary. Will federal judges tell the president no? Will litigation even be allowed (strange as those words sound)? The Trump administration and North Dakota certainly hopes not. That process takes too long in a world run by oil gadzillionaires.

A statement by the Standing Rock Sioux Tribe Tuesday said: “The Army Corps lacks statutory authority to simply stop the EIS and issue the easement. The Corps must review the Presidential Memorandum, notify Congress, and actually grant the easement.We have not received formal notice that the EIS has been suspended or withdrawn. To abandon the EIS would amount to a wholly unexplained and arbitrary change based on the President’s personal views and, potentially, personal investments. We stand ready to fight this battle against corporate interest superseding government procedure and the health and well being of millions of Americans.”

Sen. Hoeven said “we need to bring (this dispute) to a peaceful resolution.” Yet the president’s action, the order by the acting secretary of the Army Corps of Engineers, and the very idea of a strict father shouting, because I said so,” is not how to make a peaceful resolution.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

Reposting or reprinting this column? Please credit: Mark Trahant / TrahantReports.com

 

Reflecting on the dangers and promises of the Trump era #NativePolicyDebate

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A president unlike any since, well, Andrew Jackson

Mark Trahant / Trahant Reports

A terrible year? Elias Boudinot considered 1832 as such.

The year started with the Cherokee Nation winning its case in the U.S. Supreme Court, only to be followed by a message of “so what?” from President Andrew Jackson. Boudinot’s home was slated for auction by the state of Georgia; the idea being that settlers would then force Cherokees to flee their own homes. And, Boudinot resigned his job as editor of The Cherokee Phoenix because he believed the Chief John Ross was dictating the newspaper’s positions. He wrote: “I do conscientiously believe it to be the duty of every citizen to reflect upon the dangers with which we are surrounded; to view the darkness which seems to lie before our people, our prospects, and the evils with which we are threatened; to talk over all these matters, and, if possible, come to some definite and satisfactory conclusion.”

Boudinot had three goals for The Cherokee Phoenix. To inform tribal citizens as “a free paper,” one that would “always be open to free and temperate discussions on matters of politics, religion, &c.” Second, to publish a defense of “our rights.” And, third, the “representation of our grievances to the people of the United States.” He was particularly troubled by the last idea, reaching out to Americans. “We can say nothing which will have more effect upon the community, than we have already said,” Boudinot wrote. “The public is as fully apprised as we can ever expect it to be, of our grievances. It knows our troubles, and yet never was it more silent than at present. It is engrossed in other local and sectional interests.”

And so we shift to 2017. Our challenges, of course, are different. But the idea of a serious reflection, a public discourse, about the policy choices ahead are as important now as it was then. I have been thinking about 1832 for two other reasons: First, Donald Trump will be a president unlike any we’ve seen since, well, Andrew Jackson. And, that era, like this is one is where reason and facts are discounted. There is a meanness in our public square. On top of that, our next president makes things up and yet some still people believe him. So, I guess, the public is once again as fully apprised as we can ever expect it to be.

Of course Trump supporters from Indian Country tell a different story.

They see him as a new champion of tribal sovereignty, especially when the focus is on energy development. (Previous: The deep divide on energy and climate issues.) The problem with this is that folks who think fossil fuels are our future are on the wrong side of history. In order to buy the logic of more oil, gas, and coal, you have to pretend that climate change is neither real nor human caused. The trade off requires believing that profits and perhaps a few jobs are better measures than science. And, to do this at a time when the rest of the planet is moving on. Linking Indian Country’s future to fossil fuels locks us into declining technology and shrinking markets.

One way a Trump administration could really help Indian Country is infrastructure. But we know so little about the president-elect’s plan and how that could impact American Indian and Alaska Native communities. (Other than pipelines, that is.) The president-elect has called building roads, water systems, electricity grids, and telecommunications as “a golden opportunity for accelerated economic growth.” But that plan has two serious obstacles for tribal nations. Trump promises to use private partnerships to pay for these projects. And, he wants the initiative to give “maximum flexibility to the states.”

Watch for this phrase in the coming weeks … “and tribes.” The Congress and the Obama administration often inserted that language into law and public policy to open options for tribes that were similar in scope to state governments. Will that continue? Or is giving states “maximum flexibility” a single paradigm?

That brings me to the two greatest challenges ahead in a Trump administration, the repeal of the Affordable Care Act and the severe budgets that are ahead.

Repealing the Affordable Care Act, or Obamacare, will likely be the first vote in Congress. But repeal is the easy part. “Then what?” is a much more difficult question. House Speaker Paul Ryan, R-Wisconsin, recently told the Journal-Sentinel that a replacement bill will “take time.” He said“clearly there will be a transition and a bridge so that no one is left out in the cold, so that no one is worse off. The purpose here is to bring relief to people who are suffering from Obamacare so that they can get something better.”

Rep. Tom Cole, R-Oklahoma, has said any replacement of the Obamacare should include a new version of Indian Health Care Improvement Act. That’s the ideal. But what about funding? The Indian Health Service has been historically underfunded. And the Affordable Care Act has added money, especially through Medicaid expansion. That may be the most successful element of the law and it nets the Indian Health System substantial resources, money that is supposed to remain at local clinics and hospitals.

It’s important to remember that the Affordable Care Act has substantially reduced the number of uninsured Americans, including American Indians and Alaska Natives (from 16 percent in 2013 to a historic low of 10 percent in 2015). This is the number to think about: More than half (51 percent) of Native children are insured via Medicaid and the Children’s Health Insurance Program. This is important because those who have insurance are more likely to get a broader range of health care services than those who only rely on IHS for care.

So depending on how the repeal and replace legislation unfolds between 11 million and 60 million people could lose health insurance coverage. And the Indian Health system could lose hundreds of thousands of dollars in funding streams.

Then the issue of money for American Indian and Alaska Native programs might be the toughest one of all. I have been writing for years about austerity as a trend. We have been lucky during the Obama years because Indian Country was mostly held harmless (especially in the health arena).

But President-elect Trump’s choice for the Office of Management and Budget is Rep. Mick Mulvaney, R-South Carolina. He’s one of the most strident voices in Congress against federal spending (even voting against his own party when budgets were not harsh enough).

While in Congress Mulvaney championed reducing the size of the federal workforce by at least ten percent. One of his proposals would have limited agencies to one hire for every three departures. He advocates increased work by contractors while reducing total costs.

Mulvaney defended the 2013 sequester — a disaster in Indian Country — as something that “bodes well for the future.”

“We are, all of us, Democrats, Republicans and independents alike, having a national dialogue about what is really important for our government, and what our government could do without,” Mulvaney wrote. “And it has been much too long since we have done that.”

That conversation will define 2017.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

Reposting or reprinting this column? Please credit: Mark Trahant / TrahantReports.com