THE ARMY CORPS OF ENGINEERS announced yesterday that they would not be allowing the Dakota Access Pipeline (DAPL) to be completed along the currently proposed route, which involves drilling under the Missouri River.
While this is certainly cause for celebration for all of the water protectors camped out at Oceti Sakowin, protesting the building of the pipeline, it is far from certain victory. Alternative routes for the pipeline will be explored, but the environmental reviews related to these can take months, or even years. ETP stands to lose millions of dollars while the project sits in limbo.
It’s not out of the question that they will simply drill under the Missouri, and complete the pipeline without the necessary permits. Yes, they will be fined — but they stand to lose a lot more money by doing nothing at all.
The Army Corps of Engineers has ordered the protectors to vacate camp by December 5th, and many are wary of the decision to suspend completion of the pipeline the day before they’re supposed to leave. Reasonably so, they see it as a ploy to get protectors peacefully out of camp before the harsh North Dakota winter strikes.
It’s possible that this decision is a ruse. It’s a way to resolve, or at the very least de-escalate, this conflict the week after thousands of veterans made national headlines by turning out to protect the water protectors as they prayed. Water protectors can return home to the comforts of modern life, confident that they took a stand and made a difference.
President Obama has 47 days left in office. He is a lame duck, and the incoming Trump administration has a decidedly different stance on the completion of the pipeline: they are in favor of its completion.
This victory could be short-lived. The decision to delay the approval of the drilling permits could easily be reversed by the incoming Trump administration, a fact which is decidedly not out of the question. While there are members of Oceti Sakowin that have vowed to camp through the winter, keeping an eye on the construction of the pipeline, their numbers will dwindle as the temperatures drop and the snow accumulates. The Standoff at Standing Rock will fade from the national conscience; the country will move on to other things.
Make no mistake, the cessation of construction is a victory for those who have decided to Stand With Standing Rock, and fight for something they believe in. But the battle is far from over. The Army Corps of Engineers could still reverse their decision, and allow the drilling necessary to complete the pipeline.
I’ll be wary of any celebrations of victory on behalf of the protectors until the pipeline is completed—using another route, far from Standing Rock. There is still too much that can happen to declare this a win for the water protectors. Only time will tell which side can ultimately celebrate “victory” in this ugly, bloody standoff.
If we can't have pipelines, we'll need more power lines.
dpa/picture alliance via Getty Images
Builders of oil and gas pipelines suffered a trio of setbacks over legal challenges in the space of just 36 hours between Sunday and Monday. An $8 billion natural gas pipeline was cancelled, the Dakota Access oil pipeline was ordered to shut down for up to 13 months, and the Supreme Court declined to greenlight the infamous Keystone XL oil pipeline.
Pipeline builders nodded grimly: growing environmental opposition and expanded federal environmental reviews mean it’s simply not as easy as it once was to build pipelines.
But oil and gas executives might not be the only ones with cause for concern in an era of rising environmental concerns. Long-distance power lines designed primarily to carry electricity from parts of the U.S. with abundant wind and solar power to regions that need more of it face growing legal and regulatory barriers, according to energy and legal experts.
“Power lines, like other energy infrastructure, are becoming harder to build in the US," said James Coleman, a law professor at Southern Methodist University who has written widely about energy infrastructure. There are now "more environmental reviews, more governments with veto power, and more restrictions on the use of eminent domain."
Building additional long-distance power lines — hulking ski lift-like structures visible from miles away — is key to America’s transition from fossil fuels to wind and solar power, a number of experts believe. Since solar farms tend to be in sunny southwestern states like California or Texas, while most wind farms are in windy states such as Iowa or Illinois, it's important to be able to send that electricity to regions lacking in wind or sun. If that's not possible, then states in these regions will have little choice but to crank up gas- or coal-fired power plants.
Yet even as the need for such power lines grows, fewer are being built. Only about 1,300 miles of power transmission projects were built in 2018, well below a peak of about 4,600 miles built in 2013, according to federal data compiled this year by energy consulting firm ScottMadden.
A growing number of proposed projects — from the 780-mile Grain Belt Express that would connect wind energy-rich Kansas to Indiana, to the 520-mile SunZia line that would stretch from New Mexico to Arizona, and others — are mired in lengthy court battles and various stages of permitting.
What explains their problems? Experts reached for this article mostly argued that few individual court cases, and neither of the two major cases this week halting the Dakota Access Pipeline and the still-unbuilt Keystone XL, create direct precedents that could trip up power line developments. Largely that’s because recent legal decisions have distinguished between energy projects that pose a risk of polluting bodies of water, such as oil and gas pipelines, and those that don’t, such as power lines.
“Transmission lines for renewable energy do, and will continue to, face siting battles in court. No question. But this week's major developments on oil and gas pipelines don't tell us much about how those battles ought to play out,” said Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law. The ruling temporarily halting the Dakota Access Pipeline is “unique” to the Trump administration’s environmental review of potential leaks, Burger said, while the Supreme Court’s ruling on a case that declined to allow Keystone XL to continue is limited to oil and gas projects.
But others suggested that the rulings doubled down on a doctrine of expanded federal environmental reviews in ways that could come back to haunt power lines and renewables. In the Dakota Access Pipeline case, for example, a D.C. district court judge said the pipeline must shut down until a sweeping environmental review he had ordered the government to undertake in March is completed.
"The key risks created by the Dakota Access decision are that it a) requires a full federal environmental review of a project that, like all oil pipelines and power-lines is regulated by the states," wrote Coleman in an email. "And b) it requires removal of a project that was already in service. In the past, courts have been very wary of ordering removal of pipelines and power-lines that are in service, so this is a new risk.
Regardless of implications of this week's rulings, the legal and regulatory barriers to power lines — widely decried inside the power transmission industry — are unmistakable, from lengthy environmental reviews to more dependence on permission from individual states.
“Power lines have actually provoked more political controversy than pipelines,” said Ryan Driskell Tate, an analyst at Global Energy Monitor, a non-governmental organization that catalogs fossil fuel infrastructure. “This kind of opposition that you’re seeing around pipelines can absolutely cause problems later down the road for power lines. If you start having expanded environmental reviews, then that can carry over” into fewer of these projects getting approved.
According to a law review article by Coleman in 2018, many of the challenges are the result of states, the federal government, landowners and environmentalists all clamoring for a greater say over interstate energy projects. The upshot is a “complex mix” of concerns by several different actors, in place of what had traditionally been a process controlled largely by one actor: the states that the pipeline or power line crossed.
Many of these changes occurred during the Obama administration. In 2016, the Justice Department said it would push for expanded federal environmental reviews of energy transport projects, seeking to assuage the concerns of Indian tribes and environmentalists who had been protesting the Dakota Access Pipeline in North Dakota. Even after courts determined that a key federal permitting agency — the US Army Corps of Engineers — was indeed in compliance with a law that protected native lands, the Justice Department ordered an additional and lengthy environmental assessment of the pipeline, setting a precedent for more such reviews in the future.
At the same time, states were also asserting a greater role. New York state set its own precedent in 2016 when it denied a Water Quality Certification permit to the Constitution Pipeline, even though traditionally a federal permit — which the Constitution’s developers had already obtained — served as automatic grounds in such cases for any required state permits. Other states, including Connecticut the next year, would soon follow in New York’s footsteps, effectively expanding states' power to veto interstate energy projects.
Meanwhile, landowners have been successfully chipping away at the power of private companies to use eminent domain to obtain “easements,” or crossings, across landowners’ property — a tool that power line developers say they could not do without, since otherwise individual landowners would potentially have the ability to veto entire projects.
The upshot of these separate actors each accruing for themselves a greater say over interstate energy projects? Developers of both pipelines and power lines alike now must navigate a gauntlet of uncertain legal and regulatory hurdles before finally connecting their projects to the grid. One example: the average time to complete an environmental impact statement (EIS), which are required for major environmental projects, has steadily lengthened to more than five years.
Of course, not everyone agrees that significant new additions of long-distance power lines to ferry clean electricity around the US are even necessary in the first place.
In a widely noted report published last month, researchers at the University of California at Berkeley modeled what it would take for the US to reach 90% clean energy by 2035. They found that only $4-5 billion of long-distance transmission would be needed, compared with $102 billion in other electrical grid upgrades. Their model found that “significant additional bulk transmission” would be worthwhile in a scenario where the cost of storing electricity is high — which would be the case if technology fails to advance sufficiently — but that as long as storage costs are low enough, then not too much extra transmission would be needed.
“Long distance transmission has been a key enabler of the renewables revolution in California and Texas,” said Octavi Semonin, a technical director with renewable energy fund Powerhouse. “But future cost declines in batteries and renewables are poised to mitigate the need in the future.”
Still, that news is likely little consolation to the multi-billion dollar long-distance power line projects still waiting for states and the government to sign off on their proposals, or for court battles to wrap up. They could be waiting a long time.
Opponents have warned that the pipelines could endanger many animals and their habitats in the U.S. and Canada through the infrastructure’s construction, maintenance, and possible failures that could lead to an oil spill.
The critically endangered whooping crane is at risk of flying into new power lines that would be constructed to keep oil pumping through the Keystone XL pipeline, the National Wildlife Federation has said. While the greater sage-grouse isn’t officially an endangered species, it has already lost some of its habitat, and the Keystone XL pipeline route is close enough to areas where grouse mate that noise from roads, pumping stations, and construction could impact the breeding success of this shy bird.
The Keystone XL pipeline route would go through most of the remaining locations of the swift fox, a tiny canid about the size of a house cat. The U.S. State Department’s Environmental Impact Report also said that some American burying beetles will be killed and their habitats also destroyed by the pipeline, though the agency added that a monitoring and habitat-restoration program would help mitigate losses and the species wouldn’t be seriously threatened.
There are nine threatened, endangered, and candidate species in the areas that the Dakota Access pipeline would run through, according to an environmental assessment by the U.S. Fish and Wildlife Service published in May 2016. The assessment concluded that the pipeline does not pose a specific threat to any of their habitats.
There is an ancient Lakota prophecy about a black snake that would slither across the land, desecrating the sacred sites and poisoning the water before destroying the Earth.
For many Indigenous people gathered near the Standing Rock Sioux reservation, that snake has a name — the Dakota Access pipeline.
"There was a prophecy saying that there is a black snake above ground. And what do we see? We see black highways across the nation," said Dave Archambault, chairman of the reservation, which straddles North and South Dakota. "There's also a prophecy that when that black snake goes underground, it's going to be devastating to the Earth."
That belief is why hundreds of people have gathered since April to pray in camps along the Missouri River.
LaDonna Brave Bull Allard started the first camp, Sacred Stone, on her family's land near the reservation.
"If you go around the camp, you'll see people in different ceremonies and prayers all day long," she told CBC News last Sunday. "It's about prayer."
Her message was clear: "We must stand together and we must kill the black snake."
Supporters of the cause have come from all around the country and even the world. They're determined to stop the $3.7-billion US project that would transport an estimated 470,000 barrels of crude oil a day from North Dakota's Bakken region southeast through four states to Illinois.
Its path would cross twice beneath the Missouri River, which supplies an estimated 17 million people with drinking water.
The campers received a big lift last Sunday, when the army announced it won't issue a permit for the pipeline company to tunnel under a Missouri River reservoir and will ask for more environmental studies and potential alternate routes.
They know the black snake isn't dead yet, but punishing storms last week sent many campers packing. In fact, Archambault urged them to go home for their own safety and Allard asked that no newcomers show up at Sacred Stone unless they've been personally invited.
Lisa Greyshield, a member of the Washoe Tribe of Nevada and California and associate professor of educational psychology at New Mexico State University, was working as a medic in the main camp, called Oceti Sakowin, when CBC News visited last Sunday.
There were ceremonies throughout the day and night at the Sacred Fires, which elders and Indigenous leaders lit when the camp opened in April.
"This was opened up as a prayer to stop that black snake from coming in, to pray for the water," Greyshield said. "Earth, water, air, fire, all these elements are important in Indian country. The water is the lifeblood."
Defeats at three projects reflect increasingly sophisticated legal challenges, shifting economics and growing demands by states to fight climate change.
They are among the nation’s most significant infrastructure projects: More than 9,000 miles of oil and gas pipelines in the United States are currently being built or expanded, and another 12,500 miles have been approved or announced — together, almost enough to circle the Earth.
Now, however, pipeline projects like these are being challenged as never before as protests spread, economics shift, environmentalists mount increasingly sophisticated legal attacks and more states seek to reduce their use of fossil fuels to address climate change.
On Monday, a federal judge ruled that the Dakota Access Pipeline, an oil route from North Dakota to Illinois that has triggered intense protests from Native American groups, must shut down pending a new environmental review. That same day, the Supreme Court rejected a request by the Trump administration to allow construction of the long-delayed Keystone XL oil pipeline, which would carry crude from Canada to Nebraska and has faced challenges by environmentalists for nearly a decade.
The day before, two of the nation’s largest utilities announced they had canceled the Atlantic Coast Pipeline, which would have transported natural gas across the Appalachian Trail and into Virginia and North Carolina, after environmental lawsuits and delays had increased the estimated price tag of the project to $8 billion from $5 billion. And earlier this year, New York State, which is aiming to drastically reduce its greenhouse gas emissions, blocked two different proposed natural gas lines into the state by withholding water permits.
The roughly 3,000 miles of affected pipelines represent just a fraction of the planned build-out nationwide. Still, the setbacks underscore the increasing obstacles that pipeline construction faces, particularly in regions like the Northeast where local governments have pushed for a quicker transition to renewable energy. Many of the biggest remaining pipeline projects are in fossil-fuel-friendly states along the Gulf Coast, and even a few there — like the Permian Highway Pipeline in Texas — are now facing backlash.
“You cannot build anything big in energy infrastructure in the United States outside of specific areas like Texas and Louisiana, and you’re not even safe in those jurisdictions,” said Brandon Barnes, a senior litigation analyst with Bloomberg Intelligence.
The growing opposition represents a break from the past decade, when energy companies laid down tens of thousands of miles of new pipelines to transport oil and gas from newly accessible shale formations in North Dakota, Texas and the Appalachian region.
Between 2008 and 2019, oil production in the United States more than doubled and gas production increased by more than 60 percent as a result of new drilling techniques known as hydraulic fracturing, or fracking. Electric utilities have built hundreds of new natural gas power plants, and the United States has transformed itself from a gas importer to an energy superpower looking to build export terminals to ship oil and gas overseas.
In recent years, however, environmental groups have grown increasingly sophisticated at mounting legal challenges to the federal and state permits that these pipelines need for approval, raising objections over a wide variety of issues, such as the pipelines’ effects on waterways or on the endangered species that live in their path.
Strong grass roots coalitions, including many Indigenous groups, that understand both the legal landscape and the intricacies of the pipeline projects have led the pushback. And the Trump administration has moved some of the projects forward on shaky legal ground, making challenging them slightly easier, said Jared M. Margolis, a staff attorney for the Center for Biological Diversity.
For the Dakota and Keystone XL pipelines in particular, Mr. Margolis said, the federal government approved projects and permits without the complete analyses required under environmental laws. “The lack of compliance from this administration is just so stark, and the violations so clear cut, that courts have no choice but to rule in favor of opponents,” he said.
Energy Transfer, the Dakota pipeline’s operator, has said it believes the ruling “is not supported by the law or the facts of the case” and that it will seek to stay or appeal the decision. TC Energy, which is building the Keystone XL pipeline, has said the decision would cost jobs.
Even when energy companies ultimately prevail, as the backers of the Atlantic Coast Pipeline recently did at the Supreme Court over a permit to cross the Appalachian Trail, the delays can be costly.
Between 2009 and 2018, the average amount of time it took for a gas pipeline crossing interstate lines to receive federal approval to begin construction went up sharply, from around 386 days at the beginning of the period to 587 days toward the end. And lengthy delays, Mr. Barnes said, can add hundreds of millions of dollars to the cost of such projects.
In the meantime, the entire energy industry is wrestling with the economic fallout from the coronavirus pandemic, which has caused demand for oil and gas to drop worldwide. Falling energy prices further complicate the financial case for new pipelines.
“We’d expect the demand for new pipelines over the next few years to be lower anyway,” said Stephen Ellis, an energy and utilities strategist at Morningstar Research, “even setting aside all the legal issues and growing community opposition.”
Mr. Ellis added that, in some areas, the pipeline disruptions could put added pressure on oil and gas producers. The Dakota Access Pipeline had been transporting 557,000 barrels of oil per day from the Bakken shale formation in North Dakota. With the pipeline shut down, many energy producers may struggle to ship their oil by rail instead.
Over the past week, both the Trump administration and the fossil-fuel industry have expressed growing frustration with environmentalist opposition around pipelines.
“Our nation’s outdated and convoluted permitting rules are opening the door for a barrage of baseless, activist-led litigation, undermining American energy progress and denying local communities the environmental, employment and economic benefits modern pipelines provide,” Mike Sommers, president and chief executive of the American Petroleum Institute, said in a statement.
A slump in American exports of liquefied natural gas — natural gas cooled to a liquid state for easier transport — has also weighed heavily on pipeline projects. L.N.G. exports from the United States had boomed in recent years, more than doubling in 2019 and fast making the country the third largest exporter of the fuel in the world, trailing only Qatar and Australia. But the coronavirus health crisis and collapse in demand has cut L.N.G. exports by as much as half, according to data by IHS Markit, a data firm.
Erin M. Blanton, who leads natural gas research at Columbia University’s Center on Global Energy Policy, said the slump would have a long-term effect on investment in export infrastructure. The trade war with China, one of the largest growth markets for L.N.G. exports, has also sapped demand, she said.
“We haven’t seen a contract signed with China since the trade war began,” she said, adding that it could be a couple years before export projects see investments again. “And if you don’t have an additional L.N.G. terminal getting built, it’s unlikely that you’ll also be building the pipeline to feed that terminal,” she said.
Still, domestically, natural gas remains in the picture, she said. Even with the effects of the coronavirus, gas use for electricity has not declined significantly. “You still have a lot of projects still in the works, because there is still demand,” she said.
Energy companies and utilities say that many parts of the country still need new pipelines to deliver natural gas to run power plants and heat homes. In New York, supporters of the now-canceled pipelines had warned of shortages and price spikes without new infrastructure. But even this argument often gets pushback.
Last year in Virginia, a coalition of technology companies including Microsoft and Apple wrote a letter to Dominion, one of the utilities backing the Atlantic Coast pipeline, questioning its plans to build new natural gas power plants in the state, arguing that sources like solar power and battery storage were becoming a viable alternative as their prices fell. And earlier this year, Virginia’s legislature passed a law requiring Dominion to significantly expand its investments in renewable energy.
“As states are pushing to get greener, they’re starting to question whether they really need all this pipeline infrastructure,” said Christine Tezak, managing director at ClearView Energy Partners.
For now, the opposition to pipelines is hardly universal. Plenty are still being built in Texas, where state regulators look more favorably on fossil-fuel projects and oil and gas production was booming before the coronavirus pandemic hit. Energy companies have often run into less opposition when they expand the capacity of existing pipelines. And though the Supreme Court ruled against the Keystone XL pipeline, it temporarily revived a permit program that would let other oil and gas pipelines cross waterways after relatively modest scrutiny from regulators.
Even some of the pipelines currently being challenged in court may ultimately prevail. Ms. Tezak of ClearView said the $4.7 billion Mountain Valley Pipeline, which would transport natural gas 300 miles from West Virginia to Virginia, still appeared to be on track to get approval for its permits later this year despite extensive environmental opposition.
But new fronts in the pipeline wars continue to open up. In Texas, landowners and environmentalists have challenged the Permian Highway Pipeline, warning of the risks of spills to nearby drinking-water supplies. In Michigan, environmentalists have pushed Governor Gretchen Whitmer to follow through on a campaign promise to shut down Enbridge’s aging Line 5 oil pipeline.
The presidential election also looms.
President Trump has vowed to expand America’s oil and gas infrastructure and his administration has pushed to limit the ability of states to challenge pipelines. But Democrats have signaled they would subject oil and gas infrastructure to much stricter scrutiny should they take power. One frequently discussed option, endorsed by House Democrats in their climate plan released last week, would be for the federal government to require new gas pipelines to more fully account for their greenhouse gas emissions impacts as they seek permits.
Climate will also play a larger role in future legal challenges, environmental groups said. “The era of multibillion dollar investment in fossil fuel infrastructure is over,” said Jan Hasselman of the environmental group Earthjustice and attorney for the Standing Rock Sioux Tribe, which led the legal challenge against the Dakota Access pipeline. “Again and again, we see these projects failing to pass muster legally and economically in light of local opposition.”