Opinion | Dakota Access Pipeline should be shut down while the new environmental statement is being prepared

Despite the United States government’s alleged desire to address the worries and preserve the heritage of Native American peoples, numerous U.S. decisions and actions go against the wishes and concerns of Native nations and tribes.

One well-known example was the government’s approval of the Dakota Access Pipeline in 2017, despite strong protest from the Standing Rock Sioux Tribe. The tribe’s reservation is less than a mile away from the pipeline, and members fear that a spill would contaminate their water and disrupt sacred lands.

In the past week, an important decision involving the Dakota Access Pipeline was made. U.S. District Judge James Boasberg ruled that the U.S. government failed to adequately study the pipeline before approving it. He said a new environmental impact statement must be completed by the U.S. Army Corps of Engineers before the pipeline’s permits can be reapproved. While the ruling is a victory for the Standing Rock Sioux Tribe, Judge Boasberg has yet to decide whether oil can continue to flow while the USACE review is being completed.

The court’s decision to review the pipeline was centered on the finding that the U.S. Army Corps of Engineers was not thorough enough in issuing the pipeline’s easement approval. The memorandum opinion of the case stated that “too many questions remain unanswered,” and that the USACE’s decision remains “highly controversial.”

Boasberg requested that the two sides of the lawsuit — the Standing Rock Sioux Tribe and the U.S. Army Corps of Engineers — submit briefings next month for and against keeping the pipeline in service. Jan Hasselman, an attorney with the environmental group Earthjustice who represents the Standing Rock tribe in the lawsuit, said the tribe would ask for the pipeline to be shut down until the review is completed, while the USACE is expected to take the opposite position. Because the USACE’s last report did not accurately describe the risks of running the pipeline, with data and claims from the tribe and the USACE conflicting each other, the United States should shut down the pipeline until the USACE finishes its new environmental statement.

Four main “unresolved scientific controversies” of the case were the pipeline’s leak-detection system, the operator’s safety record, winter conditions and worst-case discharge. With all of these four factors, the court ruled that the USACE did not sufficiently address concerns raised by the Standing Rock Sioux Tribe’s experts. In other words, risks raised by the tribe could be realistic, even though the USACE claims they are unfounded.

It is worth noting that these four factors — leak-detection system, operator safety record, winter conditions, worst-case discharge — are not small issues. A functioning leak-detection system, for example, is key in monitoring leaks, ruptures and seeps, so when Standing Rock Sioux Tribe’s experts found problems with the Dakota Access Pipeline’s system that the USACE was unable to refute, this raised a huge concern. The tribe’s experts found that the leak-detection system used by Dakota Access, called a CPM system, failed to detect spills 80% of the time.

Additionally, experts found that the system would not detect leaks that constituted 1% or less of the pipe’s flow rate, which meant approximately 25,000 gallons of oil could be released “continuously, over a long period of time, without detection.” As Judge Boasberg stated, the USACE failed to adequately dispose of these concerns, meaning that it is very possible that the tribe’s findings are accurate. These concerns that the USACE failed to remedy are not small issues — they are serious problems that, if they occur, could potentially pollute Native water and land.

Until a more in-depth environmental statement is complete, we will not know the full scope of the pipeline’s risks. It’s possible that the USACE was accurate in its findings, but it’s also possible that the tribe’s concerns are valid. If this is the case, then the pipeline is a serious threat to the Standing Rock Sioux Tribe, as well as the environment. Until the USACE answers these questions — if they can — the pipeline must be shut down.

To make matters worse, the court-mandated environmental impact statement will not be a quick undertaking. Because of the nature of the review, the study is expected to take years to complete. This means that if not shut down while the review is being done, the pipeline could have years to run without knowing the full risks. It’s bad enough that we don’t know the true problems with the pipeline right now — we shouldn’t allow the pipeline to continue for years until the new statement is done.

Above all else, the pipeline should be shut down because the unknown scope of risks could have direct effects on Native land, water and ways of life — and this gets into the issue of tribal sovereignty. According to the U.S. Bureau of Indian Affairs, the Standing Rock Sioux Tribe is one of more than 500 federally recognized tribes, with the United States recognizing the tribe’s “inherent Tribal sovereign rights and powers.” This means that when the Standing Rock Sioux Tribe voices its concerns about the Dakota Access Pipeline, it is not merely a group of worried citizens — it is a tribal sovereign nation making an important claim about self-determination.

Even if the Dakota Access Pipeline is technically not in the jurisdiction of the Standing Rock Sioux Tribe because it is outside of the reservation, according to the Bureau of Indian Affairs, the Tribe still has a greater say over the development and implementation of federal programs and policies that directly impact the tribe and its members. This idea of tribal self-determination is supported by several pieces of legislation, such as The Tribal Self-Governance Act of 1994. The United States ought to consider the weight of the tribe’s concerns — the U.S. government is interacting with a sovereign government, not a special interest group, individuals or some other type of nongovernment entity.

The future of the Dakota Access Pipeline is uncertain, and until the U.S. Army Corps of Engineers properly completes an environmental impact statement, the risks of the pipeline are unclear. Shutting down a system as big as Dakota Access is not a decision that should be taken lightly, but it is the only logical choice.

Without shutting down the pipeline and ignoring the scope of risk, we are actively threatening the water, land and livelihood of sovereign Native tribes and nations.