The Standing Rock Sioux Will Be Ready To Take a Trump Challenge to Courts

Yves here. One has to stand in awe of the remarkable cynicism of the Obama Administration. Does anyone believe it would have sided with the Sioux were it not for the opportunity to throw a spanner into the works of the incoming Trump Administration?

Another reason for featuring this post is it highlights an issue that is likely to be hotly contested: despite the Trump desire to take a buzz saw to regulations, it’s far more difficult to do than he and the political newbies who have been nominated for senior roles in his Administration seem to realize.

By Rebecca Leber. Originally published at Grist

In the wake of the Obama administration’s surprise decision to block a portion of the Dakota Access Pipeline, company reps seem confident they need only wait for President-elect Trump to keep building. But the lawyer who represents the Standing Rock Sioux says it won’t be so easy to overcome the legal hurdles.

“If an agency decides that a full environmental review is necessary, it can’t just change its mind with a stroke of a pen a few weeks later,” EarthJustice attorney Jan Hasselman told Grist. “That would be violation of the law, and it’s the kind of thing that a court would be called upon to review. It doesn’t mean they’re not going to try.”

Trump could force the pipeline through along the dispute route at Lake Oahe. He technically could ignore the Corps’ decision to fulfill a public Environmental Impact Statement with his newfound executive powers, but that might not be wise.

“He could in the sense that you can rob a bank, but you’d get in trouble,” Hasselman said.

If that were the case, Standing Rock would be prepared to take the matter to courts again, their lawyer told Grist.

“Circumventing the environmental assessment now that the agency has determined it’s the right course of action shouldn’t pass muster under legal standards,” he added.

For example, the Ninth Circuit has ruled that federal agencies can’t just flip on a dime on settled rulemaking that is based on facts because a new administration has taken over. The Supreme Court this year declined to take up the case, leaving the Circuit’s decision standing that the Bush administration couldn’t exempt the Tongass rainforest in Alaska from a conservation rule, when the agency’s fact-finding found otherwise.

Unless a conservative Supreme Court reverses course, then Standing Rock still has that advantage in a Trump era.

Going further to weaken environmental regulations overall would require a more robust change to the law with congressional action. With the law on their side for now, environmental justice advocates could challenge administration decisions just as they did in the Bush administration. (Talk about government interference: Trump is reportedly also considering privatizing oil-rich Native American land to boost oil companies.)

Energy Transfer Partners has its share of options, too — even if Trump didn’t reverse the decision, it could still sue to maintain the current route.

One of the surer bets on what’s next is that the company is going to have to wait longer to build its pipeline than it originally intended. Energy Transfer Partners wanted it to be operational by the end of the year. If the Corps decision holds, it could potentially be tied up as long as a year or two. It would have to undergo a full environmental assessment of route alternatives, which is the traditional way government agencies solicit input from the public and weigh the pros and cons of environmentally risky projects.

The pipeline is far from dead. But it’s also far from a sure thing.

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  1. UserFriendly

    I was hoping for the National Monument declaration. That was always wishful thinking though.

    1. Lydia Howell

      FROM THE START of his administration, Pres.Obama has SERVED THE 1%. He is allergic to conflict and has REFUSED to take any significant stands for the 90%. Even his health care “reform” (which has certainly done some INDIVIDUALS some good–my best friend would be DEAD of cancer if not for Obamacare)…but, the PRIORITY was to support Insurance Companies & Big Pharma. Starting with Bill & Hillary Clinton 25+ years ago and ending with Barack Obama, the Democratic Party are SERVANTS of ruling elites who don’t give a damn about the rest of us & offer only “multi-cultural’ SPECTACLE but,otherwise, are REPUBLICAN in POLICIES.

    1. crittermom

      Thanks for the link.
      I have yet to finish it myself, but this stood out to me: “…campaign of violence and disorder waged by protestors…”.

      As we know (while MSM ignores), the violence is not coming from the water protectors.

  2. dk

    Back in the day, ’87 I think, I worked for a special election campaign. Our clients were real estate developers who wanted an easement of some environmental regulation to build a residential development and golf course, directly adjoining a lake and a protected swamp. The special election measure would ratify or reject the developer’s proposal, which was, as these things go, remarkably generous. The lake and swamp would be protected from development in perpetuity, there were provisions for additional drainage so that the golf course runoff would not pollute the lake, the size of the residential development was very strictly and explicitly limited; they really addressed a lot of concerns.

    The district in question was comprised of a handful of precincts, IIRC some 17,000 voters in total, a mostly well-to-do suburban neighborhood. The clients spent over $2 million on the seven-week campaign, with media saturation, 6-days-a-week door-to-door paid canvassing in multiple shifts, the works.

    But the measure was wildly unpopular, even residents who didn’t have environmental concerns didn’t want to deal with the additional traffic the development would bring, or lose their idyllic secluded parkland. The measure lost by a landslide.

    Two weeks later, in the middle of the night, someone came and bulldozed the swamp. Someone with at least three bulldozers to spare, hmm, wonder who that could have been. The investigation into the incident was cursory (but during the next regular election, the local Sheriff and several councillors were very, very well funded).

    No more environmentally sensitive area to protect, so the regulation against development no longer applied. Ground for the development was broken the next month. They ended up building three times as many homes as previously proposed, with no runoff protection for the lake. Last I heard, the lake had been so severely polluted that it was going to be filled in (and then, of course, developed).

    So let’s not forget; brute force remains an available option for the various interests behind DAPL. And the Standing Rock Sioux are under no illusions about what and whom they are up against.

    1. Norb

      As long as the elite have a monopoly on the use of force, this kind of outcome will continue apace, regardless of the insanity of the outcomes. In America, we are a nation of sleepwalkers. I am reminded of a Gore Vidal quote considering the political predicaments we find ourselves in, “We are the United States of Amnesia, we learn nothing because we remember nothing.”

      The people always have to find an answer to that dynamic of force and physical violence. The left has not found the answer. The future is shaping up that America’s wars abroad will be brought home. It is a good turn that veterans made the difference in the DAPL standoff to date and point to a positive future, but all depends on how much the elite will continue their extremism. We will see how far they are willing to go. Up to now, they have been able to achieve their goals through stealth and bribery.

      It is time to start remembering. I am convinced, that new movements will be built on that remembering and be made stronger for that reason. This is the power of native people taking the lead towards a new path. This is why veterans have such a powerful voice. They stand as witnesses to the crimes of empire and unrestrained greed.

      1. different clue

        ” In America, we are a nation of sleepwalkers.” We are? Are you a sleepwalker? Is everyone reading or writing at this site a sleepwalker? Is every non-Indian who has supported the NoDAPL action one way or another a sleepwalker?

        1. Norb

          Sleepwalkers in the sense that the current operative narrative directing actions for most of the American population is destructive and counterproductive, but not acknowledged as such. That narrative is the corporatist-globalist one. As the above story relates, the use of violence with impunity is the end game. That is Authoritarianism. That is Tyranny.

          The problem is unregulated capitalism supported through public policy, but still people believe in the myth of abundance and greatness. To calm their fears of a world falling apart, they close their eyes and minds to the actual physical destruction occurring all around them. You and those at NC are a minority questioning the narrative, like those demonstrating at the DAPL site. Just one recent poll that points to this.

          Sleepwalkers are people who, when shocked out of their condition, exclaim,”how did that happen?” This is the dilemma of worker/ owner relations in our current system. If the workers survival depends on the employer, unless he/she is very exceptional, you are driven into poverty. Anyone without strong family ties is put in even greater risk. Question that relationship, and various forms of violence will ensue. Under this dynamic, both sides end up blinded. Workers are limited in their inherent potential, owners are morally distorted by the use of violence.

          Compromise is a term that is being driven out of social discourse. Experience shows that this condition does not bode well. In the end, I fear there will be many people exclaiming, “how did we let this happen”- once again.

          The real work is changing minds and making people care. Without that, you have an unjust, polarized society. Welcome to America. We are great.

  3. RUKidding

    I am happy for what happened so far with DAPL, but yes, I’m utterly beyond cynical contempt for the Barackstar. Obama is a huge giant reason why Trump is now our incoming POTUS. I hold him as one of the bigger reasons for the mess we are currently facing. It turns my stomach when Democratic voters opine about how saddened they are to see the Barackstar go. UGH. So much denial. So unwilling to confront the facts of this scurrilous admin that was so deleterious to so many citizens that they felt the need to vote for Trump.

    Reap what you sow. Obama is shameless greedy self-centered hustler. Just watch how quickly he becomes super rich. That’s his whole goal and aim. Maybe he can some jawb siphoning off money from the Clinton foundation.

  4. chuck roast

    My reading of the Corps Memo is that there will not be an expanded Environmental Assessment (EA). With an EA no public input is required, various alternatives (of no interest to the applicant) can be easily dismissed for a cursory study of the “preferred” alternative all with the presumption is that there will be “no significant impact” resulting in a FONSI – a Finding Of No Significant Impact. Slam dunk baby-cakes.
    What will now be required will be a full-blown Environmental Impact Study (EIS) which will begin at the beginning…
    A Notice of Intent (NOI) informing the general public of the planned project and their right to be informed and comment on the project. This includes the standard Alternatives Analysis (AA) where all possible alternatives – including, by the way, a No Build alternative – will be analyzed and discussed in a Draft EIS. The DEIS will discuss all possible “significant impacts” under each of the alternatives and the possibility of mitigating these impacts. The general public will have 30-45 days to comment on the DEIS, the proposed alternatives and the proposed mitigation.
    If after public comment and modification the DEIS is deemed acceptable by Corps (and the No Build alternative is dismissed) a Final EIS will be prepared to include the Preferred Alternative and any proposed mitigation to any perceived “significant impacts”. After a short review period, a Record of Decision (ROD) is issued by the federal agency approving the proposed project and proposed mitigation of impacts.
    Done deal.
    Then we go to court.
    That’s the way NEPA works.

  5. denton

    the pipeline starts out east of the river, it would seem a route that keeps it east of the river requires no river crossing at all?

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