The fight against Energy Transfer Partners’ Dakota Access pipeline was supposed to be consigned to the annals of history by now – at least if Donald Trump, oil oligarchs and law enforcement had their way.
Just days after his inauguration, the president signed a memorandum that reversed an Obama administration decision ordering a thorough environmental impact statement for the $3.8bn pipeline, and instead expedited permits for the project.
A month later, in February, police cleared the remaining protest camps erected in the path of the pipeline just north of the Standing Rock Sioux reservation in North Dakota. Even before Dakota Access became operational, it leaked in three separate incidents in March and April, vindicating protesters, who had warned that the pipeline posed a major threat to water, public health and the climate.
Despite massive resistance, oil began flowing through the pipeline on 1 June. The date was said to mark a final nail in the coffin of the anti-Dakota Access movement.
Anti-Dakota Access protesters, who came from around the world and call themselves water protectors, reportedly moved on, carrying the Standing Rock gospel to other pipeline fights across North America. The media and news cycle moved on too, turning attention to developing stories about Trump, Comey, Russia and the like.
On Wednesday, however, a federal judge breathed life back into the fight against Dakota Access. In a 91-page decision, US district judge James Boasberg ruled that the corps failed to take into account the impacts that a spill underneath the Missouri river could have on “fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial”. The corps’ hasty decision to permit the pipeline without a thorough environmental impact statement violated the National Environmental Policy Act.
Standing Rock and the neighboring Cheyenne River Sioux tribe launched two previous legal challenges against the pipeline. The first contended that the corps failed to properly consult with tribes about the threat that construction posed to sacred sites in the project’s path. The second argued that Dakota Access desecrated sacred waters and violated Lakota religious freedom. Neither line of legal defense against the project convinced the court.
This third attempt, which focused on the potential environmental impacts of the pipeline and the corps’ failure to adhere to environmental law largely succeeded, and marks a significant, if partial, victory for Standing Rock.
In his ruling, the judge ordered the army must redo its environmental analysis on sections of the pipeline that cross under Lake Oahe on the Missouri river. He also left open the possibility that Dakota Access could be forced to cease operations as a remedy for these violations.
The ruling shows that the Obama administration’s decision to order a thorough environmental impact statement for the pipeline was the most responsible legal action. It was not, as Energy Transfer Partners CEO Kelcy Warren claimed at the time “motivated purely by politics at the expense of a company that has done nothing but play by the rules”.
Quite to the contrary, Dakota Access and the government have apparently broken a list of rules and laws in order to force the pipeline through Standing Rock against the community’s will.
Standing Rock has long argued that the pipeline violates rights protected in the Fort Laramie Treaty of 1851 as well as the constitutional right to religious freedom.
An ongoing investigation by the Intercept has revealed that the shadowy private security and international mercenary firm TigerSwan, which is held on retainer by Energy Transfer Partners, TigerSwan engaged in military-style counter-terrorism tactics brought back from wars in Iraq and Afghanistan.
They monitored activists with drones and assigned security details to follow movement leaders. They infiltrated protest camps and watched organizers online. They provided law enforcement with “daily intelligence updates” and even met with investigators from the North Dakota attorney general’s office.
In addition to Wednesday’s ruling, these still emerging details paint a picture of a pipeline built upon dubious legality and enforced through brutal tactics coordinated by both police and private security.
As Energy Transfer Partners and Warren – who has a reported net worth of $3.9bn – look forward to a potentially lucrative 2017, hundreds of nonviolent water protectors have faced charges stemming from the Standing Rock demonstrations.
Their struggle is not yet over; in fact, it is just beginning. In the courts, as well as in the press and public opinion, they may yet win more victories to impede and stop Dakota Access.
This has significant implications for the future of indigenous rights, energy infrastructure and the climate.
At Standing Rock and beyond, indigenous peoples have shown that their rights and movements can defend people and planet against the incursions of fossil fuel goliaths. In the wake of the US exit from the Paris agreement, many are poised for despair and retreat.
But if we hold our ground and stand with the indigenous communities on the frontlines of our metastasizing environmental and climate catastrophes to protect the lands and waters that we all need to survive, the planet and its people may yet win.