Why the Dakota Access Pipeline May Not Proceed Imminently Despite Presidential Memo

The Army said it has not yet granted the easement needed to finish the pipeline.

ByABC News
February 1, 2017, 4:59 PM

— -- The U.S. Army Corps of Engineers may issue an easement in the coming days needed to finish the controversial Dakota Access Pipeline, according to two Republican lawmakers. But statements from the Army and the project's opponents indicate a decision is not imminent.

The 1,172-mile, four-state crude oil pipeline is almost finished, except for a section under Lake Oahe in North Dakota that’s been the focus of massive protests in recent months.

Within the final days of President Barack Obama’s administration, Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy announced on Dec. 4 that an easement would not be granted for the pipeline to cross under the large reservoir on the Missouri River, just upstream of the Standing Rock Sioux Tribe reservation.

Darcy said at the time of the decision that the Army Corps “shall engage” in additional review and analysis to include a “robust consideration and discussion of alternative locations for the pipeline crossing the Missouri River,” additional consideration of the tribe’s treaty rights and more detailed reviews of the potential risks and impacts of an oil spill.

All these steps, Darcy determined, would best be accomplished by the Army Corps preparing a full Environmental Impact Statement allowing for public input, a process that could take years. Darcy is no longer in the position after the change in administrations.

The move to deny the easement was hailed by the tribe and other pipeline opponents as a major victory, but on his second weekday in office, President Donald Trump signed a memorandum aimed at advancing the Dakota Access Pipeline, along with one directed at the Keystone XL Pipeline.

Then late Tuesday, Sen. John Hoeven said in a statement that U.S. Army Acting Secretary Robert Speer “has directed the Army Corps of Engineers to proceed with the easement” necessary to complete the $3.8 billion Dakota Access project. The North Dakota Republican said he spoke with Speer as well as Vice President Mike Pence.

“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,” Hoeven said. “This has been a difficult issue for all involved, particularly those who live and work in the area of the protest site, and we need to bring it to a peaceful resolution.”

Hoeven's spokesman, Don Canton, told The Associated Press that Speer's move means the easement "isn't quite issued yet, but they plan to approve it" within days.

Rep. Kevin Cramer also issued a statement saying he “received word” on Tuesday that the Army Corps notified Congress it will grant the easement. The North Dakota Republican cheered the announcement and called Trump “a man of action.”

On his second weekday in office, Trump signed memorandums aimed at advancing both the Keystone XL and Dakota Access pipelines.

However, despite what Hoeven and Cramer have said, the Army has indicated the easement may not be imminent.

The U.S. Army said today it has “initiated the steps outlined” in the president’s Jan. 24 directive, which it said orders Speer “to expeditiously review requests for approvals to construct and operate the Dakota Access Pipeline in compliance with the law.” But the Army also said that an the easement has not yet been granted.

“These initial steps do not mean the easement has been approved,” Maj. Gen. Malcolm Frost, chief of public affairs for the U.S. Army, told ABC News. “The assistant secretary for the Army Civil Works will make a decision on the pipeline once a full review and analysis is completed in accordance with the directive.”

The Standing Rock Sioux Tribe called Tuesday’s announcement “disappointing,” while noting that it is “not a formal issuance of the easement” but rather “a notification that the easement is imminent.” The tribe also renewed its vow to legally challenge any granting of the easement.

“The Corps still must take into consideration the various factors mentioned in the presidential memorandum, notify Congress, and actually grant the easement,” the tribe said in a statement on Facebook late Tuesday. “If and when the easement is granted, the Standing Rock Sioux Tribe will vigorously pursue legal action.”

In July, the Standing Rock Sioux Tribe sued to block the pipeline project, claiming it was never meaningfully consulted before construction began. The tribe also cites an 1851 treaty that it says designated the land in question for Native American tribes. That lawsuit is still pending, and the Army Corps as well as the pipeline company argued in court papers that they followed a standard review process.

In court papers filed today in U.S. District Court in D.C., the Army Corps noted: “Issuance of the January 31st Memorandum does not mean that a final decision on the application for an easement to construct the Dakota Access pipeline under Corps-managed Federal land at Lake Oahe has been made. The Army will make any decisions once a full review and analysis is completed in accordance with the Presidential Memorandum.”

A status hearing is slated for Monday in federal court in Washington, D.C.

Jan Hasselman, an attorney with the nonprofit group Earthjustice representing the tribe, told ABC News on Tuesday night that the statements from Hoeven and Cramer saying the easement would be granted are premature. Hasselman said he expects the easement to be issued "soon," but probably not before next week.

Hasselman has indicated that the tribe would likely file a renewed legal challenge to the easement, if and when it's approved.

The Standing Rock Sioux Tribe has been at the forefront of the prolonged protests against the Dakota Access Pipeline.

Thousands of Native Americans, environmental activists and their allies have camped out near the Standing Rock reservation for months to protest the project, making it one of the largest Native American demonstrations in decades. The protesters, who call themselves “water protectors,” argue that the pipeline will threaten the reservation’s water supply and traverse culturally sacred sites.

Kelcy Warren, CEO of Energy Transfer Partners, the Texas-based firm that’s building the pipeline, has said that “concerns about the pipeline’s impact on local water supply are unfounded” and “multiple archaeological studies conducted with state historic preservation offices found no sacred items along the route.”

ABC News' Serena Marshall, Luis Martinez, Meridith McGraw, Evan Simon and Catherine Thorbecke contributed to this report. The Associated Press also contributed to this report.