A camper walks through high winds during a blizzard to demonstrate against the Dakota Access pipeline, December 6, 2016.
Lucas Jackson / Reuters

After months of legal wrangling and high-profile protests in an effort to halt construction of the Dakota Access Pipeline, drilling has begun under North Dakota’s Lake Oahe, part of the Missouri River system and the location of the last unfinished segment of the pipeline. Spirited resistance by the Standing Rock Sioux Tribe and its allies galvanized an international movement that in December of last year secured an important but ultimately fleeting victory: the U.S. Army Corps of Engineers paused the project, calling for an environmental impact statement (EIS) that considered the tribe’s treaty rights, as well as its concerns about the destruction of its sacred cultural sites and the potential contamination of its water supply. 

The agency’s abrupt reversal on February 7, when it granted the easement to drill, has not only made the tribe’s and environmental activists’ victory short lived; it has served as a warning: the outright disregard for due process and swift dismantling of environmental protections that the Army Corps’ reversal represents has raised concerns that the administration of U.S. President Donald Trump will be beholden to the fossil fuel industry and impervious to the concerns of indigenous and environmental rights. 

The $3.8 billion, 1,172-mile pipeline, which is slated to transport crude oil from North Dakota's Bakken shale fields to a refinery in southern Illinois, was initially meant to pass near Bismarck, the predominantly white and affluent capital of North Dakota. But in response to local opposition and concerns about contamination of the city’s water supply, the pipeline was rerouted to cross within a mile of the Standing Rock Sioux Reservation's northern boundary—transferring the risks of a leak from Bismarck to the relatively impoverished and almost exclusively indigenous reservation community. This situation echoes that in Flint, Michigan, where it was a poor African American town that was subjected to toxic levels of lead in its drinking water. This would not have been tolerated by a community that commands more political power.

Unlike the community in Flint, the Standing Rock Sioux had some warning of what was to come. The tribe has been voicing its opposition to the pipeline since 2014 to no avail, and it sued the Army Corps of Engineers in the summer of 2016 in a last-ditch effort to stop the pipeline, alleging that the tribe had not been meaningfully consulted about the project. Although the federal judge overseeing the case has expressed sympathy with the tribe’s position, he has so far denied its requests for the project to be halted while the litigation unfolds. It was only after months of high-profile protests that the Army Corps of Engineers responded by suspending work on the pipeline. And thus, even though the legal system has so far failed these Native Americans, the immense outpouring of grass-roots support for Standing Rock achieved a modicum of victory. 

But within days of assuming office, Trump signed executive memorandums to revive the Dakota Access Pipeline and the Keystone XL Pipeline, the construction of which President Barack Obama rejected in 2015. Trump also issued an order aimed at expediting environmental reviews for “high priority infrastructure projects,” essentially easing the process for businesses to pursue such projects and raising the bar for those who oppose them. Trump’s aggressive reinstatement of the Dakota Access Pipeline project has undermined the Standing Rock Sioux’s right to a proper review of the project’s impact on its treaty rights, sacred sites, and water supply—exactly what would have been provided by the EIS. The Trump administration’s sudden cancellation of the EIS led members of the Senate Committee on Energy and Natural Resources and the House Committee on Natural Resources to express alarm: “This blatant disregard for federal law and our country’s treaty and trust responsibilities to Native American tribes is unacceptable,” the lawmakers wrote to the president. “We strongly oppose this decision and any efforts to undermine tribal rights. We urge you to immediately reverse this decision and follow the appropriate procedures required for tribal consultation, environmental law, and due process.”

Although Trump claims that the pipeline will help create much-needed jobs and promote energy independence, his ardent support for it reinforces concerns about possible conflicts of interest. Assertions of the pipeline’s benefits have been overstated: the Brookings Institution has estimated that only 40 jobs associated with the pipeline will be permanent, and a report by the Institute for Energy Economics and Financial Analysis argues that the Bakken oil infrastructure is already overbuilt. Meanwhile, Kelcy Warren, the CEO of Energy Transfer Partners, the pipeline developer, donated more than $100,000 to the Trump campaign. And Trump himself reported investments of between $500,000 and $1 million in the various companies constructing the pipeline, which, according to a spokesperson, Trump has since sold, although he has declined to offer proof. A petition, which has already garnered nearly 235,000 signatures, is now asking Trump to prove that he does not have any conflict of interest in ordering the pipeline to move forward, but the White House has so far ignored the request. Unsurprisingly, Trump has also populated his cabinet with people who have close ties to the fossil fuel industry, are skeptical about climate change, and are hostile to environmental regulation.

In justifying his executive action reviving the Dakota Access Pipeline, Trump blatantly ignored the widely reported public opposition, saying that he hadn’t “had one call” about the pipeline. “I don’t even think it was controversial,” he later added, in spite of the fact that there was a highly publicized, months-long gathering of tens of thousands of “water protectors” at Standing Rock. Trump also neglected to acknowledge that the White House comment line has been shut down since his inauguration or that after the Army Corps of Engineers notified the public on January 18 that it was preparing an EIS, concerned citizens submitted hundreds of thousands of comments calling for a thorough review of the pipeline’s impacts.

North Dakota, too, has moved quickly to rally behind its oil interests. The state’s House legislators approved a bill eliminating the requirement for oil companies to report small spills. Additional bills target protesters, including increasing penalties for protest activities, part of a nationwide trend of cracking down on dissent. And raising the specter of further incursions into tribal sovereignty, another bill proposes a resolution urging the U.S. Congress to vest the states with authority over Native American tribes, which many perceived as an attempt to wrest control over tribal resources from Native Americans, an attempt masquerading as a benevolent initiative. Similarly, during the presidential transition, Trump advisers expressed support for the privatization of Native American reservations, which would make it easier to exploit their resources. Such a controversial move would dredge up long-simmering historical grievances. As Tom Goldtooth, the executive director of the Indigenous Environmental Network, told Reuters, “Our spiritual leaders are opposed to the privatization of our lands, which means the commoditization of the nature, water, air we hold sacred. Privatization has been the goal since colonization—to strip Native Nations of their sovereignty.”

The encampments that drew thousands of protesters have dwindled, in part owing to the brutal North Dakotan winter and threats of spring flooding, and in part because the tribe has asked the water protectors to continue the fight in their own communities. Those who remain are determined to stand their ground, but the February 22 evacuation deadline has stoked worries about a brutal eviction.

Nevertheless, the opposition from tribes and environmental activists continues, both in the courts and on the streets. The Standing Rock, Cheyenne River, and Oglala Sioux Tribes filed separate challenges in court after the easement was granted, which include arguments that the decision to cancel the Army Corps of Engineers’ EIS was without justification and that the easement violates the tribes’ treaty and religious rights. “In this arbitrary and capricious reversal of course, the Trump Administration is circumventing the law: wholly disregarding the treaty rights of the Standing Rock Sioux and ignoring the legally required environmental review,” said Jan Hasselman, an attorney with Earthjustice who is representing the tribe. “It isn’t the 1800s anymore—the U.S. government must keep its promises to the Standing Rock Sioux and reject rather than embrace dangerous projects that undercut Treaties.”

Pipeline opponents are also fighting the prosecution of more than 700 water protectors who were arrested while praying or protesting peacefully and yet were charged with crimes ranging from trespassing to rioting, along with serious felonies. Human rights groups have condemned abusive law enforcement tactics, including the use of excessive force and imprisonment under inhumane conditions. Defense attorneys have also decried violations of fair-trial rights, saying that the prosecutor in the cases has sought to influence the jury pool by maligning those charged. A survey by the National Jury Project found that the vast majority of the juror-eligible populations in Morton and Burleigh Counties, 77 percent and 85 percent, respectively, had already determined that the defendants were guilty. And yet defense motions for a change of venue have so far been denied. The state is not alone in cracking down on protesters. Several water protectors are facing federal charges, and civil rights advocates are alarmed that agents from the FBI’s Joint Terrorism Task Force are investigating the protesters’ activities, which misleadingly signals that the protesters are akin to domestic terrorists. This chills free speech and further fuels the militarization of law enforcement. 

As the battles are waged in court, additional protests have broken out across the country. The oil industry has taken notice, fearing that opposition to pipelines will hurt business and anticipating that this movement and its associated protests will only grow in frequency and intensity. The industry is right to worry. With increasing evidence of the deleterious impacts of climate change, activists are motivated by a sense of urgency in moving away from fossil fuel dependency, and a reinvigorated indigenous rights movement is determined to protect indigenous land, religion, and sovereignty. Although they have garnered less attention, there are ongoing direct-action protests against other pipelines, including the Trans-Pecos Pipeline in Texas and the Sabal Trail Pipeline, set to traverse Alabama, Georgia, and Florida.

Activists are pressing other forms of resistance, too, including a robust international divestment campaign aimed at the Dakota Access Pipeline’s financers. Individual pipeline opponents have reported collectively divesting more than $67 million from banks with investments in the pipeline. And a group of investors representing $653 million in assets wrote to 17 banks that are funding the project, urging them to address or support the tribe’s request that the pipeline be rerouted. They expressed concern that “banks with financial ties to the Dakota Access Pipeline may be implicated in these controversies and may face long-term brand and reputational damage resulting from consumer boycotts and possible legal liability.” Other tribes and municipalities have followed suit. The Seattle city government voted to divest $3 billion from Wells Fargo because of its role as a funder of the project, as has the city of Davis, which is divesting $124 million from the bank. New York Mayor Bill de Blasio also expressed concern about Wells Fargo’s involvement in the pipeline and has suggested the bank withdraw its financing. “The threat this project poses to Standing Rock, our environment, your bank, and your shareholders,” he said, “is not worth the return it might generate.” The banks are clearly feeling the pressure. The Dutch bank ING responded by expressing its concern about the project but noted that it is contractually obligated to fulfill its loan commitments. Given the uproar, banks are likely to be more diligent in the future in assuring that the projects they fund do not ride roughshod over the rights of the affected communities.

Many Native Americans have little confidence that their rights will be upheld in a legal system that has consistently failed to protect them, although activists have shown that they will continue to pursue all available remedies in seeking justice. With the Trump administration’s determination to eviscerate environmental protections and promote fossil fuels, the battle against pipelines and other infrastructure projects will be even more difficult to challenge legally. And although the operation of the Dakota Access Pipeline would be a crushing blow to the Standing Rock Sioux Tribe and its supporters, it would not end the emboldened movement that Standing Rock has inspired. So while the administration may well prevail in the tribe’s federal lawsuit, Trump will not so easily win in the court of public opinion.

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  • LAUREN CARASIK is Clinical Professor of Law and Director of the International Human Rights Clinic at Western New England University School of Law. She has traveled to Standing Rock to provide legal support for the water protectors.
  • More By Lauren Carasik