On his first day in office, President Biden cancelled the Keystone XL pipeline, asserting the permits issued under the Trump administration were illegal, as they did not fulfill the requirements of the Clean Water Act. Now climate activists are pressing Biden to cancel a similar tar sands pipeline from Canada, called Line 3, and to shut down the Dakota Access pipeline, or DAPL. The fight over that pipeline brought thousands of indigenous people and their allies from all over the hemisphere to engage in protest and civil disobedience alongside the Standing Rock Sioux tribe in 2016.
One of Donald Trump’s first actions in office was to reverse President Barack Obama’s order halting construction of the Dakota Access pipeline, and oil began flowing in mid-2017. Since then, the tribe represented by the public interest environmental law firm Earthjustice, has won two court victories declaring that Energy Transfer, the company that runs the Dakota Access pipeline, must shut it down pending a thorough Environmental Impact Statement. But the company continues to operate the pipeline in defiance of those rulings.
Between The Lines’ Melinda Tuhus spoke with Jan Hasselman, the Earthjustice staff attorney representing the tribe, who talks about the latest developments and the chances for victory under the Biden administration.
JAN HASSELMAN: The D.C. Circuit Court of Appeals, which is the second highest court in the country below the Supreme Court, affirmed a few weeks ago that the pipeline permits were issued illegally without the environmental review required by law and that were serious concerns about the safety of the pipeline and its potential impacts on the people of the Standing Rock Sioux tribe. The court further agreed that the lower courts properly vacated the permits, in other words, there is no permit for the DAPL to cross the Missouri River right now. However, rather than shutting down the pipeline itself, the court said it is the obligation for the administration to figure out what it’s going to do about this illegally operating pipeline. And that makes sense, because now that the legal issues have been resolves, this issue is better solved through the political process rather than a continued process of lawsuits and appeals.
So, the judicial system basically handed the question back to the administration of “What are you going to do about this illegally operating pipeline?” And there is only one answer to that question: Shut it down. The court ordered a full environmental review of the pipeline’s safety. That’s going to take about a year. And it just doesn’t make sense to allow something to keep operating while you study if it’s safe enough to keep asking, which is what the pipeline [company] is asking. So, we are turning to the Biden administration, which has done terrific early actions on both climate as well as indigenous sovereignty and justice, and saying, Look, there’s only one answer here. Shut this thing down while we go through the permitting process in a lawful manner.
MELINDA TUHUS: There was an important hearing scheduled for Feb. 10?
JAN HASSELMAN: At this point, there are no new Biden administration officials in charge of the U.S. Army Corps of Engineers, and the Trump-era holdovers are still running the agency. So it makes sense that the new administration has some time to get new appointees in place and to figure out how it wants to handle this issue, which is going to be different from the previous administration, which of course violated the law in the first place by authorizing the pipeline and cancelling the environmental review that was started in the Obama administration. So, we’re not happy that the pipeline continues to operate illegally, but we do think it’s reasonable to give the new administration some time to sort out what it wants to do here.
MELINDA TUHUS: Jan Hasselman, indigenous folks and climate activists are saying to President Biden, it’s great that you stopped the Keystone XL pipeline — which was pretty moribund already — but you need to also stop the Line 3 tar sands pipeline from Alberta, Canada, currently being built through northern Minnesota across indigenous lands, and the Dakota Access pipeline, which goes from the oil fields of western North Dakota across three states. So they’re not exactly the same, but does it make sense to package them together, do you think?
JAN HASSELMAN: I think each of the pipeline fights are unique, and the requests to the administration are not being bundled as a single ask. There are obviously parallels between them, most notably the impacts on indigenous people and tribes and tribal members. What’s been encouraging has been the early actions that this administration has taken to support trial sovereignty, and his appointment of Deb Halaand as Secretary of the Interior sends a very strong message that he intends to take those issues seriously. But these pipeline battles will be an early test of their seriousness and commitment to those issues.
MELINDA TUHUS: You’ve been working with the Standing Rock Sioux tribe on this fight for years, through the administrations of two tribal chairmen. Can you share anything about how the people are feeling at this point? Do they feel vindicated? Are they holding their breath til the end? Do they think they will win in the end?
JAN HASSELMAN: What’s been so impressive to me about my client, the Standing Rock Sioux Tribe, is how they have never wavered.They have never backed down. They have never given up hope that they will prevail in this fight despite extraordinarily long odds, despite the catastrophic election of Donald Trump, despite everybody in the world telling them that there was no way in the world they could win this fight. And through prayer and determination they have held the line and here we are. We are at the cusp of shutting down this pipeline, which should never have been permitted in the first place. And, yeah, they’re optimistic that they’re going to win this fight and they’re not going to stop fighting until they do.
For more information on Earthjustice’s DAPL Action, visit earthjustice.org/