Confidential Memo: Dakota Access LLC Knowingly Dismissed Standing Rock Impacts

For months, the Standing Rock Sioux Tribe urged the U.S. Army Corps of Engineers to write a comprehensive assessment of the impact the Dakota Access Pipeline (DAPL) and a potential spill under the Missouri River could have on North Dakota’s poorest indigenous community.

After the Corps released an Environmental Impact Statement in August of last year, the tribe stepped up its efforts even further. It charged that the report’s controversial conclusion -- “the proposed [pipeline] would not disproportionately affect identified minority or low-income populations” (3.10.2.2, pg. EA-72) -- reflected the partisan views of the pipeline company, Dakota Access LLC, and wasn’t accurate.

Well, it turns out they may have been right. According to court records, it appears the source of that social justice analysis wasn’t the Army Corps of Engineers (which is responsible for overseeing and signing off on any critical decisions that would affect the pipeline’s approval), but the applicants themselves: Dakota Access LLC and its contractor, HDR Inc.

A confidential memo addressed to the Corps from Dakota Access’ senior project director Tom Siguaw and the company’s contractor, HDR Inc., outlines the research the companies took to make the above conclusion.

Rather than looking at the tribe’s economic status and the impact an oil leak could have on the community’s drinking water access and agricultural needs (the pipeline is due to cross underneath the tribe’s only water source), it used comparisons of other low-income communities in the state to defend its argument that there were no environmental justice concerns. The pipeline, the authors justified, would “cross less than the overall state average of 12 percent of impoverished populations, concluding that the pipeline does not disproportionately impact low-income or impoverished populations.”

The memo also stated, as a point of defense, that the current route would impact 1 percent fewer Native Americans and Alaska Natives than a formerly considered route, which passed by white, upper-income communities near Bismarck. “[The] impacts [of the current route] are less proportionate to Native Americans than non-minorities or other minorities. Therefore, there is no basis or conclusion of an [environmental justice] claim to Native Americans related to the preferred route.”

The assessment, which was then largely wrapped into the Army Corps impact statement, excluded data describing the localized impact an oil leak would have if it were to occur under the Missouri River.

“They've gerrymandered the things they are comparing in the analysis to reach an absurd result, which is that the selection of the Oahe crossing instead of the Bismarck route doesn't have environmental justice implications,” attorney Jan Hasselman told Inside Climate News.  Hasselman is representing the Standing Rock Sioux through the legal organization Environmental Justice.

The memo, and the data used to support the pipeline’s route, has become a centerpiece example for activists who maintain that Native Americans -- and specifically North Dakota native communities -- are disproportionately mistreated when it comes to grievances, job access and economic opportunities.

Compared to the largely white, upper-income residential populations of North Bismarck, the Standing Rock Sioux Tribe remains the poorest community in the state, with unemployment rates that have hovered between 40 and 80 percent. Most of its employment base is in the service sector, but farming still plays a significant part in the community’s survival and could be wiped out in the event of an oil leak.

But Dakota Access LLC’s memo isn’t the only reason why Standing Rock’s economic and cultural representation was overshadowed in this report.

The Army Corps–St Louis’ statement included a summary of potential environmental justice impacts, but disregarded the Standing Rock and Cheyenne River Sioux as adversely affected because the pipeline crossed near their property and under their water source, but didn’t cross their land.

The Corps also spelled out its responsibilities in terms of an environmental assessment, which it saw as only “the crossings of [Corps-St. Louis District] projects and flowage  easements that would require consent by [the District] (pg. 119).”

While the confidential memo to the Corps acknowledged the existence and the water rights of the Standing Rock Sioux, the tribe was never given a copy. And the Army Corps’ final EIS failed to mention that a reservation of more than 8,000 relied exclusively on the Missouri River for its water.

Standing Rock injunction to stop DAPL rejected by courts

With the latest court decision, prospects look dim for the tribes' efforts to stop the pipeline’s operation -- at least for now. On Tuesday U.S. District Court Judge James Boasberg rejected a request for an injunction from the two tribes, giving the go-ahead for the final stages of the pipeline. The project could be operational by next week.

The Standing Rock Sioux released a statement discounting the impact of Tuesday’s ruling on their case.

“While this preliminary ruling is disappointing, it’s not surprising. It is very difficult to get an injunction in a case like this. The bigger legal battle is ahead – we stand strong,” said Standing Rock Sioux Chairman David Archambault II.

The tribe is challenging the pipeline’s approval on two counts: the lack of a complete EIS and treaty rights, which the tribe said were recognized by former President Barack Obama when he ordered a stop to the pipeline in December.

The outcome of the tribes’ suits may say a lot about how this new administration – and, by extension, the courts – regard environmental justice as a valid as an entitled right. But it also offers a warning flag to communities that expect  environmental impact statements to unilaterally reflect the strength of a just cause.

It would seem that in today’s politicized climate, pipelines and environmental assessments can occasionally share similar pathways to completion.

Image credit: Flickr/Irina Groushevaia