When the Army Corps of Engineers announced Monday that it would consider alternate routes for the Dakota Access Pipeline, a looming reality tempered the celebrations at Standing Rock: Everything could change when Donald Trump takes office on Jan. 20.
Even before the announcement, the U.S. president-elect’s team said he supported completion of the oil pipeline project, running from North Dakota to Illinois. But if Trump wants to reverse the Army Corps’ decision, it won’t be quick or easy.
The Corps has ordered a full environmental impact statement under the National Environmental Protection Act, which would take a minimum of 100 days, according to Zygmunt Plater, an environmental law professor at Boston College. The statement will assess the potential environmental effects of the pipeline and inform future decisions. It’s not possible to backtrack that process, Plater added.
Phillip Ellis, a spokesperson with Earthjustice, the law firm backing the Standing Rock Sioux Tribe leading the large pipeline-resistance movement, expanded on Plater’s timeline: “[Trump] can’t just snap his fingers,” he said. “We’re talking a year or years, as opposed to months or weeks.”
To bypass the environmental impact statement, Plater explained, Trump would have to pass a bill to exclude the Dakota Access Pipeline from the National Environmental Protection Act, created under President Richard Nixon in 1970. While any Democrat could filibuster, Congress and the presidency will be Republican-controlled.
A coalition of Midwest industry groups also appealed to the president-elect Monday to make granting the pipeline’s easement a top priority. The easement, which the Army Corps refused to grant, acts as a permission slip for the pipeline to pass under Lake Oahe, on the east side of the Standing Rock Indian reservation in North Dakota. Standing Rock protesters, who call themselves “protectors,” fear that path would put the water downstream at risk.
Trump’s spokesperson Jason Miller, however, told the Associated Press on Monday that the administration will review the situation before making any moves.
In its decision not to grant the easement, the Army Corps found that further analysis was warranted “in light of the … Mineral Leasing Act’s direction to protect the environment, those who rely on fish and wildlife in the area for subsistence, and the public.”
Those findings can be reversed only by counter findings, Plater explained. The Army Corps’ decision can’t be undone by “the narcissistic swipe of a pen,” he said.
In her rationale for rejecting the easement and considering alternate routes, Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy wrote that the National Environmental Policy Act “requires that federal agencies consider reasonable alternatives” in conflict situations like Standing Rock. The Council of Environmental Quality also advised that in cases where environmental effects on tribal resources are at stake, federal agencies should look elsewhere.
The Corps is considering alternate points where the pipeline could cross the Missouri River, including the crossing originally discussed, about 10 miles north of the North Dakota capital Bismarck.
In a statement, the Sacred Stone camp raised the question of whether the Corps will consider a “no build” option. The Corps has never said it would consider quashing the pipeline entirely — and that’s an unlikely option.
Meanwhile, time is running out for the companies behind the pipeline.
In a previous affidavit, the companies said they needed to have the pipeline up and running by Jan. 1, 2017, in order to avoid the risk of losing out on their contracts. In court filings, they also reported losing more than $450 million due to Army Corps delays and that further delays would cost tens of millions more each month.
On Nov. 15, the companies filed U.S. federal court applications asking a judge to declare they have a legal right to drill under Lake Oahe and can ignore the Corps’ decision to not grant an easement. Without the Army Corps’ easement or a judge’s ruling allowing the company to drill, construction under the lake can’t go forward.
Despite fears from anti-pipeline protesters that drilling will proceed regardless, the Corps told VICE News in November it will take “enforcement action” if the companies behind the pipeline drill more than 200 feet toward the lake.
One thing is clear, however: The resistance camp isn’t moving.
“While this is clearly a victory, the battle is not ‘over,’” the Sacred Stone camp wrote in a statement Sunday night. “Organizers continue to call for every day of December to be ‘a day of #noDAPL action’ against the investors of the Dakota Access Pipeline. Over 100 solidarity actions worldwide have already been registered for the coming weeks as the encampment continues to stand their ground.”
Before the decision on the easement, the Army Corps had pegged Dec. 5 as the date it would close federally controlled land used as the main Standing Rock encampment. Now that the bitter Plains winter has arrived, North Dakota’s governor has called for an evacuation. Authorities, however, said they won’t forcibly remove protesters.