A Voluntary Pause On the Dakota Access Pipeline

Native Americans have found an unexpected ally in the generations-long fight for the preservation of their traditional homelands — the United States government.

In a stunning turnabout, it was the cavalry that came to the rescue of the Standing Rock Sioux. Only minutes after U.S. District Judge James Boasberg rejected their petition to stop an oil pipeline from being laid near their reservation, three federal agencies together appealed to the company building the Dakota Access oil pipeline for a “voluntary pause” while Washington rethinks the way the Native Americans have been treated.

The Departments of Justice, Army and Interior said they would “reconsider any of its previous decisions” on the land in question, which opponents say could imperil the community’s water source and damage burial grounds.

The unprecedented government intervention could have ramifications not only for Dakota Access, but for projects across the country for years to come. The federal departments said the case “highlighted the need for a serious discussion” about nationwide reforms “with respect to considering tribes’ views on these types of infrastructure projects.”

While public hearings and environmental impact studies on major projects are mandatory, the rights of indigenous people have often been ignored, as is claimed in this case. Lobbyists for every endangered species of flora and fauna have a powerful say in planning and construction, but the spokesmen for Native American tribes, whose populations have also been decimated by the march of “progress,” are barely listened to, if at all.

Now, that is likely to change. Dallas-based Energy Transfer Partners wanted to finish the $3.8 billion pipeline to carry oil from North Dakota to Illinois by the end of this year. The “pause” of undetermined duration upsets that schedule. The company told the court that stopping the project would cost it $1.4 billion the first year, mostly in lost revenue in hauling crude.

Industry consultant Brigham McCown, a former official of the federal Pipeline and Hazardous Materials Safety Administration, said the Obama administration’s involvement has “changed the lay of the land forever” for infrastructure projects.

“This could bog down or delay every single infrastructure project moving forward,” he said. “I don’t think they even realize the can of worms they’ve opened.”

To be sure, it’s not a simple issue, as shown by the court ruling that Dakota Access had acted in compliance with the law, had in fact consulted with the tribe in the planning stages.

But the local residents say that their views were not taken into consideration. And environmental groups have joined opponents of the project because of the concern that oil leaks or spills could ruin local drinking water.

For the Native American activists, it is also a matter of insisting on their “tribal sovereignty,” and what is supposed to be a “government-to-government” relationship with Washington, as opposed to the perfunctory consultations that normally obtain.

Then there is the issue of religion. The tribe claims that the pipeline would run through a stretch of land north of the reservation that contains recently discovered sacred sites and burial places.

In its official statement issued on Friday, the Justice Department referred only to “important issues” raised by the Standing Rock Sioux. But the sites sacred to the petitioners are clearly among those issues.

In the demonstrations at the pipeline area where thousands have come to protest the project, people marched behind a banner reading “Defend the Sacred.” It is remarkable, to say the least, that the elites in the government and the environmental movement who routinely disdain religion (albeit for the most part in private) are here willy-nilly on the side of those who are “defending the sacred.”

While our concept of sanctity is certainly different from that of the Standing Rock Sioux tribe, the case could contribute to a strengthening generally of the claims of religious groups in America to recognition and respect.

As important as are the rights to uncontaminated drinking water and to effective representation, so is freedom of religion.

By law, any federal agency overseeing a construction project must consult with native nations or tribes if there are places with “religious and cultural significance” nearby. In this case, the Army Corps of Engineers had that duty, and decided to revoke authorization for Dakota Access on land under its control, notwithstanding the court ruling.

In response, Dakota Access has promised that it will employ “new advanced pipeline technology” to limit leaks, and that it will take care to avoid damaging any religious sites. The governmental agencies cannot dismiss that undertaking out of hand. They will have to examine it carefully. It may be that with prudent guarantees — and full consultation with the tribe — the project can go forward. Failing that, there is still the option of rerouting the pipeline, though at heavy additional cost.

The stakes are very high, both for America’s energy needs and for the rights of its citizens. A way should be found to move the fossil fuels out of the ground without poisoning the water or uprooting the spiritual heritage of American citizens.