Standing Rock: Understanding the EIS Process

It’s time to comment on the Environmental Impact Statement (EIS) for the Dakota Access Pipeline (DAPL).  The deadline is February 20.  Here’s what you need to know.

First, Trump’s “executive order” did not automatically approve the pipeline (and it’s actually just a memo to the Army).  More on that below.  First and foremost, the EIS process is still alive.

The EIS Process

The EIS process is a long one, taking many months (and often years).  This is just the first public comment opportunity, focusing on what issues should be studied. Here is how it is supposed to work:

The EIS is done by the permitting agency, in this case the US Army Corp of Engineers. Here’s what’s involved with each step:

• Notice of Intent (NOI)
  • This is the initial announcement, essentially informing the public that they are going to do an EIS. They are asking the public for suggestions about what issues they should consider.
  • The official title of it is Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC’s Request for an Easement To Cross Lake Oahe, North Dakota. This tells us they are focusing only on the crossing of the Missouri River; they are not asking for our opinions on the pipeline as a whole.  (An EIS should have been done years ago before they selected a route. See this post for more on DAPL’s “trail of broken laws”.)
  • The NOI is short, but here’s the key text:

This notice opens the public scoping phase and invites interested parties to identify potential issues, concerns, and reasonable alternatives that should be considered in an EIS.

Consistent with CEQ’s NEPA implementing regulations, an EIS will analyze, at a minimum:

(1) Alternative locations for the pipeline crossing the Missouri River;

(2) Potential risks and impacts of an oil spill, and potential impacts to Lake Oahe, the Standing Rock Sioux Tribe’s water intakes, and the Tribe’s water, treaty fishing, and hunting rights; and

(3) Information on the extent and location of the Tribe’s treaty rights in Lake Oahe.

The range of issues, alternatives, and potential impacts may be expanded based on comments received in response to this notice and at public scoping meetings.

• • This is interesting because they are starting with three issues already, but they are asking us for more information on those, plus any additional issues that we (the public) might raise.
  • See below for suggestions on how to comment on this; I now return to the EIS overview.

• Draft EIS
  • After the Army Corp receives the public comments on the scope of the EIS (i.e. our comments on the NOI above), they commence the study in earnest, examining all the issues. They will examine “all reasonable alternatives”, but they may or may not present their “preferred alternative”. Here is what is supposed to happen: “The draft EIS provides a detailed description of the proposal, the purpose and need, reasonable alternatives, the affected environment, and presents analysis of the anticipated beneficial and adverse environmental effects of the alternatives.” They also must include a “no action” alternative.
  • In this case, the alternatives will probably be various locations where DAPL can cross the Missouri River (nearly all of which are upstream of the reservation). I assume the “no action” alternative would be no crossing at all, so no pipeline. The section on environmental consequences must include potential mitigation measures to lessen the impacts of any alternative, such as automatic shut-off valves, regular pipeline inspections, and spill response preparedness.
• Final EIS
  • This takes into account the public comments, makes revisions to the Draft EIS, specifies a “preferred alternative”, and is the final decision.
• ROD
  • This is just the final paperwork, coming 30 days after the release of the Final EIS.

Important DAPL Documents

Here are documents that everyone should be aware of:

• Energy Transfer Partner’s Route Permit Application to the State of North Dakota (December 2014)
  • This was prepared just for North Dakota, but it’s noteworthy because it contains the map of the old route near Bismarck, as well as the new route near Standing Rock (on page 22 of the document). Each route is dated (May 29, 2014, and September 29, 2014, respectively), proving that the pipeline route was changed before there was any EA or EIS or Tribal Consultation.  The company contacted the Tribe a few days after changing the route.  At that time, the Army Corp had not contacted the Tribe at all.
  • The Route Permit listed these justifications for the pipeline:
    1. It will improve overall safety to the public and environment because it provides an alternative to shipping crude by rail.
    2. It will play a role in increasing America’s energy independence.
    3. It will create another reliable transportation route for crude oil from the Bakken.
    4. It will ease transportation constraints for agricultural products (again, because it frees up rail).

Note that all of these arguments are now irrelevant because Bakken production has declined to the point where nearly all production fits inside pre-existing pipelines.  The price of oil is expected to stay low thru 2024. In the meantime, production from West Texas is flooding world markets and lowering the price of oil.

• US Army Corp’s original Environmental Assessment (EA)– and resulting Finding of No Significant Impact (FONSI) (July 25, 2016)
  • This is basically the little brother of an EIS, done when environmental impacts are unlikely, so this is what the Army Corp did before they realized the degree of objection from the Tribe.
  • The EA looked at a number of alternatives: various routes, moving the oil by trucks or rail, etc. but spent most of its time comparing the “North Bismarck” route to the “Lake Oahe” route.  It states on page 8, “due to the proximity to Bismarck, the North Bismarck route alternative crossed through or in close proximity to several wellhead source water protection areas that are identified and avoided in order to protect areas that contribute water to municipal water supply wells.”  After rejecting the North Bismarck route, the EA’s “preferred alternative” is the Lake Oahe route, which is “approximately 0.55 mile north of the northern boundary of the Standing Rock Sioux Reservation.”  Despite this, in their review of Environmental Justice requirements (page 84), the EA makes no mention of the reservation at all.  Instead, it argues that minority and low income communities along rail lines would suffer if the pipeline is not built, because they live along rail lines, and would be subject to crude-by-rail rolling past their homes.  Thus, the pipeline would spare them this fate. This, of course, is not true.  In light of declining Bakken production and pre-existing pipelines, rail is not needed as a replacement for DAPL.
  • The EA made several other surprising statements:
    • “There is the potential for daily production in excess of 570,000 barrels per day in the Bakken and Three Forks production area, but there is no existing pipeline infrastructure sufficient to transport that volume of crude oil from North Dakota to the refineries.” This is false on all counts.  Bakken production is about 900,000 barrels per day (bdp); it was over 1 million bpd when this was written. There are six pre-existing pipelines transporting oil out of North Dakota, with a total capacity of 767,000 bpd.  Add to that two local refineries with a total capacity of 88,000 bpd, and there is a total “take-away capacity” to handle 855,000 bpd of Bakken production, which is just shy of current production, which is declining.
    • “The Standing Rock Sioux Tribe (SRST) and other tribal governments object to the pipeline and its alignment because the proposed route crosses under Lake Oahe a few miles upstream of the SRST water intakes. Tribes are concerned that a leak or rupture would contaminate the river, including the SRST’s drinking The tribes argue the District did not adequately consult on the DAPL pipeline alignment. The EA establishes that the District made a good faith effort to consult with the tribes and that it considered all tribal comments.” In short, the Army Corp completely dismisses SRST.  In fact, tribal consultation did not begin until after final route selection, which was after the route was moved away from Bismarck.  When the Tribe objected, the consultation quickly ended.
    • “Tribes are also concerned that the installation of the pipeline and a potential leak or rupture could damage or destroy cultural and sacred resources in the area… The Corps conducted formal government-to-government consultation with tribal representatives via meetings; site visits; distribution of pertinent information; conference calls, and emails in order to inform tribal governments and private members, and to better understand their concerns… Ultimately, the District made a “No Historic Properties Affected” determination.” In fact, the SRST made it clear back in 2014 that they would need to be closely consulted about sacred sites, because the relevant databases were incomplete.  This never occurred. When the pipeline route was being excavated, the SRST informed a judge of the sacred sites, providing lat-long coordinates. These were passed on to DAPL, who deliberately plowed the sites the following day. This led to the incident with the security dogs attacking the protesters.
  • The EA does not mention climate change, even in the “cumulative effects” section, as it assumes the Bakken production will be produced and transported to market with or without the pipeline.

• US Army Corp’s Notice of Intent (NOI) for the Environmental Impact Statement (EIS) (January 18, 2017)
  • This is what we are commenting on by February 20. It’s quite short and summarized above in the box.  See below for tips on how to comment.

• Trump’s Presidential Memorandum on the pipeline (January 24, 2017)
  • The memo is to the Secretary of the Army, who oversees the US Army Corp of Engineers, who is overseeing the EIS process. It orders the following:
    • Review and approve DAPL “in an expedited manner”;
    • Consider whether to withdraw the NOI for the EIS;
    • Consider the EA as having satisfied the law;
    • Issue the needed easements immediately.
  • One interesting aspect of the memo is that it says, for each directive, “to the extent permitted by law and as warranted.” That’s because, with an active EIS process underway, scientific study is supposed to guide the decision-making. The memo is “pre-decisional”—it’s telling the Army Corp what alternative to choose before the EIS has been completed. This is illegal. Should the Army Corp go ahead and chose the crossing at Lake Oahe, as ordered by Trump in the memo, and as we all fully expect them to do, they will be subject to legal challenge.
  • Like many of Trump’s “executive orders”, this was more of an extra-legal publicity stunt, creating notoriety for him and chaos for us.

Commenting on the NOI for the EIS

The question posed by this EIS is: Where shall it cross the river?  But the main question posed by the NOI, which we are commenting on now, is: What issues should we consider?

If you make an emotional plea against the pipeline, they will disregard your comment.  You must provide constructive suggestions for what issues they should study.  Ideally, you justify your suggestion with new data that was not available during the EA. 

They’ve already started with three issues they say are already on their list:

1. Alternative locations for a river crossing;
2. Oil spill risk, and especially risk to the Standing Rock Sioux Tribe’s water intakes, and water, fishing, and hunting rights;
3. Information on the Tribe’s rights in Lake Oahe (which presumably will be provided by the Tribe).

With respect to 1), there are obviously hundreds of places to cross the river.  The only other site under consideration, the North Bismarck route, was rejected by the EA for a variety of reasons, foremost of which was the threat to Bismarck’s water supply. Obviously, any review of alternative locations should include an evaluation of threats to all water supplies, and Environmental Justice considerations should not be ignored.

With respect to 2), new data on oil spill risk is created with each new spill.  Here are some relevant ones, large spills in the region, most of which have been along Missouri River tributaries (with links to the latest news about them):

• January 25, 2017, Worth County, Iowa, pipeline break, 138,000 gallons spilled
• December 5, 2016, near Belfield, North Dakota, pipeline break into Ash Coulee Creek (tributary of Missouri River), 200,000 gallons spilled
• January 18, 2015, near Glendive, Montana, pipeline break into Yellowstone River (largest tributary of Missouri River), 50,000 gallons spilled
• July1 , 2011, near Laurel, Montana, pipeline break into Yellowstone River, 63,000 gallons spilled.

This discussion of spill risk might also be another good starting place.

With respect to 3), I’ll defer to SRST to answer that.

Finally, they ask for additional issues or alternatives.  I’m going to raise the issue of economic impacts on the other six pre-existing pipelines and potential loss of jobs associated with those. Should DAPL be built, it could essentially steal the oil from four of the other six pipelines, resulting in job losses associated with those pipelines.  The fact is that, with Bakken production declining, DAPL is not needed.  This can only be addressed via a no-pipeline/”no action” alternative.  DAPL only creates more river-crossings and risk.  Thus, a no-pipeline/”no action” alternative should acknowledge the reality of the pre-existing pipelines.

I will post my official comments in a few days.

[Everybody check out the links in the comments section.  There’s some good stuff there.]

Finally, instructions!

You may mail or hand deliver written comments to Mr. Gib Owen, Office of the Assistant Secretary of the Army for Civil Works, 108 Army Pentagon, Washington, DC 20310-0108. Advance arrangements will need to be made to hand deliver comments. Please include your name, return address, and “NOI Comments, Dakota Access Pipeline Crossing” on the first page of your written comments. Comments may also be submitted via email to Mr. Gib Owen, at gib.a.owen.civ@mail.mil. If emailing comments, please use “NOI Comments, Dakota Access Pipeline Crossing” as the subject of your email.