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An increasingly bitter dispute over the Dakota Access Pipeline — particularly in the wake of Donald Trump’s election to president — has been fraught with controversy in recent months as construction nears completion.

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Approval for Energy Transfer Partners’ construction of the pipeline — which will transport North Dakota sweet, light crude to a hub in Illinois and ultimately out to foreign nations via the Gulf Coast — continues to baffle opposition, who views its planned route under the Missouri River as inherently threatening to the drinking water supply of the Standing Rock Sioux Tribe and millions downstream.

As a lawsuit brought by the Standing Rock Sioux against the U.S. Army Corps of Engineers languishes in federal court, however, it’s imperative to examine precisely why Dakota Access came to fruition in the first place.

Contention over Dakota Access, however, didn’t begin in earnest until early 2016, despite the project garnering approval two years before — and the reason for that discrepancy illustrates how few obstacles bar Big Oil from construction projects which would otherwise be deemed too risky.

A little-known, and perhaps deeply flawed, permit stipulation grants approval for even lengthy pipelines — Dakota Access will stretch 1,172 miles and span four states — without a conditional environmental impact statement encompassing the entire project.

Put simply, the Army Corps only has to grant approval for sections of pipeline which will affect bodies of water and wetlands — but isn’t required to assess those segments as a connected whole.

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Thus, Dakota Access went from formal proposal to breaking ground in less than 18 months — and residents, including the Standing Rock Sioux, were for the large part none the wiser.

Called Nationwide Permit 12, abbreviated NWP, the process itself has befuddled activists and environmental advocates who feel strongly that the Army Corps has not interpreted its language according to original intent. NWP allows for “activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than ½ -acre of waters of the United States for each single and complete project.”

That last portion of NWP has come under fire from critics, who say the Army Corps’s segmented approval process violates the spirit of the law.

“It’s in violation with, if not the law itself, certainly the spirit of the law,” National Wildlife Federation attorney Jim Murphy, who specializes in federal regulations such as the Clean Water Act, told the Seattle Times.

But the Army Corps disagrees, even over the markedly controversial Dakota Access Pipeline, saying it “may only regulate the areas where the pipeline crosses waters of the United States or federal real property interests acquired and managed by the Corps for flood control and navigation projects.”

In fact, the Corps argues assessing the pipeline sectionally allows for stricter evaluation, public input, and review under other environmental protection laws, like the Endangered Species Act.

Although Nationwide Permit 12, itself, comes under review every five years, it wasn’t until the bid for Keystone XL and now Dakota Access that flaws in its interpretation truly came to light. Pitting First Nations like the Standing Rock Sioux against Big Oil corporations backed by a facilitator government — and clashes between heavily militarized police and those who see it as their duty to protect the water — has finally drawn international awareness and condemnation.

A boom in domestic production left land ripe for exploration and exploitation by companies like Energy Transfer Partners and the project’s Big Bank investors seeking to profit exponentially once the crude can be shipped overseas around the world. Indeed, last year’s controversial, hobbled-together Omnibus Spending Bill included a massive shift to allow the export of unrefined crude for the first time since the 1970s — a legislative coup almost certainly designed to facilitate construction of the Dakota Access Pipeline.

When coupled with the NWP, oil and gas companies have essentially been provided a fast-track method to begin construction, even when all permits have not been granted — which is exactly the case with DAPL, and the focus of the pending lawsuit.

“Oil companies have been using this antiquated fast-track permit process that was not designed to properly address the issues of megaprojects such as the Dakota Access Pipeline,” Dallas Goldtooth of the Indigenous Environmental Network wrote during the formal review process this summer.

“Meanwhile, tribal rights to consultation have been trampled and Big Oil is allowed to put our waters, air and land at immense risk.”

Meanwhile, as the permit remains under review by U.S. District Court Judge James E. Boasberg, Energy Transfer Partners has capitalized on the fractured process, completing at least 75 percent of the $3.8 billion multi-state project. Boasberg failed to intervene on behalf of the Standing Rock Sioux this autumn, noting the pipeline “needs almost no federal permitting of any kind because 99 percent of its route traverses private land.”

ETP has, however, intimated it would begin drilling under the Lake Oahe reservoir — which provides drinking water for the Tribe — whether or not the appropriate permits had been granting. Using the distraction of the presidential election last week, ETP announced the transport of boring equipment to the banks of the Missouri to begin that segment — one of few pipeline sections yet to be completed.

A Day of Action to oppose the Dakota Access Pipeline will take place tomorrow, with over 200 actions planned in states and cities around the United States and elsewhere, with a goal to permanently halt construction. Water protectors and their allies fear this could be the last big push to stop the controversial project before President-elect Donald Trump — an outspoken proponent of the oil and gas industry, as well as Dakota Access — takes office in January and issues a predicted blanket approval.


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