While decisions in December 2016 by the US Army Corps of Engineers brought the Dakota Access pipeline drilling near Standing Rock to a halt, the project has only been delayed and could still be completed in 2017. Understanding the “precarious” financial and legal situation of the DAPL (Dakota Access Pipeline) project can assist those attempting to put pressure on banks and large institutions to divest from fossil fuel investments.

This article outlines important legal issues, international goals and strategic approaches citizens and media networks can use to remind those in positions of power of the agreements that have already been made by governments, corporate sector, civil society and financial institutions for humanity’s transition to Sustainable Development.

The Indigenous Tribes and the water protectors, who have risked their lives at Standing Rock, have reminded all of us that we have to work together to create a world where people live in harmony with Nature. For the sake of all future generations, we need to value Mother Earth’s natural resources and ecosystems as sacred. These are our Life support systems, and not merely materials to be harvested in destructive ways for short term financial profit.

Each individual’s continued support and leadership is vital, as members of our larger Earth Community. This article describes how and where we can each take action in collaboration with others who are committed to sustainable development for our collective wellbeing and those of future generations. Readers can assist by sharing this article with fellow grassroots activists, as well as potential allies in government, business, media, academic, legal, scientific and financial sectors.

Click here to download an Executive Summary of the main points, which is especially useful for decision-makers, investors and communicators. 

OVERVIEW OF ISSUES

There is a vital window of opportunity to stop the Dakota Access pipeline, and not just to delay or reroute the project. The window of opportunity to be most effective is between now and February 2017. From January, it appears that shippers have the contractual right to terminate their commitments with the DAPL project due to ETP’s (Energy Transfer Partners) inability to complete the project within the agreed time-lines. This will also change the position that investors will take, who may pull out their support when the economic rationale for DAPL becomes questionable.

Analysts with the Institute for Energy Economics and Financial Analysis described the details of this situation in a November paper: “ETP appears to be incentivized to rush to finish DAPL construction before January 1, 2017, in order to meet commitments it has made to oil producers. In an August 2016 court filing, DAPL highlighted its vulnerability on this point, stating: “In connection with its long-term transportation contracts with 9 committed shippers, Dakota Access has committed to complete, test and have DAPL in service by January 1, 2017. The long-term transportation contracts give shippers a right to terminate their commitments if DAPL is not in full service per the contract deadline. Meanwhile, faced with an uncertain delay, shippers would need to determine alternative sources for secure, reliable transportation of crude oil supplies to the refineries. These costs cannot be recovered and loss of shippers to the project could effectively result in project cancellation.” (Source article, p.9: click here).

What this means is that the front lines of the battle to stop the DAPL have expanded far beyond Standing Rock. On December 4, 2016, the US Army Corps of Engineers (the Authority responsible for issuing permits) made very clear that ETP does not have a legal permit to drill under Lake Oahe, as such adding pressure to the looming deadlines.

The Army Corps clarified further that for ETP to obtain a permit it needs to produce an EIS (Environmental Impact Statement) that indicates alternative routes for drilling as well as: “Additional information on the extent and location of the Tribe’s treaty rights in Lake Oahe.” (Source: Official letter by the US Army Corps December 4, 2016).

This decision by the Army Corps clearly shows that the EA (Environmental Assessment) that was conducted and completed in Aug 2016 is not sufficient. It is now required to conduct a proper EIS, and it can be questioned why this was not the requirement from the very start. An EIS process can take up to two years to complete.

Also in December 2016, attorneys Larry Bragman and Ford Greene reported that the Standing Rock tribe legally owns all mineral rights to the land beneath Lake Oahe. In this interview with Bruce Bagnoli, it is reported that in 1958: Public Law 85-915 was passed by the U.S. Congress, compensating the Standing Rock Sioux for tribal land flooded ten years prior to form Lake Oahe. Rights to all minerals below the lake were reserved for the tribe. Because of this, no corporate or government entity has a right to dig beneath the lake without permission of the tribe and is breaking the law in attempting it.”

These Treaty Rights and the official decision by the Army Corps have put the Energy Transfer Partners (ETP) in a very difficult situation. ETP went to Court on Friday December 9, 2016 to try to persuade Judge James Boasberg for an expedited ruling with the aim to overturn the Army Corps’ decline of their permit request to route their pipe underneath the Missouri River.

ETP argued that it was experiencing financial losses of up to 20 million USD per week resulting from their inability to complete the DAPL project, but did not persuade the Court. Judge Boasberg rejected ETP’s request for an expedited ruling and instead decided for this ruling to take place in February of 2017. The Judge also made clear during the hearing that ETP should not have progressed so far into a project if they did not yet have a final permit. Financial loss due to their inability to complete their contractual obligations with their clients and partners is not the problem of the Court, and provides no legal reason to rush the process for a final decision.  Find below the motions submitted on 6 January as per request of the Judge in preparation for the February Court hearing:

  • United States Army Corps Of Engineers’ Memorandum In Support Of Its Motion To Dismiss And In Opposition To Dakota Access, LLC’s Motion For Summary Judgment”, click here.
  • Memorandum In Support Of Standing Rock Sioux Tribe’s Motion To Dismiss And Cross-Motion For Summary Judgment“, click here.

The main conclusion that can be drawn from the motions submitted is that the claim made by Dakota Access (ETP) implying that the Army Corps had granted them permissions and made promises for the requested permit to drill under Lake Oahe, has no legal standing:Dakota Access does not, and cannot, plausibly allege that the United States Department of the Army (“Army”) completed the administrative decision-making process required to grant
the Lake Oahe easement pursuant to the Mineral Leasing Act.” (Source: click here).

The inclusion of a full assessment of the Indigenous Tribe’s Treaty Rights and the implications of this for the proposed DAPL can set a precedence to acknowledge and respect the sovereign rights of First Nations in ways that has been mostly lacking up until now. There is a long standing history of violation of these Treaty Rights, click here for more information. Officially the Sioux Treaty Rights are laid out in the Fort Laramie Treaty of 1862. Especially important is where this concerns Article 2 and 16 of this Treaty pertaining to the sovereignty of the Tribes, including their land rights, and the boundaries of their sovereignty.

In summary; the Court’s decision for a formal hearing in February 2017 creates a potentially fatal financial problem for ETP that may well lead to their bankruptcy. As the November 2016 IEEFA report revealed, there is an exit clause in the DAPL contract that was said to come into effect on January 2, 2017, which gives shippers the contractual rights to pull out their commitments from the project since the work has not completed as was agreed by contract. Click here to read the legal papers related to the DAPL project and those prepared by Earthjustice, the legal representative of the Standing Rock Sioux Tribe.

In the words of Robert Reich, ETP’s situation is “financially precarious,” and we now have an excellent window of opportunity to remind the project’s financial backers and investors why this is not a sound investment and how even on economic grounds it makes no sense to remain involved. (Source: click here).

THE BROAD DIVESTMENT MOVEMENT BEYOND STANDING ROCK

Understanding the financial and legal issues involved with the DAPL project can empower the growing divestment movement beyond Standing Rock. Numerous campaigns have been putting pressure on banks and investors to remove investments out of fossil fuel based projects that damage our environment and atmosphere, and invest instead in renewable energy solutions. Click here to read the letter to the CEO of the ING Bank in the Netherlands that we helped to prepare together with film-maker Robert Bridgeman and his team.

During the month of December 2016, a coalition of grassroots Indigenous activists groups (including the Indigenous Environmental Network, Honor the Earth & Sacred Stone Camp) called for a month of national and international actions, asking the banks behind the DAPL project to withdraw their support.

They asked activists and allies around the world to confront financial institutions that had invested in the Dakota Access pipeline with the facts about DAPL’s negative impacts on the Standing Rock Tribes’s constitutional rights and the natural environment. People responded, with bank protests carried out in small towns and big cities in the United States, Australia, the Netherlands, UK and other nations. Bill Moyers shared an overview of How Activists Around the World Take #NoDAPL Fight to the Banks, and also explained  “How Standing Rock’s Divest Campaign Can Stop Future Pipelines“.

As was reported by the Guardian on December 12, 2016, last year saw a historical shift away from fossil fuel investments. Divestment funds doubled in 2016, to about $5 trillion. The fight against the DAPL has helped to raise awareness around the world about the dangers of continuing investment in fossil fuels with increasing climate change impacts.

In a news conference shared recently by Democracy Now, Mark Ruffalo spoke directly to investors about the massive shift that is occurring with Standing Rock, college divestment campaigns, and the move by over 700 institutions to divest over $5 trillion from fossil fuels. Ruffalo said:

“If you keep your money in the fossil fuel industry, you are hurting your children, you are hurting the future generations, and you’re hurting yourselves. You can’t say that you care about your children or your grandchildren and keep pouring money into this system. We now have the technology, clearly, to move forward.” (Source article: click here).

Since 2011, a global student movement has been emerging, similar to anti-apartheid and anti-war campaigns of the past, pressuring banks and other institutions to divest from fossil fuels. Divestment from fossil fuels and investment in renewable energy solutions is critical to reduce human induced global warming and climate change. Two years ago, MSNBC described the powerful fossil fuel divestment campaign on American college and university campuses in this report: Fossil Fuel Divestment Protests Hit Colleges Nationwide”.

The movement to push colleges and universities to divest from fossil fuels is heating up on campus. Everywhere you look, divestment sit-ins, protests, and rallies are sweeping across campuses. At Harvard this week, more than 1,000 students, alumni and professors have taken part in sit-ins, rallies and protests.” (Source: click here)

TOOLS AND MECHANISMS THAT CITIZENS CAN USE

The various grassroots campaigns to divest from fossil fuels is an expression of a larger international movement and commitment to sustainable development that is happening at all levels now, as we enter the 21st century. Our planet’s climate systems and other vital ecosystems have suffered severe impacts, some of them beyond repair, from the unsustainable manner in which we have been carrying out human activities. Click here to read an overview of the role of the financial sector in the shift towards sustainable development, from the United Nations Environment Programme (UNEP).

Growing international recognition for the fact that we can no longer continue “business as usual” has brought business, government and financial sector leaders from around the world together to agree on collaborative solutions for a more sustainable way of living and developing our societies. The recent 2016 Paris Agreement and the United Nations 17 Sustainable Development Goals (SDGs) make this very clear. These SDGs were adopted unanimously by 193 UN member states in 2015, and came into effect as of January 1, 2016.

Divestment from fossil fuels is a critical factor to stop global warming, and requires active steps such as those being taken now. Divesting from oil construction projects like the Keystone XL and Dakota Access pipeline are part of the necessary changes to direct investment away from fossil fuels and towards renewable energy solutions to achieve our sustainability.

At the same time some ground breaking lawsuits have been won by citizens in the USA and the Netherlands, among others, where citizens are using their constitutional rights to hold their governments responsible for taking concrete actions to reduce fossil fuel emissions to address Climate Change. The Courts accepted that governments have a legal responsibility as per their mandate outlined in the Constitutions to safeguard to the best of their ability the sustainability conditions of human life for their citizens.

Judge Ann Aiken from the U.S. District Court of Oregon said in an important ruling on November 10, 2016: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” The decision means that “the youth, age 9 to 20 and from all over the U.S now have standing because their rights are at stake, and now their case is headed to trial“. Click here for further information.

In the Netherlands the Judges ruled in 2015 that: “The State must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment. The State is responsible for effectively controlling the Dutch emission levels.” Click here for further information.

It is urgent that human beings stabilise our climate systems and manage our natural resources sustainably to avoid the collapse of the ecosystems on which our lives (and all future generations on our planet) depend. See the United Nation’s video below featuring Oren Lyons, a faithkeeper of the Iroquois Confederacy, outlining the importance of the UN Sustainable Development Goals and our actions to achieving those.

As we move forward, the current situation where social activists find themselves battling large corporate interests and militarized police forces needs to transition towards greater unity, alignment and collaboration. It is clear that today’s problems can only be resolved by governments, businesses, banks, environmentalists, concerned citizens and the media working together on common goals, like the SDGs, and through a shared Vision for a sustainable future where all of us can flourish ecologically.

The recent Paris Agreement and the SDGs provide important tools for citizens to hold their governments, financial institutions and large corporations responsible to act in ways that do not cause irreversible harm and damage to the fragile ecosystems on which our life depends. These agreements also provide policy tools and mechanisms to hold the financial sector responsible to their commitments to Sustainable Development.

There is a growing international trend, which may soon become mandatory, for large organisations to account for their full impacts on human and ecological systems; and not just their financial bottom line. This means that negative effects on the environment and the social dimensions of our society also need to be accounted for. There are already various tools available to make transparent these real impacts. The Global Reporting Initiative (GRI) is one such framework that banks and other large organisations are using for their Sustainability reporting.

Citigroup, one of the key funders of the DAPL, has been using the GRI framework to communicate its sustainability commitments to its stakeholders (click here for more information). Accordingly, Citigroup’s involvement in the DAPL will have to be mentioned as part of their Annual GRI report for 2016 and 2017, which is in clear contradiction to their sustainability commitments and what they have communicated to the public (as can be seen on their website).

Banks and other institutions that use GRI for their reporting commitments need to also report on the Impacts of their activities and investments across the entire value chain with regards to Human Rights and Environment.  There is sufficient evidence that DAPL scores negatively on both areas.

There were serious Human Right violations in recent clashes with the Water Protectors and Indigenous Tribes at Standing Rock, and the EIS process now in place will look closely at the negative impacts that DAPL poses on the natural environment. Moreover, the pipeline project scores negatively on indicators for sustainable development due to the impacts that burning fossil fuels has on Climate Change.

Activists and stakeholders can make this very clear by demanding meetings with executives at Citigroup and other banks that are supporting the DAPL and similar projects that keep us dependent on fossil fuels for our consumption needs. You may use this Executive Summary of the main points to facilitate such meetings.

The mainstream media also has a responsibility to report more on the human, environmental and economic costs of the fossil fuel infrastructure, especially where this concerns spills of pipelines to water supplies and natural habitats. According to Ecowatch there were 220 pipeline spills reported in 2016, and 3,032 since 2006. The costs of these leaks since 2006 has amounted to $4.7 billion.” Click here to read more.

THE TIDE IS TURNING

Defunding DAPL actions by people both inside and outside financial institutions are most important now in this window before the next Court session in February, especially knowing that investors may want to remove their investment due to the economic instability of the project resulting from incompletion of work and potential loss of contracts with shippers. Continuation of drilling in order to avoid financial loss prior to the Court hearing of February 2017 is considered an illegal activity. Click here to learn more about Defund DAPL activities. To join global prayer actions in support of the Standing Rock movement, click here

With the Trump administration taking power soon we may experience some push back on these changes that have been set in motion, with investments and policies reversing back to support fossil fuel based companies and projects. If this happens all who are concerned about our planet’s future need to keep the pressure on to stay in line with the targets that were set and agreed upon as part of the UN Sustainable Development Goals, and as was made clear by all those who took to the streets to protest against Pipeline Projects and Climate Change in recent years.

What we see with Standing Rock and related actions is that the Tide is Turning. A movement has been born that is going to grow in size and influence as we move forward in time. Efforts by the Trump administration, pipeline builders and the fossil fuel industry to stop these changes need to be met with large-scale peaceful actions and well-coordinated campaigns.

These actions and campaigns empower people by showing which tools and mechanisms are in place and can be utilised to hold organisations and governments responsible for respectful management of our collective resources and future wellbeing.

We need to celebrate victory when it happens, such as with the Keystone pipeline and DAPL project, but also remain vigilant. There is still a long way to go, but we are moving forward in the right direction thanks to the brave people around the world who have come together to “Stand for Standing Rock” and all this represents.

Activists and allies at all levels of society can take these facts to the banks that have invested in the DAPL project and fossil fuels. We need to share this information with friends, neighbors, investors, media, government leaders, large institutions, banks and financial leaders everywhere. Filmmaker Robert Bridgeman and his team recently made a documentary about Standing Rock and DAPL They also contacted the ING bank in the Netherlands, who provided a loan to help finance the project. We supported Robert and his team to write the English version of their Dutch letter to the CEO, which can be viewed here. Watch the trailer below to to have a better understanding of what has been going on all these months.

It is up to all of us to make clear that we do not endorse or permit financial institutions to use our money for projects that cause harm to the natural environment and are in violation of our constitutional rights. All of us need to become aware that what is happening at Standing Rock with the DAPL project is not unique. It is happening in so many places around the world, with pipelines, drilling projects and other destructive actions driven by short-sighted financial profit agendas, with no considerations for the damage to land, water, people, animals and the necessary living conditions for our future generations.

 

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Picture credits: These pictures were taken by photographer Brandon Tyler Williams of Thought Pirates during his recent visit to Standing Rock, and are shared here with his permission. 

WATER IS LIFE – The Water Protectors at Standing Rock have been risking their lives to stop activities and projects that violate our collective responsibility as conscious members within the larger Earth Community. They have reminded us to honour our Planet, each other, and the vital ecosystems on which we all depend.

Despite difficult conditions and violent responses by certain members of militarized police and private security forces, the water protectors did not back down to let narrow financial profits of a large corporation determine the use and destiny of the Land and Water held sacred by them.

We give thanks to the Indigenous tribes, student campaigns, alternative media, divestment movement, the water protectors and all other concerned citizens who have been working together to make sure that the age of fossil fuel dependencies and abuse of our planetary resources comes to an end. We stand together for the co-creation of societies that are ecologically sustainable, wisely managed and founded on the collective care for our Planet and each other.

The Tide is Turning – We are the Tide

Written by Anneloes Smitsman, LLM (CEO & Founder EARTHwise Centre) and Christopher Chase (Creative by Nature, admin of Standing with Standing Rock).