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Indian Country And Climate Change After DAPL

Law360, New York (February 27, 2017, 12:01 PM EST) —

Matthew L.M. Fletcher

In the chaos of the early weeks of the Trump administration, the president managed to highlight his support for the natural resources extraction industry by strongly encouraging the imminent approval of the Dakota Access pipeline and the Keystone XL pipeline, circumventing additional environmental review. The U.S. Department of the Army quickly issued a notice of intent to grant an easement to Dakota Access, with oil beginning to flow as soon as June 2017. On Wednesday, law enforcement officials forced the last of the NoDAPL protesters out and arrested several people.

Litigation continues, as the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Oglala Sioux Tribe pursue a host of environmental, treaty and cultural claims in federal court. The claims have a great deal of merit. The American Civil Liberties Union claims the drinking water of 18 million people is at stake, suggesting extensive environmental review is merited. Initial claims that Dakota Access intentionally plowed over Lakota cultural sites seem to have been vindicated as the North Dakota Public Service Commission has filed a complaint formally making the same claims after an investigation. The National Indigenous Women’s Resource Center argues that the completion of the pipeline will lead to more human trafficking and violence against women. The federal government’s abrupt change in positions from requiring minimal environmental review initially, to requiring an environmental impact statement in the latter months of the Obama administration as the government began to realize the extent of the impact of the pipeline, to now dropping that requirement altogether for purely political reasons is almost the definition of “arbitrary” under the Administrative Procedures Act.

The NoDAPL movement doesn’t seem to be confined to the aquifer attached the Lake Oahe, but instead could be part of a broader undertaking against the current administration and its allies on numerous fronts. The initial organizers of the movement began their activism at the Keystone XL pipeline, and have already pledged to restart that protest. The occasionally violent reaction by local police against NoDAPL protesters (a federal court action against the local sheriff is pending) focused attention on the police violence against Native Americans nationally. The president’s investments in the companies building the pipeline highlight the greater conflicts of interest that have scandalized the administration.

Most importantly, the new administration’s support for the Dakota Access pipeline is the administration’s opening salvo in the financial and political war over climate change. The oil and gas industry already has the administration in its pocket, and is all too happy the president continues to deny climate change is caused by humans.

At least until the new administration forces it to stop, the U.S. Environmental Protection Agency now states that cutting a ton of greenhouse gasses saves the world $36 in social costs, a useful metric for calculating a carbon tax. The government defines “social costs” as including “changes in net agricultural productivity, human health, property damages from increased flood risk, and changes in energy system costs, such as reduced costs for heating and increased costs for air conditioning.” The Dakota Access pipeline is expected to move about 172 million barrels a year or 23.4 tons. Using the EPA’s current social cost rate, the pipeline will impose a social cost of more than $842 million a year in impacts to agriculture, health, floods and so on. That’s only if the pipeline operates smoothly. If there’s a spill, the impacts will dwarf the estimated social costs, and will be felt most acutely in Indian country.

Though the Department of the Army’s current official position is that there is no significant impact to the environment as a result of the construction of the pipeline, the costs to Americans — and especially American Indians — are gravely significant. The administration’s position favoring Dakota Access is a giveaway of upwards of a billion dollars from the American people to the president’s business partners. Modern American government is founded on transparency, and a full environmental review is uniquely critical in these types of matters.

Finally, the completion of pipeline projects like DAPL and Keystone XL over tribal objections also implicates the federal-tribal trust relationship. Long ago, the United States and Indian tribes entered into an arrangement whereby the government agreed to preserve the internal sovereignty and the natural resources of Indian tribes in exchange for the tribal incorporation as domestic nations into the American polity. Overall, the federal government’s satisfaction of its trust obligations to Indian tribes preserved what remains of Indian lands. But we all know the government’s historical failures to fulfill its trust duties sometimes were grievous, especially in terms of tribal cultures and Indian children, but often involved the confiscation and spoliation of tribal assets. Recent administrations acknowledged and, generally speaking, respected the trust relationship. In fact, each of the last several presidential administrations dating back to the 1960s has issued statements, and even executive orders, supportive of tribal sovereignty and the trust relationship.

The new administration seems different. The key to the trust relationship is communication and consultation. None of that was present here. Summarily reversing carefully considered Obama administration decisions not only may be legally arbitrary, but, given the rhetoric of the administration, may actually be based in avarice toward Indian people and others who worry about climate change and environmental justice. There never really has been a presidential administration that openly disdained Indian people going back to the Jackson administration. The government’s based its numerous historical breaches of its duties to Indian people — assimilation, allotment, termination — on misguided efforts to help, and often came from the brainstorms of groups like the Friends of the Indian.

In the second decade of the 21st century, Indian tribes and Indian people are at the vanguard of challenging government and business acts that worsen climate change. One wonders if it is only a matter of time before Native Americans and their resources are in the administration’s crosshairs. The burning tipis of Standing Rock portend a dark time.

—By Matthew L.M. Fletcher, Michigan State University College of Law

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.