Tribes open new front in fight over pipelines

The Obama administration is launching a review of energy permits on American Indian lands, opening a new front in the fight over oil pipelines in the United States.

Obama officials promised the review after pausing construction on the contentious Dakota Access Pipeline earlier this month.

The stakes are high for both sides.

{mosads}For Indian activists, the review raises the possibility federal officials could consult more with tribes and lead to fewer projects — energy and otherwise — that they oppose. 

The energy industry and its backers in Congress worry about that outcome, accusing President Obama of threatening energy projects on federal lands around the country.

The Obama administration has hinted the review could be wide-ranging and have a major impact on federal permitting, saying that the Dakota case “highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”

Federal officials haven’t said what that review will entail, or how far the administration is thinking of going.

Lawmakers were in the dark about the scope of the review this week.

Sen. Heidi Heitkamp (D-N.D.) said officials told her “they’ll need a couple weeks” before they could detail what information they need for their review. 

For Indian rights groups, the review carries a big promise, especially in light of the Dakota Access fight.

Federal approval of the $3.8 billion 1,170-mile project has inflamed debate over the rights of tribes, who view the pipeline’s route as a threat to cultural heritage and environmental sites near the Standing Rock Sioux Tribe’s land in North Dakota. 

Thousands of people have protested against the pipeline, from the North Dakota prairies to the White House, where tribal allies this week insisted President Obama takes steps to block the project. 

But tribal concerns go deeper than Dakota Access, cutting to the heart of the relationship between federal and tribal governments. 

Native American groups say they have been on the short end of federally supported development plans for decades, from gold mining in South Dakota’s Black Hills to hydropower dams on the Missouri River. Energy firms, they say, don’t cared about their concerns, and the federal government hasn’t lived up to its responsibility, enshrined in trusts and treaties, to protect tribes. 

“I think the reason the Standing Rock issue has resonated so quickly is because this has happened throughout Indian country,” said Denise Desiderio, the policy director at the National Congress of American Indians.

“Consultation is one thing, but treatment of a government is another, and we need that higher standard, not just from the federal government, which has a trust responsibility, but from private entities that impact trial lands.”

Everyone on the other side of the Dakota Access fight — its developer and the Army Corps of Engineers, the federal agency that approved permits for it — insist they have followed the rule and spirit of the law, working hard to avoid cultural sites and routing the pipeline near existing infrastructure in the region to minimize environmental risk. 

The industry warns that an exhaustive review of permitting on Indian land could have a major impact on infrastructure projects, both energy and beyond.

“The administration has unilaterally attempted to change the rules in the middle of the game, effectively counteracting the results of their own process and the affirmation from an independent third party judge,” American Petroleum Institute President Jack Gerard told reporters this week.

“This change sets a dangerous precedent for our country that could threaten all other critical infrastructure projects like bridges, roads and electric transmission.”

Brigham McCown, the chairman and Founder of the Alliance for Innovation and Infrastructure trade group, said it’s acceptable for the administration to review the terms of the Dakota Access process. But a deeper review, he said, threatens to pull the rug out from under companies looking to secure federal permits for other projects. 

“If this thing gets bogged down on all other types of issues not having to do with the merits [of the Standing Rock Sioux tribe’s concerns], then I think we have to get prepared for a very difficult journey for all infrastructure projects moving forward.” 

Lawmakers’ reaction to the review was mixed.

Leading Republicans generally opposed it, with Sen. John Barrasso (R-Wyo.), the chairman of the Indian Affairs Committee, hitting the Obama administration for “audacious executive actions” that he said are “hurting our economy and … hurting our ability to get people back to work.”

Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said the review “smacks and smells of political gamesmanship,” and contended that if Indian consultation is on the table, other environmental processes should be, as well.

“They all need to be reviewed and updated, even the damn Antiquities Bill has to be reviewed and updated,” he said. “So there’s nothing wrong with that. That’s a separate issue than what happened in North Dakota, though. What happened in North Dakota is simply a violation of [the administration’s] own standards.”

The plan raised spirits among Democrats, especially those with Native American constituencies.

“Number one, it’s got to be done safely, it’s got to be done right, the pipeline building,” said Sen. Jon Tester (Mont.), the top Democrat on the Indian Affairs Committee. 

“Number two, you’ve got to respect the property owners. So I think it’s important, not only for the Indian reservation but for the owners off reservation, too, to make sure private property rights are upheld.”

Eighteen Democrats, lead by Congressional Native American Caucus Co-chair Betty McCollum (D-Minn.), wrote Obama a Wednesday letter saying they were “pleased to see that the administration will be holding formal government-to-government consultations this fall to improve tribal input on infrastructure decisions.”

The group said it would work on “legislative proposals to ensure the preservation of tribal sacred and historic sites, protection of trust lands and access to clean water are prioritized for [Dakota Access] and other [Army Corps] project decisions.”

Democrats have high hopes for the review.

Natural Resources Committee ranking member Raul Grijalva (D-Ariz.), welcomed a broader review of energy development on federal lands. 

“It’s looking at pipelines, transmission, extraction, I think, with a much more jaundiced eye, and I think that’s good,” Grijalva said. 

“How we do energy development, how we make energy extraction decisions on public land is a critical, critical [question],” he said. “And out of this review could come some very significant precedents.”