Dakota Access Pipeline (DAPL, 2016)

The Dakota Access Pipeline Project (DAPL) is a $3.78 billion conduit being built from the oil-rich Bakken fields in North Dakota, near the Canadian border, through South Dakota and Iowa, to Patoka, Illinois… The Army Corps of Engineers approved the project in July with a “fast-track” option, allowing it to run under the Missouri river… The parent company of Dakota Access LLC is Texas-based Energy Transfer Partners, whose board of directors includes Rick Perry, the former governor of Texas and whose investors include President-Elect, Donald Trump.

The pipeline — 30-inch in diameter — originates in the Bakken oil fields, where the largest community is Williston, ND, and ends in Pakota, IL. That’s 1,172 miles, only seven miles shorter than the proposed – and tabled – Keystone XL pipeline.

• North Dakota – 346 miles
• South Dakota – 274 miles
• Iowa – 347.14 miles
• Illinois – 177.20 miles

In September court filings, ETP stated that the Dakota Access pipeline was 45% complete. On December 4, ETP said that the pipeline is 92 percent complete overall and 99 percent complete in North Dakota.

In mid-November,  the Corps said that “additional discussion and analysis [was] warranted.”

While these discussions are ongoing, construction on or under Corps land bordering Lake Oahe cannot occur because the Army has not made a final decision on whether to grant an easement.  The Army will work with the Tribe on a timeline that allows for robust discussion and analysis to be completed expeditiously.

Details on the North Dakota economy and pipeline controversy below.

Project status, 27 November 2016:

The company currently lacks permits to tunnel beneath the Missouri River, but its employees have been working full time and have completed construction on both sides of the river. The construction site is surrounded by protective barricades in preparation for drilling under the water.

Project status, 4 December 2016:

U.S. Army Corps of Engineers announced that it would not grant the easement that would permit drilling under Lake Oahe in North Dakota. The Corps will, instead, initiate a full Environmental Impact Statement, something that critics — including other federal agencies — have called for since the projection inception

ETP began its permit process in South Dakota in February 2015. Before gaining permit approval, the company was already shipping pipe into South Dakota. The evidentiary hearing was in July.

In September, the South Dakota Public Utilities Commission ruled that no environmental impact statement would be needed. In October, news reports noted that the PUC also failed to conduct a historical sites survey.

The PUC approved the permits in November 2015 after a year of “contentious debate.” Commissioner Gary Hanson was the lone “no” vote, due to the route being “one-quarter mile from the [Harrisburg’s] growth area and along the route of a high-voltage power line.” He also criticized the company for filing lawsuits against landowners “before gaining a siting permit.”

The primary group in opposition: Dakota Rural Action.

At the time of the vote, ETP had secured “easements with more than 91 percent of the 743 properties in South Dakota along the route. Eminent domain proceedings might be necessary for the remaining tracts.”

All has not been smooth in Iowa, either. 

Las year, ETP sought eminent domain powers to “buy” about 37% of the private land it needed in Iowa to construct the pipeline.

Dakota Access needs 50-foot-wide permanent easements and a temporary construction easement of up to 150 feet for the pipeline. The pipe would be buried at least three feet deep, and at least four feet deep for agricultural land.

ETP asked the Iowa Utilities Board (IUB) to give it the power to pay “market value” for up to 475 parcels from landowners unwilling to sell.

This is not the eminent domain process you may remember learning in school: the “taking” of private land for public use. This is “taking” private land for private, for-profit use.

In June, the IUB gave the project a green light. Lawsuits commenced, but so far no private landowner has won in court.

This is one reason the use of eminent domain is controversial:

An analysis by RBN Energy says oil producers will pay around $8 per barrel to move their crude through Dakota Access. At max capacity, the pipeline could carry about 570,000 barrels per day. So, if the pipe runs at peak, the pipeline will earn its owners, Energy Transfer Partners, roughly $1.7 billion a year.

In December 2014, ETP told Illinois regulators that they planned to begin construction during 2015 and begin moving oil in 2016; the permit application went to the Illinois Commerce Commission, where the company “requested eminent domain powers as a last resort for land acquisition.”

Hundreds of landowners — the list runs to 70 pages in the ICC petition — would be affected by the proposed corridor from the Illinois-Iowa state line north of Quincy to Patoka, about 80 miles southeast of Springfield.

At this point in time, ETP had filed for permits only in North Dakota and Illinois.

In Morgan County, Illinois, another contentious environmental project was going on in 2014.

In 2003, FutureGen was envisioned as a zero emission coal plant, a public-private partnership that would store carbon dioxide from coal power generation. Illinois has coal, but it is a dirty high-sulphur coal. In 2008, the Bush Department of Energy pulled out. By 2010, the Obama Administration had restructured the project, and it was earmarked to receive $1 billion in stimulus bill funding. By 2014, the Environmental Protection Agency had issued a permit for underground-injection carbon dioxide, the first such permit in the county. But in December, those environmental permits were before the Illinois Supreme Court, the result of a Sierra Club legal challenge. FutureGen was never built; the Obama DOE pulled out of $1.65 billion project in 2015. Read more about Illinois coal and about turning coal into clean energy.

ETP owns and operates more than 62,500 miles of natural gas and natural gas liquids pipelines.

MotherJones reported in November:

[President-elect] Trump has invested between $15,000 and $50,000 in Energy Transfer Partners, according to financial disclosure forms. [Energy Transfer Partners CEO Kelcy Warren] donated more than $100,000 to help elect Trump….One of Trump’s key energy advisers is North Dakota Rep. Kevin Cramer, who has encouraged him to dismantle key aspects of the Clean Water Act, which gives the Army Corps and the Environmental Protection Agency authority to regulate the nation’s waterways and wetlands.

The Guardian reported in October that Trump had invested between $500,000 and $1 million in Phillips 66.

The CEO of ETP has been absolute in his certainty that the Trump Administration will green light the missing federal permits.

I’m 100 percent sure that the pipeline will be approved by a Trump administration,” CEO Kelcy Warren of Energy Transfer Partners — the Dallas-based company funding the $3.7 billion project — told NBC News.

Warren also told CBS that he is “100 percent” confident that Trump will help the company finish the project.

Perhaps his certainty is linked to campaign contributions?

Kelcy Warren, CEO of Dallas-based Energy Transfer, told The Associated Press that he expects Trump to make it easier for his company and others to complete infrastructure projects.

“Do I think it’s going to get easier? Of course,” said Warren, who donated $3,000 to Trump’s campaign, plus $100,000 to a committee supporting Trump’s candidacy and $66,800 to the Republican National Committee.

The purpose of an EA is to determine if there will be significant effects resulting from a Federal action. The purpose of an EIS is to analyze and disclose the significant effects resulting from a Federal action. An EA is typically a shorter document than an EIS, and its preparation offers fewer opportunities for public comment or involvement than an EIS. EAs have fewer procedural requirements and therefore take less time to prepare on average than an EIS.

An Environmental Assessment (EA) is a concise public document that provides sufficient evidence and analysis for determining the significance of effects from a proposed Federal action. An EA is prepared when it is unclear whether an action will have a significant effect on the human environment.

An Environmental Impact Statement (EIS) is a comprehensive public document that analyzes the impacts of a Federal action that will have a significant effect on the human environment. Preparation of an EIS requires public scoping. Draft EISs must be made available for public review and comment; agencies must wait 30 days after publishing final EISs before making decisions. Generally, an EIS includes detailed discussions of the following: a statement of the purpose and need for the proposed action; a description of the affected environment; alternatives to the proposed action; and an analysis of environmental impacts and ways to mitigate such impacts.

The National Fish and Wildlife Service answers additional questions about the permitting process.

This 1988 examination of River Road Alliance, Inc. v. Corps of Engineers explores the questions around an agency decision to forego an EIS.

North Dakota’s oil production peaked of 1.23 million barrels per day in December 2014. In June, production was 15% lower than the December 2014 all-time high. Production estimates for November 2016: 972,000 barrels per day, a 21% decline from the 2014 peak.

Current spot oil, FOB Oklahoma, is less than $50/barrel.

The price for West Texas Intermediate, the U.S. benchmark price for crude oil, was around $54 per barrel at the end of 2014 when North Dakota crude oil production peaked. It’s now at around $46 per barrel and the weakness has forced many companies to cut back on spending for exploration and production.

As a result, the number of oil rigs statewide is down more than 80% from peak levels.

Williston’s Walmart has cut hourly pay 15 percent. The Salvation Army, facing slipping donations, reduced gasoline and food assistance by a third. Statewide, oil tax revenue is down nearly 70 percent from [May 2015 to May 2016]…

United Airlines ended a direct flight from Williston to global oil hub Houston in early April. Home Depot Inc will close its Williston store this month. FedEx Corp, facing a steep drop in mail volumes, runs one daily delivery plane to Williston, down from three a year ago.

In addition, the Corps is supposed to consult with tribes per the National Historic Preservation Act (NHPA).Critics charge that the Corps avoids the intent of the law via Nationwide Permit (NWP) 12, “a fast-tracking process designed to exempt minor projects with up to a half-acre of impacts to waterways from any public notice or review processes (pdf).”

Since 2012, the Corps has begun to approve massive interstate oil pipelines under NWP 12, artificially treating them as thousands of “single and complete projects,” allowing them to bypass any meaningful environmental review or public engagement.

The pipeline was originally slated to pass near Bismarck, ND, the state’s second largest city. The U.S. Army Corps of Engineers decided that the risk to Bismarck residents drinking water was too great and re-routed the pipeline in 2014.

On June 1 the Corps issued its Federal Register call for comments on the 1,168-mile Dakota Access Pipeline. The Corps the approved construction in July by claiming NWP 12 fast-track authority. A coalition of environmental groups submitted comments in opposition (pdf).

And yet.

In midsummer, the Obama administration promised that henceforth there would be a climate test for new projects before they could be approved. That promise was codified in the Democratic platform approved by Hillary Clinton’s campaign, which says there will be no federal approval for any project that “significantly exacerbates” global warming.

Early in the planning process, Dakota Access considered but eliminated an alternative that would have crossed the Missouri River about 10 miles north of Bismarck instead of the route currently under construction.

The U.S. Army Corps of Engineers evaluated the Bismarck route and concluded it was not a viable option for many reasons. One reason mentioned in the agency’s environmental assessment is the proximity to wellhead source water protection areas that are avoided to protect municipal water supply wells.

In addition, the Bismarck route would have been 11 miles longer with more road crossings and waterbody and wetland crossings. It also would have been difficult to stay 500 or more feet away from homes, as required by the North Dakota Public Service Commission, the corps states.

The Bismarck route also would have crossed an area considered by federal pipeline regulators as a “high consequence area,” which is an area determined to have the most significant adverse consequences in the event of a pipeline spill….

[Therefore North Dakota] regulators did not evaluate the Bismarck route because Dakota Access had selected the current Missouri River crossing when it submitted its application in December 2014, said Public Service Commission Chairwoman Julie Fedorchak.

A Google search finds no contemporaneous news reports (1 April 2014 – 1 April 2015).