Keystone Pipeline Protesters Fear Federal Surveillance and Crackdowns
September 8, 2018
Phil McKenna / Inside Climate News & Nicholas Kusnetz / Inside Climate News
The US Army Corps of Engineers is defending its claim that the Dakota Access pipeline will have no significant environmental impact, but it issued only a brief summary of its court-ordered reassessment while refusing to release crucial details about potential oil spills. With the Keystone XL pipeline expected to draw protests from indigenous and environmental activists the ACLU is worried that federal law enforcement agencies may be planning a massive surveillance and a militarized crackdown on protesters.
Tribe Says Army Corps Stonewalling on
Dakota Access Pipeline Report, Oil Spill Risk
Phil McKenna / Inside Climate News
(September 6, 2018) -- The US Army Corps of Engineers is defending its claim that the Dakota Access pipeline has no significant environmental impact, but it issued only a brief summary of its court-ordered reassessment while keeping the full analysis confidential.
The delay in releasing the full report, including crucial details about potential oil spills, has incensed the Standing Rock Tribe, whose reservation sits a half-mile downstream from where the pipeline crosses the Missouri River.
The tribe said the Army Corps is stonewalling, and it said it will continue to oppose the pipeline. Meanwhile, oil continues to flow through the pipeline two years after opponents set up a desperate encampment to try to block the project.
In June 2017, a federal judge ordered the Corps to reassess the potential environmental harm posed by the pipeline, saying it had failed to "adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline's effects are likely to be highly controversial."
The Corps responded in an Aug. 31 memo saying it sought additional information from Energy Transfer Partners, which owns and operates the Dakota Access pipeline, as well as from Standing Rock and other tribes, but did not find "significant new circumstance[s] or information relevant to environmental concerns."
Tribal leaders blasted the reassessment and could choose to challenge it in court.
"The Army Corps' decision to rubber-stamp its illegal and flawed permit for DAPL will not stand," Mike Faith, Jr., chairman of the Standing Rock Sioux Tribe, said in a statement. "A federal judge declared the DAPL permits to be illegal, and ordered the Corps to take a fresh look at the risks of an oil spill and the impacts to the Tribe and its Treaty rights. That is not what the Army Corps did."
The tribe says it hasn't been able to view the Corps' full reassessment. Instead, the Corps released a two-page memo that mentions a larger analysis of potential environmental impacts, but that report is undergoing a confidentiality review prior to release. The Army Corps and the U.S. Department of Justice did not respond to requests for additional information.
"It's dismaying that they are keeping that confidential, because what they released doesn't tell us anything," Jan Hasselman of Earthjustice, an attorney representing the Standing Rock tribe, said. "We all need to see what's in that [report] before any decisions are made."
Memo Fails to Address Oil Spill Risk
A key omission from the Corps' memo was detailed technical information about a worst case scenario spill from the pipeline into the Missouri River and the risks such a spill would pose to members of the Standing Rock reservation, Hasselman said.
The reservation is just downstream from where the pipeline crosses the Missouri River, the tribe's water supply. The tribe says it has struggled to get detailed information about potential spills and spill response plans from Energy Transfer Partners.
The company did not respond to a request for comment.
If the tribe concludes that the Army Corps' recent reassessment of environmental impacts posed by the pipeline was insufficient, and they decide to challenge the findings in court, there is still a chance they could stop the pipeline, though the odds of such an outcome are slim.
"Once the pipeline is constructed and the oil is flowing, it's very difficult for courts to have the stomach to overturn decisions that resulted in that outcome," said Sarah Krakoff, a professor of Native American law at the University of Colorado Law School. "This administration won't last forever and when there is different direction from above to the Army Corps and other agencies, then maybe the decisions about the pipeline can change."
Tribes Are Challenging Other Pipelines, Too
The recent memo by the Army Corps comes amid recent successes and capitulations by other tribes challenging pipelines elsewhere in North America.
On Aug. 30, First Nations in British Columbia won a lawsuit against the Canadian government and the Trans Mountain Pipeline company that halted the proposed $7.4 billion Trans Mountain pipeline expansion, which would ship tar sands crude oil from Alberta to British Columbia. The court determined that the Canadian government's environmental impact and public interest assessment for the project was flawed and failed to consult Indigenous peoples.
On Aug. 31, the Fond du Lac Band of Lake Superior Chippewa in Minnesota signed an agreement with pipeline company Enbridge and accepted an unspecified sum to allow the company to construct its proposed Line 3 pipeline through the tribe's reservation.
The Band was faced with having the pipeline skirt their reservation or pass directly through it, something Indigenous advocates say was a choice between two evils.
Prior to the agreement, the Band, along with other Minnesota tribes, had challenged a favorable environmental assessment of the pipeline by the state's Public Utilities Commission. The Fond du Lac Band dropped its legal challenge to the environmental assessment as part of the agreement, according to Frank Bibeau, legal counsel for Native environmental advocacy group Honor the Earth.
"You shouldn't have to trade your ecosystem to have quality of life and decent infrastructure, and that is basically what tribes are being forced to do," Winona LaDuke, Honor the Earth's Executive Director, said.
Phil McKenna is a Boston-based reporter for InsideClimate News. Before joining ICN in 2016, he was a freelance writer covering energy and the environment for publications including The New York Times, Smithsonian, Audubon and WIRED. "Uprising," a story he wrote about gas leaks under US cities, won the AAAS Kavli Science Journalism Award and the 2014 NASW Science in Society Award. Phil has a master's degree in science writing from the Massachusetts Institute of Technology and was an Environmental Journalism Fellow at Middlebury College.
ACLU Fears Protest Crackdowns,
Surveillance Already Being Planned for Keystone XL
As more states consider harsh anti-protest laws,
law enforcement trainings are raising red flags.
The ACLU accuses US agencies of
trying to hide the extent of it
Nicholas Kusnetz / Inside Climate News
(September 7, 2018) -- This story follows an in-depth ICN report on efforts to pass laws in 31 states to crack down on protests.
The Keystone XL pipeline is expected to draw protests from indigenous and environmental activists when construction begins, and many activists are worried law enforcement agencies may be planning surveillance and a militarized response. Now, the American Civil Liberties Union is accusing federal agencies of trying to hide the extent of these preparations, which the group says are clearly underway.
The ACLU and its Montana affiliate sued several federal agencies this week, including the Departments of Justice, Defense and Homeland Security, saying the agencies are withholding documents that discuss planning for the expected protests and any coordination among state and local authorities and private security contractors.
Fears about the law enforcement response follow the 2016 armed crackdown on people protesting the Dakota Access Pipeline, where authorities used tear gas and turned water cannons on protesters in freezing temperatures. Since then, dozens of bills and executive orders have been introduced in at least 31 states to clamp down on protests.
Activists say the bills are part of a concerted campaign by energy companies and their allies in government to suppress these protests by increasing criminal penalties for minor violations and in some cases trying to use anti-terrorism laws against activists.
The ACLU says documents it obtained from state agencies in Montana suggest law enforcement agencies have begun extensive trainings in preparation for the Keystone XL project, and that federal agencies are involved.
The records raise concerns that law enforcement agencies are preparing to stifle any protests even before they've begun, said Alex Rate, legal director of the ACLU in Montana.
"What we're concerned about is the surveillance and crackdown on peaceful protesters," Rate said. The records suggest law enforcement officers were given anti-terrorism and social media trainings in preparation for anticipated construction of Keystone XL and any related protests. "I think it would come as news to many people that the government is doing this to prepare for environmental protests about legitimate issues," he said.
The group submitted public records requests to six federal offices and agencies in January, but received only a small number of records in response so far. Some agencies have said they have no records matching the request, while others have yet to respond.
The Army Corps of Engineers provided some records but withheld others, saying they were exempt from disclosure because they would interfere with a law enforcement proceeding, among other reasons.
Montana Official: We're Just Doing Our Jobs
Documents that have been released suggest federal and state agencies have created an interagency team and have been conducting trainings for local law enforcement on how to handle the protests. One email from an intelligence specialist in the U.S. Attorney's Office in Montana to a state official said the office would be hosting an anti-terrorism training event in August.
A January email from David Loewen, head of the law enforcement division of Montana Fish, Wildlife and Parks, said the state's Division of Criminal Investigations had been in touch with officials in North Dakota "to learn what worked and what didn't" at Standing Rock during the Dakota Access Pipeline protests. The email noted that while "man-camps" to house workers would come along with pipeline construction and bring law enforcement challenges, "the primary enforcement focus is protest activity."
In an interview, Loewen said the ACLU's concerns about law enforcement agencies suppressing protests were "a bit silly."
"Our job is to prepare and train, that's what law enforcement does all the time," he said. "If we have a protest coming, chances are things are going to be peaceful and fine and dandy. But on the outside chance that they're not, we want to be prepared."
The Department of Justice did not respond to questions about the records or the anti-terrorism training. Burke Honzel, head of preparedness for Montana Disaster & Emergency Services, said his staff attended the anti-terrorism training in August and that it "did not discuss Keystone XL or protests and was geared towards overseas terrorism tactics."
First Amendment Rights and Protester Arrests
Environmental and indigenous activists have describe harsh treatment by law enforcement and security officers in Louisiana, where at least 13 people have been arrested under a new law since it went into effect on Aug. 1, including four activists who were detained on Tuesday.
The law created a felony charge with up to five years in prison for anyone who trespasses on a pipeline easement, and many of the arrests came under questionable circumstances. Activists posted photos and video of the most recent arrests on Facebook, including a video showing two uniformed officers assisting a man who was not in uniform and who is holding a protester against the ground, his arm across her throat, while putting her hands in cuffs behind her back.
The records obtained by the ACLU in Montana echo others in Oklahoma, Louisiana, Virginia and other states that have shown law enforcement agencies focusing anti-terrorism resources on environmental activists and, in some cases, cooperating with private security companies employed by pipeline companies to surveil and arrest protesters.
In a blog post announcing the organization's lawsuit, Jacob Hutt of the ACLU said the organization hopes to determine from the documents its requested how and whether federal agencies are "thwarting, surveilling, and otherwise engaging with indigenous and environmental activists" opposed to Keystone XL.
"The First Amendment protects political speech from the threat of undue government scrutiny, and the extent of such scrutiny is currently unknown," he wrote. "If the government is planning to prevent or monitor indigenous and environmental protests, the activists involved have a right to know about it."
Nicholas Kusnetz is a reporter for InsideClimate News. Before joining ICN, he ran the Center for Public Integrity's State Integrity Investigation, which won a New York Press Club Award for Political Coverage. He also covered fracking as a reporting fellow at ProPublica and was a 2011 Middlebury Fellow in Environmental Journalism.
His work has appeared in more than a dozen publications, including Slate, The Washington Post, Businessweek, Mother Jones, The Nation, Fast Company and The New York Times.
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