Standing Rock: Environmental Justice, Social Movement, and….Property Law?

December 6, 2016

Over the last few months, the Standing Rock Sioux Tribe of North Dakota have been in the international spotlight for their stance on an oil and gas project developed and engineered by Energy Transfer Partners, a Dallas-based natural gas pipeline company. For those of us who work in the oil and gas field, Energy Transfer Partners is not a ‘new’ player in oil and gas transmission, as they have been in business since 1995 doing pretty much the same infrastructure and pipeline projects for the entire time. What has changed over that time, however, is the scope and footprint of their projects. In 2002, Energy Transfer Partners had only 200 miles of mainly intrastate pipelines under their management. Now, in 2016, Energy Transfer Partners actively manages over 71,000 miles of natural gas pipelines across the United States—and growing.  

 

It is the “and growing” portion of the last paragraph that may be surprising to some people. Energy Transfer Partners has participated in a large number of interstate oil and gas pipeline projects, many of which—including the more recent and controversial Dakota Access Pipeline (shorthanded by many as the “DAPL”)—have been in either the planning or construction phase for a number of years. Most of these pipelines have been completed. A number are in the process of being expanded, re-routed, or rehabilitated. To gain some understanding of the scope and number of these pipelines, take a look at Energy Transfer Partner’s website regarding their pipelines. The link can be found by clicking here.  

 

For many lawyers (myself included) the most interesting aspect of the Standing Rock situation over the past few months has very little to do with pipelines. The truth of the matter is that pipelines are everywhere. When oil and gas are produced, that is only the first step. These products have to then be transported from where they were produced to some identifiable market. That transportation can take place in the form of tanker trucks, rail, barges, or—in this case—underground pipelines. And although this has been true for decades, the bigger issue that is of interest to me and many others is not the pipelines themselves. It has been the very delicate interplay of this project transposed over greater issues of environmental justice, social justice, and…property rights.

 

Yes. Property rights!!

 

Most of us are aware that ownership of property can take many forms. You can own the surface (in part or as a whole). You can own the sub-surface (also, in part or as a whole). And, in your ownership of either the surface or sub-surface, you can grant away all or a portion of your rights in the form of an easement or lease. For those of us who have been following the activities at and around the Standing Rock Sioux Reservation, the notion of an implied easement as well as an actual (in-fact) easement have been highlighted in a way that I find to be quite interesting.

 

Many argue that the current easement for the Dakota Access pipeline is not situated on the Standing Rock Reservation as recognized by the U.S. Army Corp of Engineers. In fact, the pipeline easement sits approximately one half mile north of the Standing Rock Reservation boundary. That said, members of the Standing Rock Sioux state that the easement does in fact cross tribal property as articulated in a treaty between the Standing Rock Sioux and the United States that was drafted in the 1800’s. As such, the Standing Rock Sioux argue that this easement is posed to disturb sacred burial plots and lands of tribal significance when referenced back to the treaty. It is this “present recognized boundaries” scenario that is worth considering, as the Standing Rock Sioux have undoubtedly seen their tribal lands shrink over time. For an incredibly worthwhile read on how this project plays out over the history of the Standing Rock Sioux, take a look at this New York Times piece on the Standing Rock Sioux that can be found here.  

 

As a practitioner of property law as well as an individual who is incredibly sensitive to environmental justice concerns that come about from energy development, I bring this issue up on this blog as a means of fostering a shared understanding and ongoing discussion of a few concepts that oftentimes play out in our own communities, but not in a way that has galvanized the attention of the nation—and the world—like it has with the Dakota Access Pipeline and the Standing Rock Sioux. As I’m writing this blog post, the U.S. Army Corp of Engineers has done an about-face and denied the easement that was granted to Energy Transfer Partners, in effect stopping the project as it is currently sited. For an in-depth discussion of this easement permit denial, take a look at this NPR article that was posted a few days ago…you can find the article here.  

 

This denial will pretty much stop the project as it is presently drawn up, and require all parties to take a fresh look at the pipeline as well as any environmental and societal issues that may arise from the pipeline. This will require all sides to consider potential harms to people, sensitive wetland and wildlife habitat, and a myriad of other items of importance. It will also require a fresh look at social justice issues (Such as why the pipeline was allowed here in the first place? Was it re-routed to provide fewer disturbances to one population at the expense of another?) as well as environmental justice issues (are there air, soil, groundwater, or surface water issue that would disproportionately affect one population more than others?). These are what I always call the “hard look” criteria of property rights and property law, and this is inevitably where we as communities get to have tough and oftentimes uncomfortable discussions about the things that matter most.

 

In closing, I think it is really interesting to take the lessons learned from the ongoing activities in North Dakota and see how they play out in areas that may be closer to our own front doors. Do you know of any energy easements that have impacted your rights to your own property? Are you concerned about how this may play out in your own neighborhood? What types of environmental justice issues surround you and your community? Sometimes simply being aware is the first step in making a profound change in how you engage with the concepts or property rights, easements, and environmental issues in your own lives and within your own communities.

 

This is an admittedly heavy issue with no simple or clear answers. But I found the happenings in North Dakota to be salient enough to devote an entire blog post to the topic. What do you think? How will this ultimately be determined? I don’t think we are at the end of the Standing Rock Sioux/Dakota Access Pipeline saga. I believe in some iteration that this is simply the beginning.

 

Happy Reading Everyone!!

 

Until next time,

Your friends at the RS & E Group  

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