Law, Politics and Pipelines

George Koch
August 7, 2018
If you live in Burnaby, B.C., or are planning a visit in the next few months, consider taking some time to visit “Camp Cloud”, the ramshackle village created to protest the Trans-Mountain pipeline. Best to go soon, before it mutates into something like the massive, filthy, dangerous protest favella that grew up around a North Dakota pipeline project in 2016. U.S. President Donald Trump ended the “Standing Rock Resistance” with bulldozers and the National Guard soon after he took office in 2017. There are many similarities between the Dakota Access and Trans-Mountain pipeline stories, except we don’t yet know the ending of the latter. George Koch previews what may be in store for Burnaby with a detailed account of the anarchy that descended on Morton County, North Dakota.

Law, Politics and Pipelines

George Koch
August 7, 2018
If you live in Burnaby, B.C., or are planning a visit in the next few months, consider taking some time to visit “Camp Cloud”, the ramshackle village created to protest the Trans-Mountain pipeline. Best to go soon, before it mutates into something like the massive, filthy, dangerous protest favella that grew up around a North Dakota pipeline project in 2016. U.S. President Donald Trump ended the “Standing Rock Resistance” with bulldozers and the National Guard soon after he took office in 2017. There are many similarities between the Dakota Access and Trans-Mountain pipeline stories, except we don’t yet know the ending of the latter. George Koch previews what may be in store for Burnaby with a detailed account of the anarchy that descended on Morton County, North Dakota.
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Even if all the legal and political roadblocks to expansion of the Trans-Mountain Pipeline were somehow magically resolved tomorrow, it would still face a large, determined, and well-funded protest movement that insists it will never let the project go ahead. Already there have been ugly confrontations between authorities and protesters at the main “Camp Cloud” resistance site near the tidewater terminal in Burnaby, B.C., plus skirmishes elsewhere along the pipeline route in the province’s interior. The prospect of indigenous-led protesters digging in against the pipeline has evoked memories of the 1990 Oka Crisis, the armed bloody stand-off over a Quebec golf course expansion that haunts politicians in Ottawa to this day.

David Dodge was a senior official in the federal finance department at that time (and later Governor of the Bank of Canada). Now retired but still an influential advisor to governments and business, Dodge gave a startling interview to Bloomberg in June in which he warned that Trans-Mountain protesters’ increasing fanaticism and lawlessness could have deadly consequences. “We’re going to have some very unpleasant circumstances,” he said, predicting that some people “are going to die in protesting construction of this pipeline.” Dodge was widely panned for escalating the rhetoric, but one of the leaders of the Trans-Mountain protest soon replied in kind. Kanahus Manuel, leader of a group of indigenous women called the Tiny House Warriors, whose stated plan is to assert native title by erecting miniature structures along Trans Mountain’s route, predicted that the protests will mushroom into the “Standing Rock of the North.”

Each prediction seems apocalyptic in its own way. The Standing Rock saga – centred on a huge and often violent protest against the Dakota Access Pipeline or DAPL project in North Dakota – may well be a harbinger of what’s coming to Canada. Should that happen, Dodge may be proven right – about the violence if hopefully not its lethality – while Manuel, for her own sake, should hope she’s wrong.

The Standing Rock story, like Trans-Mountain, involved years of litigation, political and bureaucratic duplicity and inertia, and, towards the end, a massive and chaotic protest camp. It was marked by wildly exaggerated claims that protesters had been abused, mishandled or threatened by a law enforcement response that was not merely heavy-handed but evocative of Nazi Germany. In truth, the risks of suffering actual violence fell almost entirely on law enforcement officers, landowners and townspeople suspected of opposing the protesters. Thankfully, no one on either side was killed or maimed.

Finally last year, owing to the Trump Administration’s firm pro-pipeline policy and determination to enforce the law, the Standing Rock protesters were unceremoniously evicted, the last few dozen stragglers arrested as their massive camp was bulldozed, and the last leg of the pipeline was completed. The DAPL had its one-year anniversary this June, having already transported tens of millions of barrels of oil from North Dakota’s Bakken oilfields to eager markets. Canada’s energy sector, pro-pipeline governments and the clear majority of polled Canadians who support the pipeline should indeed hope that Trans Mountain becomes “the next Standing Rock”.

Such an outcome, of course, demands that Canadian governments muster the willpower and fortitude of the U.S. Administration. The early auguries are mixed. In mid-July, when the Tiny House Warriors planted themselves on a provincial campground near the pipeline route north of Kamloops, B.C.’s NDP government immediately closed the site to paying campers and initially made no attempt to eject the trespassers. After campers howled, the protesters were served with an eviction notice and Manuel was even arrested. Another group recently set up a solidarity protest camp at the Manitoba-U.S. border, beside a pipeline operated by Enbridge Inc. Last month it took about 36 hours for police to end a Greenpeace-choreographed stunt involving protesters hanging from a bridge to prevent oil tankers from reaching the Trans-Mountain terminal. Over 200 people have been charged with contempt for violating an injunction against disrupting construction at the terminal, and last week two of them were handed seven-day jail terms. In Burnaby, Mayor Derek Corrigan’s formerly sympathetic attitude towards Camp Cloud has hardened as local ratepayers have grown increasingly irate about what amounts to a giant hobo camp in their neighbourhood. As for the Trudeau government, beyond repeating its commitment to seeing the project completed, it has not said anything about how far it’s willing to go to do that, since former Resources Minister Jim Carr in 2016 mused (and quickly backpedalled) about using the army to enforce the law.

A “Tiny House” en route to protesting the Trans Mountain pipeline.

The pipeline that became a “shit show”

The DAPL was to be a 30-inch, high-pressure pipeline carrying 500,000 barrels per day of crude oil gathered from the Bakken and Three Forks fields in northern North Dakota to an Illinois pipeline hub about 1,200 miles southeast, from whence the crude could access markets in the U.S. Midwest, Northeast and Gulf Coast. The US$3.8 billion project is owned by Energy Transfer Partners LLC, which operates 70,000 miles of pipeline. DAPL would provide the first significant pipeline outlet for a producing region that, thanks to horizontal drilling and multi-stage hydraulic fracturing, has quickly grown into America’s second-largest oilfield. Like the Trans-Mountain expansion, DAPL would be a critical piece of energy infrastructure supporting tens of thousands of jobs.

As with Trans-Mountain’s original proponent Kinder Morgan, Energy Partners spent years patiently grinding through the regulatory and legal process. It obtained over 1,000 agreements or approvals in four states, held nearly 400 meetings, and made 140 modifications to its routing. Over 99 percent of its carefully chosen right-of-way was on private land, much of it running alongside the existing Northern Border natural gas pipeline. That was another similarity to the Trans-Mountain project, which involves twinning a pipeline that has been in operation since the 1950s. Although none of the DAPL route traversed any Indian reservation, the process included 55 meetings at which one or more tribes (still the preferred nomenclature south of the border) was represented. By 2016, all four states had approved the pipeline, as had all but one tribe: the Standing Rock Sioux. For still-mysterious reasons, they abjured multiple invitations to take part in the regulatory process. Eventually their absence was defined as a “boycott”, implying protest motivated by virtue, although it was later learned that the Sioux also rebuffed or sabotaged the U.S. Army Corps of Engineers’ extraordinary efforts to hold separate consultations.

The only portion of the route under federal authority was a 1,100-foot-long water crossing of Lake Oahe, a narrow reservoir backing up a portion of the Missouri River, near the town of Cannon Ball, pop. 908. At the crossing, coincidentally, a short section of the pipeline comes within a couple of miles of the reservation’s northeastern tip. By spring 2016, virtually the entire line was laid; only the crossing remained. Energy Partners’ plan seemed thorough: the site already accommodated major pipelines, and the DAPL line would run far deeper, through ancient, geologically stable rock. An easement was required from the Corps of Engineers, which has authority over many of the country’s dams and reservoirs. Given that DAPL would be just one more on a list of some 2,800 pipeline river crossings in the U.S., approval was expected.

And then everything fell apart. In spring 2016 opponents calling themselves the “NoDAPL Movement”, with support from big-name eco-activist organizations like Greenpeace, the Sierra Club, the Tides Foundation, and the Rockefeller Foundation, plus extreme radical groups like “EarthJustice” – and, it was later revealed, indirect funding from billionaires Tom Steyer and George Soros – flooded in from across the U.S., Canada, and around the world, illegally setting up their “Spirit Camp” on federal land. Similar tactics combined with intense political pressure had killed the much larger Keystone XL project (or so they thought); here in Morton County, North Dakota, they could strike the second huge blow in barely a year against the hated fossil fuel industry.  Soon enough, as one reporter pointedly noted, protesters were arriving at the new camp by petroleum-powered aircraft and cars, and firing up propane heaters whenever it got cold.

The Standing Rock protest reportedly grew into the second largest GoFundMe campaign of 2016, raising an astonishing $40 million. The widening spectacle drew in climate change star activists like Bill McGibben and Hollywood celebrities such as Jane Fonda and Leonardo DiCaprio. The scene heated up further after the Corps of Engineers’ issued initial water crossing approvals in July.

The narrative was distorted out of recognition – or remanufactured altogether. The pipeline’s route had been mysteriously shifted “onto” the Standing Rock Sioux reservation in public discourse. Dubbed “the Black Snake”, the line was demonized as an inevitable cause of future oil spills – even though Bakken oil was already moving by rail and truck, statistically five and 35 times more spill-prone, respectively, than the pipelines, which would replace 500-700 railcar loads and 250 tanker truckloads per day. The Standing Rock Sioux, interestingly, already allowed oil-laden railcars to cross their reservation – as long as the oil was produced by companies owned by other tribes.

Another canard was that the pipeline created new environmental risks, even though it paralleled existing fossil fuel pipelines. It was said to threaten the Sioux’s drinking water, as ubiquitous “Water is Life” protest signs proclaimed. This was a double-distortion given that the Missouri River has by this point in its journey traversed numerous towns, cities and industrial sites plus millions of acres of farmland that all drain into the watershed. The Sioux had miraculously survived all that and, in any case, were getting a new freshwater pipeline drawn from the opposite direction.

Perhaps most egregiously, the protesters cloaked their actions in virtuousness passed down from superannuated leftists of yore, claiming to be and almost invariably described as “peaceful”, “unarmed” and/or innocuously exercising their First Amendment rights. But still photos from this protest camp routinely show burning tires, blocked roads and masked people brandishing tire irons, baseball bats or wooden clubs. Allegedly innocuous Indigenous prayer events involved blocking a public highway with debris and even improvised spike belts.

The “protests” included storming and destroying fencing, attacking construction workers, vandalizing or torching $10 million worth of construction equipment and injuring multiple members of a security crew guarding construction workers. Vandalism, including killing of livestock, occurred so often the North Dakota Agricultural Commission had to set up a hotline for local ranchers. These were not merely the actions of a militant fringe; when U.S. Green Party presidential candidate Jill Stein visited the site, she vandalized property and was arrested.

Attempts to enforce the law were routinely denounced as sinister, threatening, heavy-handed, or nefariously in league with private security contractors. Extravagant claims on social media accused law enforcement of using tear gas, rubber bullets, sound cannons and concussion grenades. One protesters’ camp was allegedly torched, a story illustrated online with decade-old movie footage depicting burning teepees. Protest rhetoric proclaimed “major human rights violations” and broken “laws of humanity”. Chase Iron Eyes, a local lawyer (and “Indigenous jihadist”, according to his detractors) dubbed the U.S. government an occupying power and “corporate terrorist state”.

The monkeywrencher-in-chief

Far from enabling a heavy-handed takedown of the protesters, the Obama Administration spent much of the period starving law enforcement of the resources needed to end the protests firmly but peacefully. The 33-member Morton County Sheriff’s Department was for months on end left alone to handle protesters often numbering in the thousands. Consequently, highways and bridges remained blocked – sometimes for months – oilfield equipment in remote areas was left unguarded (and, consequently, vandalized), and local people and their businesses were left largely unprotected from the unruly mobs who effectively occupied their small rural community. One local hardware store owner received death threats after someone posted a rumour that he was refusing to sell camping equipment to protesters.

The Sheriff’s Department reported that its officers were the targets of hurled Molotov cocktails and other improvised explosive devices, and actual gunfire. After committing vandalism, blocking roads or intimidating people, protesters would retreat onto the reservation – where only federal law enforcement could follow. At one point, fearing for its officers’ safety, the Department pulled out altogether – leaving the area officially lawless.

Cyberspace anarcho-activists “Anonymous” issued an ominous video voiced by someone in a Guy Fawkes mask. It claimed that the protesters were peaceful and were all Native Americans, that murderous intervention by the was imminent, that the pipeline would poison the drinking water of the entire “heartland”, and that North Dakota’s government was corrupt and taking bribes from the pipeline builder. The video threatened to “dox” or release the personal information and addresses of pipeline workers, law enforcement officers and others. The digitally-disguised, British-accented voice chillingly concluded: “We are Anonymous. We do not forget. We do not forgive. Expect us.” After months of passive neglect, Washington finally intervened with the FBI. According to the National Sheriffs’ Association, of the ultimate arrest tally of 595 protesters, just 6 percent were from North Dakota, with 192 arrestees boasting a total of 1,200 previous citations and charges, including 26 with a history of violence.

In spite of everything, the DAPL project continued to inch forward. In September 2016, federal courts rejected the Standing Rock Sioux Tribe’s demand for a construction-blocking injunction, saying all regulatory requirements – including full consultation – had been fulfilled. As an article in Investor’s Business Daily noted, in language familiar to followers of domestic indigenous land and entitlement claims and protests in Canada: “…the [tribe] and its allies have sought to turn the entire dispute into a re-examination of the entire history of the troubled relations between the United States government and the Native American tribes, on the perverse logic that any misdeeds that took place over a century ago justify a departure from the applicable legal rules governing the case…” Remarkably, the federal Department of Justice had actually sought to intervene in the case in favour of the Sioux and in opposition to a fellow federal body.

Scenes from the Standing Rock occupation.

By late autumn 2016, clearing the last major hurdle, the Army Corps of Engineers easement for the water crossing, seemed imminent. In late October, authorities finally started removing illegal roadblocks and putting out the fires behind them that filled the skyline with columns of black smoke (described as part of a “peaceful prayer vigil”). Ominously, however, soon-to-retire President Barack Obama now called for a “voluntary” halt to further construction and pressed Energy Partners to explore alternative routes (all of which had been evaluated and discarded years earlier, as they were longer and passed through more environmentally sensitive or more heavily populated areas).

Like several actions during the Obama presidency, it was a subtle form of legerdemain to circumvent or sabotage a legal outcome he or key constituencies didn’t like. On cue, on December 6, the Corps of Engineers announced it was delaying the final easement. Soon thereafter the Administration announced it was denying the permit. In effect, although his party had lost the election and he was just weeks away from turning the White House over to Trump, President Obama was overturning all of the decisions and permits issued by his own federal agencies, without justification. The planned re-review of everything promised years of further delay if not outright cancellation of the project

For Energy Partners, it was a bombshell. The company had followed every procedure and satisfied every requirement of state and federal law and regulation. The pipeline’s technical specifications exceeded current standards. The company and the Corps of Engineers had gone out of their way to engage the Sioux outside the formal process the tribe had ignored, and to accommodate concerns like sacred artifacts turning up during final excavation. Now, all that wasn’t good enough. In the endlessly elastic context of historical injustice, the current consultative process was inadequate. There had to be more, however pointless and repetitive. Indefinite limbo seemed the desired outcome.

Obama’s intervention, or the federal courts’ pro-pipeline rulings, or perhaps both, re-energized the protest movement. By late fall their numbers had swelled to as many as 5,000 illegal campers. But winter was descending on the northern plains. Many protesters, like clueless naïfs in a modern Children’s Crusade, showed up in North Dakota without winter clothing. Most residents in the surrounding towns and even some of the Standing Rock Sioux were by now wearying of the occupation of their community by the ragtag green army. One native leader called it a “shit show”. The Sioux actually nixed the protesters’ plea to build a new winter camp on the reservation and formally demanded they leave the area altogether. Other North Dakotans generously provided shelter for hundreds of the ill-prepared, ill-clad people whose purpose was to sabotage a key part of the region’s economy.

The Trump cavalry arrives

Time finally ran out for the protestors on January 24, 2017, when new U.S. President Donald Trump, just four days after his swearing in, formally directed the Secretary of the Army to “review and approve” the Corps of Engineers’ final permitting steps “in an expedited manner”. Given Trump’s penchant for exaggeration and erratic behaviour – and lack of a track record at the time – some wondered whether this was anything more than bombast.

But the DAPL finale proved an early indicator that Trump not only intended to keep his campaign promises but also had the mettle to do so. He soon met in the White House to hear the National Sheriffs’ Association’s plea for increased federal help in clearing out the protesters. On February 8, Energy Transfer received its critical easement and, meanwhile, the Corps of Engineers declared that the protesters’ camp would be closed on February 22. The courts denied a Sioux request for temporary injunctions to delay final construction. North Dakota’s new governor, Republican Doug Burgum, issued an emergency evacuation order, permitting law enforcement to forcibly empty the camps.

While the Indigenous Environmental Network vowed a new round of “massive mobilization and civil disobedience”, and other groups echoed the threat, it never happened. Most of the protesters left relatively meekly, with a mere 33 arrests on the final day. But they left a lot behind: veritable mountains of camping detritus, garbage, hundreds of vehicles, human excrement, fuel and other chemicals, abandoned dogs, and even the body of one protester, found dead in a creek. The cleanup was urgent. Government authorities feared the coming spring melt would wash toxic camp effluent into the very watershed the protesters claimed to worry about. Crews removed 8,170 cubic yards of garbage and burned vast amounts of other trash. Combined cost: over US$1 million, on top of the law enforcement costs of US$32 million. Over 1,000 acres of land was affected. Trump, without exaggeration, called it an “environmental wasteland”. The environmental movement did not lift a finger to help.

The crossing beneath Lake Oahe was finished within weeks of Trump’s order, and the new pipeline was filling with oil by March 2017. It commenced commercial operations that June. While anti-industry vandalism didn’t completely cease, it was nothing like before. The pipeline has lived up to its promises of providing jobs, erasing the pricing discount suffered by previously trapped Bakken oil, pouring US$110 million per year into the small state’s treasury, and enabling the pipeline operator to shower local charities with donations. The DAPL, to say the least, is now very popular in North Dakota.

An intriguing side note is that Energy Transfer and others have launched a $1 billion lawsuit, based on the U.S.’s infamous RICO statute, alleging a criminal conspiracy to stop the pipeline in the name of protecting the environment. Called “The Enterprise”, its members are said to include a host of big-name environmental groups.

Apparently, the Sioux themselves have had serious second thoughts. Dave Archambault, chief of the Tribal Council, publicly stated that the new pipeline would “not kill our nation” or even be “detrimental to our nation”. He dismissed the rallying cry “water is life” as a mere “tagline”, pointing out that while water sustains life, mere protest would not improve the lives of his Tribe’s members. He also disclosed that, of the $40 million raised on the Sioux’s behalf, the tribe could only account for $11 million. The rest was used, misused or purloined by other, still-unknown parties. Other activists, however, such as Holy Elk Lafferty, said the year at Standing Rock had provided the native protest movement with invaluable training and insight, from which activists could fan out around the “globe” in a “continuum” to keep up the “fight”. No doubt B.C. will be one destination.

DAPL may serve as a blueprint, an inspiration or a warning of what’s to come for the Trans-Mountain project. Or perhaps a bit of all three. One obvious difference is that in North Dakota, local and state public opinion and governments were almost entirely pro-pipeline, and local law enforcement did all it could to enforce the law. In the case of Trans Mountain, protesters have plenty of support among local lawmakers and the public. Conversely, DAPL was too small a project to have much effect on American public opinion nationwide, even though it stirred significant constituencies. In Canada, by contrast, polls indicate broad national awareness of the Trans-Mountain pipeline dispute and substantial support for the project. Support may have strengthened since the Trudeau government moved to nationalize the project, and it may increase further if Ottawa succeeds in recruiting other investors including the Alberta government and some pro-pipeline indigenous groups. But when the time comes next year to actually start laying pipe, who will prevail, the government or the protesters? DAPL’s fortunes turned decisively with the change in presidents. No such event appears imminent in Canada. The fate of the Trans-Mountain pipeline hinges on the political leadership we’ve already got.

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