In Conversation: Standing With Standing Rock
Earthjustice attorney Jan Hasselman, lead counsel to the Standing Rock Sioux Tribe in their litigation, discusses the historic legal case and what lies ahead.
“This fight is about justice and sovereignty. And it’s not over.”
Update: On Jul. 6, 2020, the D.C. District Court ordered the Dakota Access pipeline to shut down. “It took four long years, but today justice has been served at Standing Rock,” said Jan Hasselman, the lead Earthjustice attorney representing the Standing Rock Sioux Tribe. Read more.
The fight to stop the Dakota Access Pipeline, which threatens the water and sacred sites of the Standing Rock Sioux Tribe, has grown into a global movement of solidarity with Standing Rock. Earthjustice is representing the Tribe in their legal challenges against the pipeline.
On March 22, 2017, Earthjustice attorney Jan Hasselman, lead counsel to the Standing Rock Sioux Tribe, discussed the historic legal case and what lies ahead. Abigail Dillen, VP of Litigation for Climate & Energy, spoke on how this fight has shaped other fossil fuel infrastructure battles, particularly in today’s political climate. The conversation, a teleconference with Earthjustice supporters, was moderated by Minna Jung, VP of Communications.
Conversation Highlights:
Introduction
Minna Jung:
The legal fight to stop the Dakota Access pipeline—a pipeline that has put the water and sacred sites of the Standing Rock Sioux Tribe directly in harm’s way—has become one of the most high profile cases that Earthjustice has ever worked on. Earthjustice is representing the Standing Rock Sioux Tribe in their ongoing legal battle against the Army Corps of Engineers.
Jan Hasselman is the lead counsel to the Standing Rock Sioux Tribe in their litigation against the Army Corps of Engineers regarding approval of the pipeline. He is a staff attorney at Earthjustice’s Northwest office in Seattle and has been with Earthjustice since 1998. Since that time, he has successfully litigated many issues including listings of salmon under the Endangered Species Act, stormwater pollution, coal-fired power plants, and coal and crude oil terminals.
Abigail Dillen is the Vice President of Litigation for Climate & Energy at Earthjustice, and she is leading our fight to shift from fossil fuels to 100% clean energy.
What started off as a fairly ordinary case has turned into a movement.
Jan Hasselman:
First, I want to say thank you to everybody that’s on the call. There are so many things that you could be doing with your day, and I’m really happy that you choose to spend it with us—or to spend a little time with us—and I particularly appreciate the opportunity to talk directly to people about our work here, because it is confusing, and there are misconceptions.
What an honor it is for me to represent the Standing Rock Sioux Tribe in this historic case, along with my co-counsel Patti Goldman and Stephanie Tsosie, who are also attorneys based in Seattle. We’re leading a team in every part of Earthjustice—from the leadership, to our outstanding Communications department, to our Donor Relations—that’s showcasing Earthjustice at its finest, doing what we do best, which is telling our clients’ story and helping our clients stand up for their rights.
To reflect back as we get into this conversation, it’s hard to believe that a year ago, nobody in the country had ever heard of the Dakota Access Pipeline. And almost nobody had ever heard of the Standing Rock Sioux Tribe.
What started off as a fairly ordinary case has turned into a movement. And the whole world has seen Indian country come together to rise up against the status quo that goes back 200 years and exercise real political power. Whatever happens with this pipeline, I don’t think that the world is ever going to look the same.
This case and this movement have expanded the narrative in which we talk about these issues. This is a fight over a big crude oil pipeline—but it hasn’t been primarily a fight about “keep it in the ground” or climate. It’s about justice and sovereignty.
And it has forced people to grapple with some of our history—our very awful history on how we treat Native people—and recognize that it’s not all in the past. When we think about the mistreatment of Native Nations, we have this image of black-and-white photographs—but it’s not. It’s happening today.
This fight has dropped a little bit out of the media eye, and there is a misconception that the fight is winding to an end. Some people think the fight is over. And it’s not over. We want to talk about that. We are still going strong in our litigation—and then there’s this entire movement, an Indigenous-led movement, that has been triggered here.
What is the Dakota Access pipeline?
Jan Hasselman:
Here are some basics on the Dakota Access pipeline: It is twelve hundred miles long, across a third of the continent. Starts in the Bakken oil fields of North Dakota, one of the nation’s top oil producing areas, and has a capacity of almost six hundred thousand barrels a day of oil.
That is a colossal amount of oil—the pipeline is 30 inches in diameter—that’s carrying well more than half of the entire production of the state of North Dakota over environmentally sensitive landscape.
The pipeline ends in Illinois, where it ties into existing pipeline infrastructure. And then that oil goes to refineries or potentially to export.
There was a fundamental injustice being perpetrated on the Standing Rock Sioux people. We are going to stand beside them, and fight it. And show the world what was happening.
Jan Hasselman:
Let me talk a little bit about how we got into this case. It was a little bit unusual. Most of the cases that we’re involved with come from long-standing partnerships with our clients, long-standing campaigns.
We don’t get a whole lot of cold calls of people asking for our help. But this one was a cold call. Standing Rock Tribe called us up out of the blue. They had heard about me and my colleague Kristen Boyles, because we had the honor of representing a group of Coast Salish Tribes here in Washington State in a proceeding about another pipeline, the TransMountain pipeline in Canada. They’d seen some of the news reporting about that, and they called us up and asked if we could help. So we took a look. And I said, ‘you know, it’s going to be hard. This is tough. There have been a lot of legal challenges to pipelines. They haven’t, for the most part, been very successful.’
And the reason for that is that our regulatory infrastructure for pipelines is deeply broken. Most people will be pretty surprised to learn that you do not need any overarching federal permit to build a major crude oil pipeline in the United States.
You need a state permit, and it probably won’t shock you to learn that it’s not very hard to get a permit to build a pipeline in North Dakota. But there’s no federal permit. And that means there’s no overarching environmental analysis—there’s no public, accountable, or transparent conversation about the risks, or the consequences, of these enormous pieces of infrastructure—whether you care about clean water, or wildlife, or climate. That opportunity isn’t there.
There is a bit of an asterisk on that, and under the law: under the federal Clean Water Act, any time a private activity touches water, whether it’s a wetland or a stream or a major river, you need a permit under the Clean Water Act from the Army Corps of Engineers.
But the way the Army Corps looks at things is really bizarre. It looks at a pipeline that crosses—the Dakota Access pipeline is twelve hundred miles long and crosses thousands of [miles of] streams, wetlands, and so on—but the Army Corps looks at each of those places where the pipeline touches water as a standalone, tiny pinprick of impact.
And it streamlines the permits for those under a system called the Nationwide Permit System, where you essentially have pre-authorization from the federal government. You don’t need much of a permit from the Army Corps. And if you’re thinking about the Keystone XL pipeline and you’re saying, “Well, wait a second there was a full environmental impact statement on that one.” That was different, because Keystone crossed an international border. So you need a federal permit in that instance which triggers the EIS [Environmental Impact Statement].
We recognized that the law was really hard. But the thinking was, we can use this case to help raise awareness about the problem and leverage some political opposition. In my mind, I was thinking, “Okay, we’ll have a couple dozen protesters at the courthouse when we go have a [legal] argument. Maybe we’ll get on the 6 o’clock news in Bismarck.” And as things turned out, the scale is quite a bit larger than that.
But we could see that although this was an uphill struggle, there was a fundamental injustice being perpetrated on the Standing Rock Sioux people. And we are going to stand beside them, and fight it. And show the world what was happening.
On the dramatic turn of events during the summer, fall, and winter of 2016.
Jan Hasselman:
Things moved very fast. We started working with the Tribe in earnest in April, to try to persuade the Army Corps to do something different at the Missouri River crossing that’s half a mile upstream from the Tribe’s reservation.
And as luck would have it, there is a little bit of federal land there, and some additional laws that require a slightly closer look than normally gets in the case. We were working hard to persuade the Army Corps to not issue the permit, to cross the Missouri at that place, where a pipeline spill wouldn’t just be on economic and environmental disaster. It would be a cultural disaster. It would be an existential threat to these people, who rely on the Missouri River, not just for drinking water and for irrigation of farms, but for the core of their cultural and spiritual essence, where the river has an impact.
We were working behind the scenes and succeeded in slowing things down. But in late July, the Army Corps issued part of the permits needed to cross the Missouri. And at that time, pressure had become very intense; the protest movement was in full swing. People were very nervous about the level of confrontations.
So we went into court seeking an injunction against continued construction of the pipeline. At that time, we were focused on a law called the National Historic Preservation Act. They didn’t have their permits yet to cross under the river. We were trying to get them to stop construction based on the impacts to Tribal sacred sites, that the Tribe had never had an opportunity to survey and to protect as the law requires. We moved for emergency injunction on that basis.
And in September, after some very intense litigation through the summer, the Court said, “No.” It declined to issue the injunction. And that was very disappointing for all of us. We thought we had good legal claims. But it highlights the fact that injunctions are really hard to get. The United States Supreme Court has made it very challenging to get a preliminary injunction in a case like this.
But the same day the Army Corps of Engineers and the Department of Justice and Interior issued this remarkable announcement. And, in fact, it came out only about 20 minutes after we got this decision from the Court—I was still reading the decision from the Court when it came out—and it said that the Tribe that raised some really important issues and they wanted to look harder at this decision to cross underneath the Missouri. And that they were going to hold off on the last permit—called “an easement”—that would have allowed that, until those issues got more discussion.
It was an amazing case of whiplash—both for our clients, who were very disappointed, and for us—to lose this initial motion—but then essentially get what we had been asking for, which is a closer look.
And so as the fall progressed, the litigation shifted where we got to a point where Dakota Access was suing the government for not issuing a permit, and we were working with the government to try to get this “hard look” that we think the law requires.
That all culminated in December when the head of the Army Corps of Engineers announced that they wouldn’t issue the permit until there had been a full environmental impact statement that looks at all the risks of oil spills, that looked at the scope and extent of the Tribe’s Treaty rights to clean water in the Missouri River, and then very importantly, looked at alternative locations for that crossing.
This was a historic victory. I think they’ll be talking about that day in Indian country for 50 years. It was a historic recognition of the Tribe’s situation. I think, for our clients, it felt like the first time they had actually been listened to.
Now, of course, then there was an election. And, as the saying goes, elections have consequences. And, like so many of the other values that Earthjustice seeks to protect, the values embodied in that decision were flipped and were thrown in the trash on the second day in office. Trump abandoned this new Environmental Impact Statement process and ordered the Army Corps to issue the permits.
And that, brings us to where we are today.
Environmental justice is at the heart of this issue, and it’s at the heart of our litigation.
Jan Hasselman:
There is a time-honored tradition in America of putting the risks and the pollution of industry and toxic sites on the people who have the least political power—primarily low-income people and people of color. The concept is environmental justice. And I’ve never seen a balder case of environmental justice concerns than this one.
The alternative route proposed by the company for this pipeline would have crossed just north of Bismarck, North Dakota. Bismarck is the capital city. It is 92% white, according to the Census. And it’s a relatively wealthy community. People said, “Oh no, you can’t put a pipeline there.” So they moved it to the doorstep of the Standing Rock Sioux Tribe’s reservation. They crossed the Missouri [River], literally, half a mile upstream. The Standing Rock reservation is one of the lowest-income communities in the country.
It is 85% minority and people there suffer from a legacy of dispossession of their Treaty resources that is still very real today.
The idea of moving a pipeline to place the risk on top of the people who can manage that risk the least is really galling. One of the things that we’re challenging in the lawsuit is the Army Corps environmental justice analysis which is really breathtaking in its arrogance. (If folks want to get into the details, we post all our briefs online.) The basic idea is they said there’re no minorities within half a mile of this crossing. And therefore there are no environmental justice problems.
But, if there’s an oil spill that goes downstream, that’s a river, and it goes directly into this reservation, which is the Tribe’s last remaining homeland after so many years of having their land taken away.
Environmental justice is at the heart of this issue, and it’s at the heart of our litigation.
The key merits of the case have never been heard. And these are formidable issues.
Jan Hasselman:
The litigation is not over. People need to understand that. [Standing Rock Sioux Tribe] Chairman Dave Archambault has been very clear that, even though the camp and the water protector part of this movement, that chapter, has closed—we’re in another chapter. And that chapter is a focus on the litigation.
At this point, there are many Tribes involved in the litigation, and there have been multiple efforts to get injunctions to shut down construction of the pipeline. They haven’t been successful, for the reasons I talked about—it’s hard to get an injunction.
But it’s important for people to realize that the key merits of the case have never been heard, even in a preliminary way. We are briefing those issues right now. They will be fully before the judge in a week. We hope to have a hearing sometime during April. And we hope to get a decision as soon as we can. And these are formidable issues.
The three key legal issues in the case: 1. Environmental Impact Statement. 2. Treaty. 3. Decision by the Trump administration.
Jan Hasselman:
The first key issue is about the Environmental Impact Statement. We have a law—the National Environmental Policy Act—that requires federal agencies, when they’re making significant decisions, to do a full Environmental Impact Statement (“EIS”) that looks at all the risks, all the consequences, and all the alternatives of that action.
We do EIS’s for dog parks. We do EIS’s for restoration activities and drinking water plants. The idea that we will be routing a 30-inch pipeline, carrying almost six hundred thousand barrels a day of crude oil, underneath a waterway that serves 17 million people, without an EIS, is completely nuts. That’s not a technical legal term—that’s just a statement of fact.
The law requires a full EIS. They can’t issue the permit until they have that “hard look” at all the risks and the consequences, particularly to the Tribe.
The second key issue is the Treaty. The history of the U.S. government’s treatment of the Sioux nation—the great Sioux nation—is an awful history. But, there is still a reservation, and the United States government is obligated by law to protect the integrity of that reservation—which includes protecting the integrity of the water on which the Standing Rock people rely.
When an agency makes a decision about a permit, they need to be looking out for the Treaty rights. The question in this case is whether the Army Corps did that. And we think they didn’t. They have these rote recitations: “Well, the risk of oil spill is low, and we can clean it up, and if the Tribe’s drinking water is fouled—we can provide them bottled water.” That’s not good enough—that isn’t protecting the Treaty. We are going to argue that the Treaty requires more.
And the third key legal issue gets to the decision by the Trump administration, to take all that good work of the previous administration—to look really hard at the Tribe’s Treaty rights, to do this EIS—and throw it in the garbage.
The law doesn’t prohibit government agencies from changing their mind. It does require that their decisions be based on facts and a thorough consideration of the circumstances. And so, when the president takes all that thoughtful work and says: “I like pipelines. Go build the pipeline.” That’s not good enough. We’re going to tell the judge that the flip flop of reversing itself and in issuing the permits was illegal.
That will all be briefed and decided, I hope, soon. People need to understand that the pipeline is likely to go into operation pretty soon, potentially this week. And that feels really bad. That is a psychological blow—but people need to understand that that doesn’t have any consequence for the legal case.
If the judge decides that the permit was issued illegally, then the pipeline gets turned off. And that is exactly what we’ll be asking him to do.
Tribes have been quietly leading efforts to send off the most environmentally destructive projects.
Abigail Dillen:
I want to talk a little bit about the power that the Standing Rock Sioux have built for all of us around the world. And how that can help us in an administration that’s effectively run by the oil and gas industry, who’ll be very interested in more—not fewer—future pipelines.
First, I want to repeat the thanks for everyone who’s on the call. And I hope we can call on you in the days to come—because not only is this not over yet (you’ve heard about the substantial legal claims that have yet to be decided), but this is a larger fight that’s just beginning.
It is crucial that we recognize the history that has already been made with the Standing Rock fight—and that’s being made at this moment. It shocks me when I learned that President Barack Obama was one of only four presidents ever to set foot on an Indian reservation.
It has been long struggle to even have sovereign Tribal rights recognized, to vindicate Indigenous rights—rights to protect water, to protect precious cultural and natural resources, to be able to say “no” to development, including energy development that threatens all of those precious resources, including our climate and the security of generations to come. Those rights have been trampled for centuries, and not just in U.S.
But Tribes have been quietly leading efforts to send off the most environmentally destructive projects—and particularly projects in the energy realm that have major consequences for the climate. And the Standing Rock Sioux are not alone. We’ve seen First Nations in Canada playing incredibly heroic roles in stopping new oil and gas pipelines, new [fossil fuel] export terminals. We see Tribes in the Pacific Northwest, who Jan and his colleagues in Seattle work closely with, using their power to block big new coal terminals, LNG [liquefied natural gas] terminals. We’ve seen partners of ours in Australia, Indigenous peoples, saying “no” to giant new coal mines.
Carbon bombs all around the world are being diffused through the courage and tenacity of Indigenous peoples and Tribes. And part of what they bring to the equation is a moral authority—but in many instances they bring legal rights and powers that are different in kind, that date back to treaties or land rights that they have the ability to exercise.
We see a straight line coming from the incredible example of Standing Rock, as a foundation to build on, as we fight an administration that will be pushing a rush to oil and gas.
Abigail Dillen:
What the Standing Rock Sioux have demonstrated, to Indigenous people and non-Indigenous people around the world, is that these powers are real, particularly when they are brought to bear in solidarity with lots of other folks, from people who are fighting climate change to veterans who are worried about seeing rights trampled at the camp.
What we are seeing is the coming-together of an unprecedentedly broad coalition that has been fighting for environmental justice, for sovereign rights and for civil rights—at the intersection of climate and the environment.
It’s a model for how all of us who care about justice can come together and make a difference. Jan mentioned the moment where we lost our injunction argument in court—but then we saw this unprecedented recognition from the federal government that they had not respected the rights of the Standing Rock Sioux, and they needed to do more.
As Jan said, no one’s going to forget about that soon. That was a demonstration of how to build power and change the course of events. And so win or lose this case—and we are doing everything we can to win it—but win or lose, there is energy that the Tribe, and all of the Tribe’s supporters, are not willing to let dissipate. And that includes Earthjustice, and, I hope, all of you on this call.
We have big fights ahead, where the same kinds of coalition can be very effective.
Keystone has submitted their application to get approval from this administration to go forward. That pipeline goes through lands owned by the Sioux and other Plains Tribes. The whole permitting system that let this huge pipeline go forward without the full environmental review, that Jan mentioned, should be a no-brainer.
That whole system is up for challenge. And we’re formulating our legal strategy.
And, frankly, we expect to see projects that have been shelved, perhaps revived—new projects that would lock us into fossil fuels for years to come if they go forward. But we expect them to be proposed and authorized with a degree of carelessness that will give us many ways in, if we have the right—both legal claims, but also a broad-based political opposition on our side.
We see a straight line coming from the incredible example of Standing Rock, as a foundation to build on, as we fight an administration that will be pushing a rush to oil and gas—but probably pushing it in a way that doesn’t give full shrift to the facts, to the law, and to the rights of Tribes and First Nations.
The battle is over all fossil fuel infrastructure. Why these fights have been so important.
Abigail Dillen:
The first thing I would say is, please, if you’re not already, join our [email and social media] lists and we can keep you apprised of all of the big projects that we’re fighting—and there will be many of them.
I’ll say a couple of the places that I think deserve a lot of focus. The first is Keystone. It was an enormous victory, and it’s one that has the profile and the investment of people around, not only the country, but around the world. And it will remain an iconic fight. There are new arguments about why it shouldn’t go forward. During these years when it was delayed, the economics around oil and the possibilities about clean energy have fundamentally changed.
There are very strong arguments for demanding further thought before any such pipeline is approved, and very strong challenges to an ill considered decision to reverse the Obama administration’s decision not to let the pipeline go forward.
Another area—and this is one that Jan knows very deeply—is the keys to the Asian market are all along the Pacific Coast. Whether it’s coal, or oil, or gas in the form of liquefied natural gas, fossil fuel producers in the U.S. are desperate to create new expanded ports and be able to ship American fossil fuels to Asia.
Through great work and great partnerships, we’ve been able to stop every single one of those proposals so far. And I think we were just getting to the point where some of the big companies were giving up. They may feel now they have a new lease on life, and some of these proposals should be done.
It will be important to keep the pressure on, and say “Absolutely not.” We’re not going to see the Pacific Northwest, the Salish Sea, California, become fossil fuel export hubs.
Jan Hasselman:
The battle here is over all fossil fuel infrastructure.
The reason that these are so important—whether we’re talking about LNG terminals, natural gas pipelines, crude oil pipelines, or coal export terminals—is that when you make an investment of $500 million in the case of a coal export terminal or $4 billion in the case of a crude oil pipeline, it’s more or less guaranteeing that that piece of infrastructure will be in place for the next 50 years. And we can’t afford that. We need to be doing everything we can to be getting off of fossil fuels as quickly as possible.
When you talk about mining or drilling, those things can stop. But when someone’s invested $4 billion in a crude oil pipeline, it’s going to be pretty hard to turn it off.
That’s why we have focused on these big pieces of infrastructure—big investments, including coal-fired power plants—where we’ve been hugely successful.
And, bringing this energy that came out of the camps, bringing that back to your own community and bringing the creativity on all the different kinds of advocacy tools, from beating up on banks that finance [fossil fuel infrastructure projects] to bringing shareholder actions, to bringing in the United Nations in talking about human rights. All of these tools can be replicated throughout the country.
Now that the pipeline is built, why is this relief not moot?
Jan Hasselman:
We talked about before that getting an injunction on somebody is really hard. There’s a full balancing test that brings in the costs to the other parties—the amount of harm, the likelihood of harm, that one might expect.
We’re not seeking an injunction. We’re seeking a very simple and straightforward remedy under the law, which is to vacate the permit—which essentially means, declare that a permit is unlawful. It’s not an injunction. It doesn’t require all this weighing of costs. It’s pretty much what is supposed to happen when an agency action is deemed invalid.
If they don’t have a permit, they can’t operate a pipeline underneath the river. It’s as simple as that.
Now I expect that, if that’s where we wind up, there’ll be lots of very interesting arguments made in very intense litigation over that. But we’re asking for a simple remedy: throw the permit out. And if you don’t have a permit, you can’t operate a pipeline.
Question about mootness: it’s already come up in the courts. Basically we’re saying we need a full Environmental Impact Statement that looks at all the risks and all the alternatives. And so yes, someone could argue the pipeline is built, there’s nothing to talk about anymore. But that’s not the way the law works.
If an agency is found to have violated NEPA [National Environmental Policy Act] by not preparing an EIS, then the action is thrown out, and they do the EIS. It happens all the time. It has come up in other pipeline cases. As long as you can turn that pipeline off. The existence of the pipeline isn’t that big of an issue if there’s no oil in it. As long as you can turn that pipeline off, there is still a remedy here. The issues that we’re asking for—an EIS and thinking about alternatives—isn’t moot.
Abigail Dillen
To add to that, the harm that we’re complaining to the Court about is not just from the construction of the line—but from its continued operation. The law recognizes that we can get relief from that ongoing harm if the causes of that harm is the agency’s failure to really look at the environmental consequences and follow the law.
This is not a North Dakota or South Dakota issue. It’s of national significance.
Jan Hasselman:
We’re in federal court. We filed this case in Washington, D.C., under the rules governing litigation. We could have filed in a couple of different places, but the Tribe chose to file it in D.C., in recognition of the fact that this is a national issue.
It’s not a North Dakota or South Dakota issue—it’s of national significance. The litigation has gone through multiple steps. There are now multiple Tribes involved. But it’s still essentially the same case that we originally filed back in July in front of a U.S. District judge in Washington, D.C.
How did the president have the legal right to change the EIS process?
Jan Hasselman:
The thing that Trump did was not an executive order.
It was actually sort of a “nothing.” It was called a “presidential memo.” And it directed the Army Corps to issue the easement. But it said, ‘issue the easement to the extent allowed by law, and to the extent warranted.’ It essentially put the ball back in the Army Corps’ court.
So it was the Army Corps that bowed to political pressure and did something, in our view, illegal, that really is the focus of the lawsuit—more so than the president’s specific action. So we haven’t named Trump as a defendant in the litigation. The focus really is on the Army Corps’ failure to take that “hard look” at spill risks and the Tribe’s Treaty rights when it issued the permit.
On amicus briefs, and what people can do to help.
Jan Hasselman:
One thing, I want to make sure people understand is that, calling the judge, and urging the judge to do the right thing, is not helpful. At one point, early in the proceedings, the judge noted that his office was besieged with calls—and that it wasn’t particularly helpful for our cause. And that’s right; that’s not how courts operate.
Now, the question was about amicus briefs. For those who aren’t familiar with this term, an amicus brief is literally in Latin “a friend of the court,” an entity that’s not a party to the litigation, submits a brief sharing some important perspective or additional facts which might not be in the record that can help provide some context for the case. There have already been five amicus briefs filed.
The primary one is led by the National Congress of American Indians, and is joined by a large number of Indian Tribes and Nations around the country supporting our effort. There have been other Tribal organizations that have also weighed in with amicus.
I wouldn’t say that besieging the Court with lots of additional amicus is going to be terribly helpful. I think this Court is certainly aware that there is enormous public interest and passion around this issue. Every time we show up in court, even if it’s for a status conference, there are packed courtrooms and overflow rooms. So, unless it’s an amicus from some entity, for example, a group of states or Attorneys General, I would discourage people from hauling off and filing a whole bunch of amicus briefs. The judge has a lot to read.
Let me also just address one other thought about what else can we do. I am a little troubled that this issue has kind of dropped from the public consciousness after the closure of the camps. You don’t see it in the newspaper everyday like you used to. You don’t get that sense that it’s on the front burner.
If we are successful in this litigation, I would expect that there will be activity in Congress to try to exempt the pipeline from laws like NEPA. And so I think it is important for people to start talking to their elected representatives in Washington and their governors—to the extent their governors carry that message—that you care about this issue, and you want them to fight for the Tribe and do the right thing. And that’s true whether you live in a red state or a blue state.
Our elected leaders need to be hearing about this issue.
What role can the United Nations play in this case?
Abigail Dillen:
It is already playing a role in the case. We and some other lawyers have brought a petition to the UN to investigate human rights violations. A rapporteur is investigating that. In the U.S., we often think about human rights problems as being somewhere else, but they are right here at home and, particularly given an administration that’s maybe more willing than others to trample those rights, the UN can play an important role in keeping, as Jan says, this issue front and center, and bringing the correct spotlight to true abuses in this country and for the international community.
It’s a soft kind of advocacy, what the UN does. They can’t order President Trump or the Army Corps of Engineers to do things differently. But it’s an influential body, and we’re bringing that pressure to bear, in addition to the great federal court litigation that Jan is leading.
Optimism isn’t a state of mind. It’s a choice about how you’re going to live your life.
Giving hope: ‘Courts’ and ‘Clean Energy.’
Jan Hasselman:
I heard a quote recently which really resonated with me, which is: optimism isn’t a state of mind—it’s a choice. It’s a choice about how you’re going to live your life. A lot of us are shocked and confused by the results of this election.
But there’s one thing I know for certain: the American people did not vote for polluted air, and polluted water, and dead wildlife, and a wrecked climate. I don’t know quite why they voted the way they did—but I’m pretty sure that it wasn’t for that.
And I’ve been inspired by my colleagues at Earthjustice. All of us had this shocked reaction that felt very, very dispiriting. And then, every one of the people that work here picked themselves up, shook up their malaise, and said, ‘We’re going to fight, and we’re going to fight every day. Because this isn’t what people want.’
I’m not trying to say that it’s all going to be easy or that we’re going to win every battle, because we’re not. But I’m inspired to fight every day. And ultimately, the pendulum will swing back.
Abigail Dillen:
Two things give me hope, both start with the letter ‘C.’ One is ‘courts’; the other is ‘clean energy.’
I imagine everyone on this call felt the way we did when we saw a court immediately strike down the Muslim ban. Courts are extremely powerful venues for us. And, I think one of the most important things everyone on this call can do is recognize that courts, and laws that allow the public interest to be vindicated, will be under fire—not only by President Trump, but by this Congress. It is where our power to resist, and to preserve, lies.
And this is a moment where Congress will be going after our ability to use the courts to vindicate the rights of minorities, and the environment, and civil rights—all of the values that we care for and that add up to justice.
I feel extremely confident that we can protect these institutions because the public recognizes how important they are at this moment—and it may be an important moment even to make strides, not only to preserve the access to the courts that we have now, but to keep the courthouse doors open even more broadly in the future.
So, while I feel afraid about some of the structural parts of our democracy that are under fire, I think the threats have become so stark and so visible that we can make some progress in protecting them for generations to come.
And the other thing I’ll say is that clean energy is here. And it’s a money-maker. I have never in my career seen environmental protection and economic momentum so closely aligned. From Iowa to North Dakota, whether it’s wind, or solar, or energy efficiency that’s working at scale to save people money, these are all alternatives to fossil fuels that are here and that have momentum behind them, not least because Earthjustice is going to be fighting for clean energy every day.
This text is edited and condensed from the audio recording.
It may not be in its final form and may be updated or revised in the future.