Opponents of the Dakota Access pipeline are racing against the clock, with legal action their best hope of stopping the project before oil begins to flow.
Lawyers for the Standing Rock Sioux Tribe will file a motion this week asking a federal judge to rule on the legality of the project. And a separate tribe is suing against the pipeline on religious grounds, saying it threatens water sacred to American Indians.
“Construction has started. We are going to try to get these issues resolved before oil can flow, and so we’re moving very aggressively to put the legal questions in front of the judge and get a determination as soon as we can,” Jan Hasselman, the Earthjustice lawyer who represents the Standing Rock Sioux, said after a Dakota Access hearing on Monday.
Up to now, opponents of the pipeline had been asking the courts to temporarily halt work on a span of Dakota Access that would run under Lake Oahe in North Dakota.
Tribes in the region say Oahe has both practical and religious purposes. The lake — which is on the Missouri River — provides drinking water for Standing Rock and ceremonial water for the Cheyenne River Sioux and others in the region.
But the tribes are shifting their strategy now that the Trump administration has issued an easement allowing construction of the pipeline span under the lake.
Dakota Access developers broke ground on the span last week after the easement decision and are aiming to lay the pipeline and begin pumping oil soon, possibly within 45 days, a company lawyer said on Monday.
Hasselman said Standing Rock would file a motion this week asking U.S. District Judge James Boasberg to rule on the merits of the pipeline, primarily on the question of whether the project should have gone through an environmental impact statement (EIS) review before moving forward.
Officials did not conduct such a review before approving construction permits last year. Obama administration officials in December ordered an EIS for the line, but President Trump in January issued a memo nixing that review and allowing the project to move forward.
Government lawyers have insisted they do not need to conduct an environmental impact statement of the project and have defended the process that led to the construction permits being approved.
Boasberg gave his preliminary approval as well, when he denied a Standing Rock request to halt construction on the pipeline in September, though that decision was based on a different section of the law.
Dakota Access lawyers say the company has followed environmental laws and protected the region’s cultural sites from the pipeline. The company said it was losing millions of dollars a week before it received the easement, and a lawyer for the company said it doesn’t intend to turn back now.
“The company is moving as quickly as it can to complete the pipeline to make up for lost time over the last couple of months,” lawyer David Debold said during a hearing on Monday. “We’re not in a position where we can agree to any stoppage of the work.”
The company also needs to fend off a challenge from the Cheyenne River Sioux, which is arguing the pipeline violates its religious freedom.
The tribe — whose reservation abuts Lake Oahe on its southern end in South Dakota — uses the lake’s water for religious events like the inipi sweat lodge ceremony. Running a pipeline under the lake, even if it doesn’t leak oil, the tribe argues, would “imbalance and desecrate” its waters.
The tribe believes in the “prophecy of the black snake,” that “some day a big black snake would come and destroy our way of life,” its chairman, Harold Frazier, said. “We feel that is this pipeline, because it could.”
Legal experts question the potential effectiveness of the tribes’ arguments.
Douglas Laycock, a law professor at the University of Virginia, said the Cheyenne River Sioux complaint is likely to run into problems because it hasn’t made a property rights claim on the Lake Oahe crossing.
Carl Tobias, a professor at the University of Richmond Law School, said pursuing an environmental impact statement could be a strong argument, but that time is running out.
“I think pressing for the EIS is good; it’s just the timing and all the pressure and what the president has said makes it very difficult,” Tobias said.
“The options are narrow and dwindling. Something could happen, but I don’t know. I don’t see how they move to where they would like to be.”
Defeat in district court for either side is likely to trigger an appeal, so the legal fight over Dakota Access is far from over, a frustrating prospect for developers and their industry supporters.
But pipeline opponents have vowed to put pressure on the project in other ways, including a March rally against the pipeline in Washington.
“Lakota people love to fight, and this tribe will be back to continue this fight,” Cheyenne River Sioux lawyer and member Nicole Ducheneaux said Monday. “We will not quit fighting until this pipeline has stopped.”