Featured image by Lucas Reynolds. Judge James Boasberg’s 91-page decision says U.S. Army Corps ‘did not adequately consider’ oil spill impacts; no ruling on whether to keep DAPL operational
The U.S. Army Corps of Engineers violated the law in its fast-tracked approval of the Dakota Access Pipeline (DAPL), a U.S. District Court Judge in Washington D.C. has ruled. Judge James Boasberg said the Corps did not consider key components of the National Environmental Policy Act (NEPA) in granting the Lake Oahe easement under the Missouri River when directed to do so by President Donald Trump shortly after his swearing-in.
The Standing Rock Sioux Tribe, with the Cheyenne River Sioux as interveners, had challenged the approval on the grounds that adequate environmental study had not been conducted. Boasberg agreed on many points, though he did not rule on whether the pipeline should remain operational. It has been carrying oil since June 1.
“Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not 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,” Boasberg said in his 91-page decision. “To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.”
A status conference will be held next week, according to the environmental law firm EarthJustice, which is representing the tribes in this case. Energy Transfer Partners, the pipeline’s builders, did not respond to requests for comment by press time.
“This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing,” said Standing Rock Sioux Chairman Dave Archambault II in a statement. “The previous administration painstakingly considered the impacts of this pipeline and President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests. We applaud the courts for protecting our laws and regulations from undue political influence, and will ask the Court to shut down pipeline operations immediately. ”
The fight over the 1,172-mile-long pipeline that runs hotly contested through four states has been the source of controversy since it was first proposed. The Standing Rock Sioux Tribe became the flashpoint for the issue when thousands of water protectors and hundreds of tribes gathered at camps along the Missouri River over the summer of 2016. They were protesting the routing of the pipeline through treaty lands—especially in light of the fact that it had been rerouted from more affluent Bismarck for the same reason the tribe didn’t want it nearby, because of the danger to drinking water—in a conflict that involved a militarized police force.
“This decision marks an important turning point. Until now, the rights of the Standing Rock Sioux Tribe have been disregarded by the builders of the Dakota Access Pipeline and the Trump Administration—prompting a well-deserved global outcry,” said Earthjustice attorney Jan Hasselman in a statement. “The federal courts have stepped in where our political systems have failed to protect the rights of Native communities.”
Featured image: The Ogiek preparing to receive the African Court’s landmark decision after awaiting close to a decade. Photo: Andrew Songa on twitter @drewfremen
The African Court on Human and Peoples Rights, at its 45th session on May 26, 2017 in Arusha, Tanzania, delivered a long-awaited and unanimous judgment against the Kenya government in a case brought before it by the Ogiek Indigenous Peoples.
The African Commission on Human and Peoples Rights had filed the case after the applicant proved consistent violations and the denial of the human and land rights of the Ogiek by the Republic of Kenya.
In November 2009, when the Kenyan Forest Service (KFS) delivered a potentially fatal blow against the Ogiek with the designation of an eviction order in October 2009 against the Ogiek and anyone else within the Mau Forest Complex–the ancestral homeland of the Ogiek–within 30 days, the African Court had issued an order to suspend the implementation of the eviction notice.
In March 2013, the African Court issued additional provisional measures requiring the Kenyan Government to stop any land transactions in the Mau Forest and refrain from taking any action that would harm the case, until a decision had been reached. This order, however, has never been respected by the Kenyan state.
After dismissing the numerous objections of the government of Kenya, the African Court delivered in Arusha a comprehensive judgement and a very clear ruling, read out over almost 2 hours by Hon. Justice Agustino Ramadani, the former President of the African Court.
The court found that the government of the Republic of Kenya illegally evicted members of the Ogiek community from the Mau Forest and has continuously violated the rights of the Ogiek under Articles 1, 2, 8, 14, 17 (2/3), 21 and 22 of the African Charter on Peoples and Human Rights.
The Republic of Kenya given 6 months to implement required remedies
Concerning the demand for reparations and compensation, the Ogiek have 90 days to file an application and the Kenya state has 90 days to respond to the demands. After this period, the African Court will rule on the reparations to be awarded to the Ogiek community and its victims of abusive state power.
This article was originally published by ECOTERRA Intl. It has been edited for Intercontinental Cry under a Creative Commons Non-Commercial Share-Alike License.
Join us for a flash rally outside of the Annual General Meeting of Copper One – a mining company that has been relentlessly pursuing a claim on Barriere Lake’s land despite firm and repeated refusals by the community.
Community members will be driving to Toronto from Barriere Lake to attend the meeting and tell them there is no possible way they will ever get community consent to drill on Barriere Lake’s unceded Algonquin territory. Just like they’ve been doing since 2011.
The company’s claim covers a large area of the La Vérendrye wildlife reserve and a neighbouring area including the headwaters of the Ottawa River.
In spite of a government decision to suspend the company’s mining claims earlier in 2017, Copper One has repeatedly stated its intention to begin exploratory drilling on the territory of the Algonquins of Barriere Lake.
The Algonquins of Barriere Lake have consistently refused mining exploration on the territory claimed by Copper One. This traditional and current-use territory of the community has been subject to agreements between the community and the governments of Quebec and Canada concerning the joint management of renewable resources, namely the Trilateral Agreement of 1991 and the Bilateral aggreement of 1998. The community has accepted some forms of development on this territory, but has repeatedly stated that mining is not acceptable.
The community objects to the Quebec’s Mining Act’s failure to require consultation with indigenous nations. The Mining Act also fails to allow integrated land use planning in respect of indigenous peoples’ rights and aspirations, including the possibility of saying “no” to mining claims located in culturally or ecologically sensitive areas.
The African Court on Human and Peoples Rights, at its 45th session on 26 May 2017 in Arusha, will deliver a long-awaited judgment on a case brought before it, by the Ogiek indigenous peoples against the Kenyan government, for consistent violations and denial of their land rights.
‘This case is of fundamental importance for indigenous peoples in Africa, and particularly in the context of the continent-wide conflicts we are seeing between communities, sparked by pressures over land and resources,‘ says Lucy Claridge, Minority Rights Group International’s (MRG) Legal Director. ‘Ultimately the Court will be ruling on the crucial role of indigenous peoples in the conservation of land and natural resources, and consequently, the mitigation of climate change in a region currently ravaged by drought and famine.’
The Ogiek, 35, 000 of whom are the victims in this landmark case, live in the Mau Forest Complex in the Rift Valley of Kenya. They are one of the last remaining forest-dwelling communities and among the most marginalised indigenous peoples in Kenya. They allege eight violations of their rights to life, property, natural resources, development, religion and culture by the Kenyan government under the African Charter on Human and Peoples’ Rights, to which Kenya is a signatory.
This is the first time the African Court, in operation since 2006, will rule on an indigenous peoples’ rights case and is by far the largest ever case brought before the Court. It was originally lodged with the African Commission on Human and Peoples’ Rights, but was referred for the first time in history to the Court on the basis that it evinces serious and mass human rights violations. MRG, Ogiek Peoples’ Development Program (OPDP) and CEMIRIDE were the three original Complainants before the African Commission.
‘This judgment will be a huge milestone for the Ogiek community. We are optimistic that it will be positive, and crucially, that it will be respected by the Kenyan government, including implementation, so that Ogiek can feel complete and enjoy all the basic rights like every other Kenyan,’ says Daniel Kobei, Executive Director of OPDP.
The case was heard by the Court in November 2014. MRG delivered an oral intervention on behalf of the original Complainants, whilst two Ogiek community members and other expert witnesses gave testimony. MRG supported 25 Ogiek community members to attend the hearing, and supported a further 40 to view the hearing in Kenya via a live stream from the Court.
In March 2013, the African Court issued a provisional measures order requiring the Kenyan Government to stop land transactions in the Mau Forest and refrain from taking any action which would harm the case, until it had reached a decision. This order unfortunately has not been respected.
For decades the Ogiek have been routinely subjected to arbitrary forced evictions from their ancestral land in the Mau Forest by the government, without consultation or compensation. This has had a detrimental impact on the pursuit of their traditional lifestyle, religious and cultural life, access to natural resources and their very existence as an indigenous people. The Ogiek have a spiritual, emotional and economic attachment to the forest. They rely on it for food, shelter and identity.
Minority Rights Group International is a non-governmental organization working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide. We work with more than 150 partners in over 50 countries.
Daniel Kobei, Ogiek Peoples’ Development Program Executive Director (English, Swahili)
M: +254 722433757
T: +254 512213803
E: dkobei@yahoo.com / opdp@ogiekpeoples.org
TUCSON, AZ— President Trump’s border wall threatens 93 endangered and threatened species, including jaguars, ocelots, Mexican gray wolves and cactus ferruginous pygmy owls, according to a new study by the Center for Biological Diversity.
The study also found that 25 threatened or endangered species have designated “critical habitat” on the border, including more than 2 million acres within 50 miles of the border.
“Trump’s border wall is a disaster for people and wildlife alike,” said Noah Greenwald, endangered species director at the Center. “It could drive magnificent species like the jaguar and ocelot to extinction in the United States.”
The new study identified all threatened, endangered and “candidate” species (those being considered for protection) that have ranges near or crossing the border. These include 57 endangered species, 24 threatened species, 10 species under consideration for protection and two species of concern, golden and bald eagles. Construction of Trump’s 1,200-mile wall — along with related infrastructure and enforcement — will have far-reaching consequences for wildlife, including cutting off migration corridors, reducing genetic diversity, destroying habitat, and adding vehicles, noise and lights to vast stretches of the wild borderlands.
“The border wall won’t be effective at stopping people seeking a better life from getting to this country, but it will destroy habitat and divide wildlife populations,” Greenwald said. “Building a wall across the entirety of the border would cause massive damage to one of the most biologically diverse regions in North America and would be a boondoggle of the highest order.”
The sections of border wall that have already been built have had a range of negative effects on wildlife, including direct destruction of thousands of acres of habitat, indirect impacts from noise and light pollution, and division of cross-border wildlife populations like bighorn sheep and jaguars. The border wall would cut through the Cabeza Prieta, Buenos Aires and several other national wildlife refuges, along with Organ Pipe Cactus National Monument, Big Bend National Park and many other natural areas that, besides acting as corridors for wildlife, are national treasures.
Last month the Center and Congressman Raúl M. Grijalva (D-Ariz.), the ranking member of the House Committee on Natural Resources, sued the Trump administration over the proposed border wall and other border security measures, calling on federal agencies to conduct an in-depth investigation of the proposal’s environmental impacts.
The suit, filed in the U.S. District Court for the District of Arizona, is the first targeting the Trump administration’s plan to vastly expand and militarize the U.S.-Mexico border, including construction of a “great wall.”
The news broke Wednesday in the most banal of venues: the biweekly environmental compliance report submitted by Arlington Storage Company to the Federal Energy Regulatory Commission (FERC).
Deep in the third paragraph of section B, this wholly owned subsidiary of the Houston-based gas storage and transportation giant, Crestwood Midstream, announced that it was walking away from its FERC-approved plan to increase its storage of methane (natural gas) in unlined, abandoned salt caverns along the shoreline of Seneca Lake.
In its own words, “Arlington has discontinued efforts to complete the Gallery 2 Expansion Project.”
It was a blandly expressed ending to a dramatic conflict that has roiled New York’s Finger Lakes region for more than six years. Together with a separate—and still unresolved—plan for lakeside storage of propane (LPG) in adjacent salt caverns, Crestwood’s Arlington operation has been the focus of massive, unrelenting citizen opposition that has taken many forms.
The Gas Free Seneca Business Coalition has, at last count, 398 members. Together with the more than 100 members of the Finger Lakes Wine Business Coalition, this group has been a powerful voice in promoting wine and agri-tourism—a $4.8 billion industry in New York State—as the centerpiece of the Finger Lakes economy, deploying renewable energy systems for wineries and providing an alternative vision to Crestwood’s plan to turn the region into “the gas storage and transportation hub” for entire Northeast. In letters, petitions, press conferences, interviews and editorials, these business leaders have made clear that industrialized gas storage on Seneca Lake—with all the attendant pipelines, compressor stations, flare stacks and air pollution—is incompatible with the pristine environment on which wine and tourism depend.
Local business leaders have also hammered home the message that gas storage is all risk and no reward for the region. The gas—methane or propane—is not intended for local use. All of it would be sent, via pipeline, to burner tips far from the Finger Lakes. Moreover, shoving massive amounts of fossil fuels into crumbly salt mines creates, as it turns out, only a handful of jobs.
Meanwhile, 32 municipalities—representing 1.2 million residents—have passed resolutions against gas storage on Seneca Lake. These efforts have played an important role in generating political pressure, capturing media attention, and raising awareness among community members about the public health threats created by storing highly pressurized, explosive gases in abandoned salt caverns situated below a lakeshore in an area crossed by geological fault lines.
Seneca Lake serves as a source of drinking water for 100,000 people. Even absent earthquakes or catastrophic accidents, simply pressurizing the briny salt caverns with compressed gases may salinate the lake in ways that could potentially violate drinking water standards.
And then there’s the direct action movement. We Are Seneca Lake—in which I have participated—has engaged in protests, marches and repeated acts of civil disobedience. Since October 2014, when construction on the Arlington project was authorized to begin and all legal appeals to FERC were exhausted, more than 650 arrests have taken place at the gates of the Crestwood compressor station site on the hillside above Seneca Lake. For the act of blockading trucks on Crestwood’s driveway, some of us have gone to jail, serving sentences as long as nine days, while others have had their charges dismissed “in the interests of justice.”
As the months went by, Crestwood, waiting on remaining approvals from New York State’s Department of Environmental Conservation (DEC), did not begin construction.
We Are Seneca Lake continued protesting.
When the state clearances still did not arrive, FERC granted Crestwood a two-year extension to “accommodate the New York DEC’s underground storage approval process.”
We Are Seneca Lake continued protesting.
The power of our all-season civil disobedience movement did not lie in the daring risks that we took—no one ever scaled fences, rapelled down walls, went limp, or chained themselves to heavy equipment. We called ourselves the Girl Scouts of civil disobedience because participants engaged in actions whose sanctions were intentionally limited to violation-level charges (trespass or disorderly conduct).
Tantamount to traffic tickets, such charges do not result in criminal records (although one might choose, by refusal to pay a fine, to serve a jail sentence). This practice allowed arrestees to represent a diverse cross-section of area residents. Ranging in age from 18 to 92, Seneca Lake Defenders have included teachers, nurses, doctors, midwives, farmers, winemakers, faith leaders, town board members, military veterans, mothers, fathers, chefs, bird watchers, cancer survivors and numerous disabled individuals.
Our goal was to showcase the breadth and depth of citizen opposition to gas storage. Accordingly, we sought to make civil disobedience as inclusive as possible for as many people as possible, and, for those whose conscience so led them, as safe as possible.
We sustained our movement, season after season, by careful vetting of all participants, meticulous preparation for each action, and requiring that all those risking arrest or playing support roles undergo a training session in non-violence. As a result, We Are Seneca Lake maintained high levels of personal discipline during our actions and, through our almost ceremonial approach to civil disobedience, won the (somewhat begrudging) respect of the county sheriff and his deputies.
We did not turn away luminaries. Seneca Lake Defenders have, variously, included filmmaker Josh Fox, actors James Cromwell and John Hertzler, and environmental leaders Bill McKibben, Rachel Marco-Havens, David Braun and Wes Gillingham.
Seneca Lake Defenders blockaded while reading aloud from Pope Francis’ encyclical on climate change, while enjoying a potluck of local food, and while performing a concert. Our efforts were featured in the New Yorker and the New York Times, as well as in local and regional media. We have received messages of solidarity from around the world.
Unsurprisingly, none of the above activities are mentioned in the official explanation for why Crestwood is now abandoning its plans to expand methane storage.
Nor does it reference last month’s incident at an underground gas storage facility in rural southwestern Indiana where a well failure prompted evacuations and a highway closure. Nor the blowout in California’s gas storage field at Aliso Canyon where, from October 2015 until February 2016, more than 100,000 metric tons of methane spewed into the atmosphere, thousands of households and two schools were relocated, and many residents suffered illnesses from exposure to the emissions.
Instead, the company has this to say about why it is folding its tents:
“Despite its best efforts, Arlington has not been successful in securing long-term contractual commitments from customers that would support completion of the Gallery 2 Expansion Project. While demand for high-deliverability natural gas storage services remains robust in New York…bids for firm storage capacity which Arlington has received from time to time are not adequate to support the investment required to bring the project to completion.”
Credible? For area resident Suzanne Hunt, who, as president of HuntGreen, advises wineries about their renewable energy options, the bigger question is how to make this explanation come true over and over again. In other words, let’s use renewables to make wavering bids for fossil fuels even more unworthy of continued investment.
“The winery owners and other business leaders here didn’t just say no to gas but also collectively invested million of dollars in clean energy systems both to demonstrate their economic and technical viability and to show the state that we are serious about protecting our unique and beautiful Finger Lakes region,” Hunt said.
“As with any major transition, it has been challenging, but we are succeeding in demonstrating that renewables can meet our energy needs and enable economic growth without compromising the health and safety of people today and generations to come.”
For her mother, Joyce Hunt, who is the co-owner of Hunt Country Vineyards in Branchport, New York, the point is to demonstrate how the economic future of the region—based on agriculture, tourism and small business—is aligned with the long-term climate and energy security of the state.
“We applaud the governor and the DEC for withholding permits for natural gas storage, and we are all counting on the governor to deny the permits for LPG, recognizing that these caverns that are unfit for natural gas storage are likewise unfit for propane storage,” she said.
But is Arlington’s natural gas storage expansion project really gone for good? Maybe, maybe not. Fossil fuel infrastructure projects are always resurrectable. Even the Keystone XL pipeline is back in play. But for California native David Braun, who was arrested in a civil disobedience action at Seneca Lake last July, the point is in understanding that we are each, after all, our brother’s keeper.
“None of these gas storage facilities are a problem until they are. And once you see firsthand the kind of devastation and disruption they cause—as I have seen at Aliso Canyon—you begin to understand your moral responsibility to make sure it doesn’t happen somewhere else, to someone else,” Braun said.
“I risked arrest at Seneca Lake because we only need to look at how the last bad idea turned out to know what the next one is going to do.”
